PRESENT: All the Justices
EDDIE DEERFIELD, ET AL.
OPINION BY
v. Record No. 111144 ELIZABETH A. McCLANAHAN
April 20, 2012
CITY OF HAMPTON, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Westbrook J. Parker, Judge Designate
The dispositive issue in this appeal is whether
appellants, Eddie Deerfield, Joan Charles, Sandra Canepa,
Shirley Gellis, and Mary Ashley, comprising the Committee of
Petitioners of the Buckroe Beach Bayfront Park Petition (the
"Committee"), had standing under the City of Hampton Charter
(the "City Charter") to institute the instant declaratory
judgment action against appellees, the City of Hampton (the
"City") and POH 2010 LLC ("POH"). In its complaint, the
Committee sought an order (i) declaring that POH's proposed
development of a certain residential subdivision located in the
City was unlawful, and (ii) enjoining such development. We
conclude the Committee lacked standing to bring this action
based on the limited authority granted to the Committee by the
City Charter. The City Charter, under its referendum
provisions, restricted the Committee's activities to pursuing a
petition to repeal a newly enacted City zoning ordinance
permitting the proposed development. For that reason, we will
affirm the judgment of the circuit court dismissing the
Committee's complaint.
BACKGROUND
The Committee filed suit for declaratory judgment against
the City and POH in the Circuit Court for the City of Hampton,
pursuant to Code §§ 8.01-184 and -186. As alleged in its
complaint, the Committee's dispute with the City and POH arose
over actions of the City to allow POH to develop a residential
subdivision on certain property located in the Buckroe Beach
area of the City (the "Buckroe Beach Property"). Initially,
the Buckroe Beach Property was not zoned for such development.
On June 10, 2009, however, the Hampton City Council (the "City
Council") approved an ordinance that rezoned the Buckroe Beach
Property to a classification which permitted POH's proposed
development of the property.
As the Committee further alleged, in response to passage
of this ordinance the Committee was established, pursuant to
the City Charter, to circulate and file a petition for a
referendum on the ordinance. The Committee subsequently
obtained the signatures of the requisite number of qualified
voters and, on July 8, 2009, timely filed the petition with the
City requesting, pursuant to the City Charter, (a) that the
City Council repeal the ordinance, or (b) that a City-wide
referendum on the ordinance be conducted if the City Council
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did not repeal the ordinance. On August 12, 2009, "as a direct
result" of the Committee's petition, the City Council repealed
the ordinance, which had been approved "as a predicate to the
development and construction of the Buckroe Beach Property by
POH 2010 LLC, and restored the property to the preceding zoning
classification that did not permit or authorize such
development and construction."
Nevertheless, as alleged by the Committee, POH, with the
City's assent, "manifested a present and actual intention" to
proceed with the development of the Buckroe Beach Property in
violation of the City's existing zoning ordinances and, in
particular, "the rezoning effected by the [Committee's]
[p]etition." The Committee then concluded by alleging that
"there exists an actual antagonistic assertion of right by the
[Committee] and the citizens whom [it] represent[s] and a
denial of that right" by the City and POH. In its request for
relief, the Committee accordingly asked for a declaration that
the actions of the City and POH in furtherance of the subject
development of the Buckroe Beach Property were "unauthorized
and unlawful," and for enjoinment of the development.
The City and POH filed various defensive pleadings to the
Committee's suit for declaratory judgment, including demurrers
based on the Committee's alleged lack of standing, and, in the
alternative, pleas in bar based on the Committee's alleged
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failure to exhaust administrative remedies prior to filing this
action. In the demurrers addressing standing, the City and POH
asserted, among other things, that the Committee failed to
allege any facts showing that it had "a 'right' asserted and
denied related to the development of the [Buckroe Beach]
Property, justifying standing to adjudicate such a right" in a
declaratory judgment action brought under Code §§ 8.01-184 and
-186. As to the pleas in bar, the City and POH asserted that
the City's zoning administrator decided in a "Vested Rights
Determination" issued on September 10, 2009, that POH had a
vested right to develop the Buckroe Beach Property "despite the
repeal of the now-former zoning ordinance"; and that the
Committee failed to appeal that determination. Thus, according
to the City and POH, the Vested Rights Determination became
final, and was not subject to collateral attack by the filing
of the instant action.
In a hearing on their defensive pleadings, the City and
POH presented evidence regarding the City administrator's
Vested Rights Determination in favor of POH, including the
Committee's failure to appeal the determination. The circuit
court subsequently issued a letter opinion holding that the
Committee had standing to file the instant action, but that it
did not exhaust its administrative remedies when it failed to
appeal the City administrator's Vested Rights Determination "in
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order to gain access to circuit court jurisdiction."
Accordingly, the circuit court entered final judgment
dismissing the Committee's complaint in this case.
ANALYSIS
We awarded the Committee this appeal on the issue whether
the circuit court erred in holding, upon the City's and POH's
pleas in bar, that this declaratory judgment action was barred
because of the Committee's purported failure to exhaust
administrative remedies before availing itself of the court's
jurisdiction. We also awarded the City an appeal on its
assignment of cross-error on the issue whether the circuit court
erred when it denied the City's and POH's demurrers and held
that the Committee had standing under the City Charter to file
this action. Because we conclude this assignment of cross-error
is dispositive, we do not address the Committee's assignment of
error or the City's other assignment of cross-error asserting
the circuit court erred in not dismissing this action as moot in
light of the Vested Rights Determination.
The threshold issue whether the Committee had standing to
seek declaratory judgment upon the allegations in its
complaint, as raised by the City's and POH's demurrers, is an
issue of law subject to de novo review on appeal. Virginia
Marine Res. Comm'n v. Clark, 281 Va. 679, 686-87, 709 S.E.2d
150, 154-55 (2011); Philip Morris USA Inc. v. Chesapeake Bay
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Found., Inc., 273 Va. 564, 572, 643 S.E.2d 219, 223 (2007);
Barber v. VistaRMS, Inc., 272 Va. 319, 327-28, 634 S.E.2d 706,
711 (2006).
Under well-settled principles, "[a] plaintiff has standing
to institute a declaratory judgment proceeding if it has a
'justiciable interest' in the subject matter of the proceeding,
either in its own right or in a representative capacity." W.S.
Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 383, 478
S.E.2d 295, 299 (1996) (citing Henrico Cnty. v. F. & W., Inc.,
222 Va. 218, 223, 278 S.E.2d 859, 862 (1981) and Lynchburg
Traffic Bureau v. Norfolk & Western Ry., 207 Va. 107, 108, 147
S.E.2d 744, 745 (1966)). To establish such an interest at the
pleading stage, the plaintiff must allege facts
"demonstrat[ing] an actual controversy between the plaintiff
and the defendant, such that [plaintiff's] rights will be
affected by the outcome of the case." Id. (citing Code § 8.01-
184; Cupp v. Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d
407, 411 (1984)).
Thus, when the complaint is challenged by a demurrer
raising the issue of standing, a plaintiff has no legal
standing to proceed in the case if its factual allegations fail
to show that it actually has a " 'substantial legal right' " to
assert. Kuznicki v. Mason, 273 Va. 166, 171, 639 S.E.2d 308,
310 (2007) (quoting Cupp, 227 Va. at 589, 318 S.E.2d at 411);
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see Dunn, McCormack & MacPherson v. Connolly, 281 Va. 553, 558,
708 S.E.2d 867, 870 (2011) (explaining that "[i]n order to
survive demurrer . . . a complaint must allege[] sufficient
facts to constitute a foundation in law for the judgment
sought" (citation and internal quotation marks omitted)).
Here, the Committee bases its alleged standing upon rights
derived from the City Charter under which it was constituted.
The Committee asserts on brief that this case "arises out of a
provision of the Hampton City Charter, which provides its
citizens with a procedure to file a [p]etition for [r]eferendum
through a committee of petitioners." More specifically, the
Committee states, it was actually "empowered by statute [i.e.
the City Charter] to collect, circulate and file the [p]etition
for [r]eferendum" to repeal the subject June 10, 2009 ordinance
that allowed development of the Buckroe Beach Property. We
recognize that, on the facts here alleged, the Committee would
have been expressly empowered to do so under the provisions of
the City Charter at §§ 3A-10 and 3A-11. *
*
Section 3A-10 provides in relevant part:
If at any time within a thirty-day period
following the adoption of an ordinance, a petition,
signed by electors equal in number to twenty-five
percent of the number of electors who cast their votes
at the last preceding regular councilmanic election,
. . . be filed with the clerk of the council,
requesting that any such ordinance be repealed, or
amended, as stated in the petition, such ordinance
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shall not become operative until the steps indicated
herein shall have been taken or the time allowed for
taking such steps shall have elapsed without action.
Such petition shall state therein the names and
addresses of at least five electors, who shall be
officially regarded as filing the petition, and who
shall constitute a committee of petitioners for the
purposes hereinafter stated. . . .
City Charter § 3A-10 (emphasis added).
Section 3A-11 then provides in relevant part:
The clerk to the council shall present the
petition to the council at its next regular meeting,
and thereupon the council shall consider the
ordinance. If, within sixty days after filing of such
petition, the ordinance is not repealed or amended as
requested in such petition, the clerk to the council
shall, if so requested by a writing signed by a
majority of the committee and presented to the clerk
to the council within twenty days after the expiration
of sixty days, present to the clerk of the circuit
court of the city, the petition . . . together with a
copy of the ordinance the repeal . . . of which is
sought. The clerk of the circuit court of the city
shall examine the petition and ascertain and certify
thereon whether the persons whose names are signed
thereto are electors of the city, equal in number to
twenty-five percent of the number of electors who cast
their votes at the last preceding regular councilmanic
election . . . . If such signatures do amount to such
percentage, the committee shall present the petition
to the circuit court of the city, and thereupon the
said court shall forthwith enter an order calling and
fixing a date for holding an election for the purpose
of submitting the ordinance to the electors of the
city. Thereupon the ordinance shall ipso facto be
further suspended from going into effect until such
election shall have been held and shall then be deemed
repealed . . . upon the approval by a majority of
those voting thereon.
City Charter § 3A-11 (emphasis added).
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Seeking to extend its authority beyond the express terms
of these provisions, however, the Committee asserts that what
was before the circuit court in the instant suit for
declaratory judgment was not "separate or unrelated actions by
the Committee" in opposing the development of the Buckroe Beach
Property. Rather, this suit comprised "an evolving legal
dispute" between the Committee and the defendants over this
proposed development. In other words, says the Committee, this
suit was "spawned from the original petition for referendum
under the Hampton City Charter." The Committee further
contends that it has been "aggrieved by the violation of the
restored ordinance brought about as a result of [its] actions,"
which gave it legal standing in this case. We disagree.
The Committee had no standing to bring suit to enforce a
City ordinance in this case because it had no such right or
authority, express or implied, under any reasonable
construction of the terms of the enabling legislation under
which it was created, §§ 3A-10 and 3A-11 of the City Charter.
"In determining legislative intent, the rule is clear that
where a power is conferred and the mode of its execution is
specified, no other method may be selected; any other means
would be contrary to legislative intent and, therefore,
unreasonable." Commonwealth v. Arlington Cnty. Bd., 217 Va.
558, 577, 232 S.E.2d 30, 42 (1977). Furthermore, we have said
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that, "[c]onsistent with the necessity to uphold legislative
intent, the doctrine of implied powers should never be applied
to create a power that does not exist or to expand an existing
power beyond rational limits." Id. As this Court explained
much earlier in Page v. Belvin, 88 Va. 985, 990, 14 S.E. 843,
845 (1892), when the mode of power to be exercised is
prescribed in a municipal charter, that mode "constitutes the
measure of the power," and "[a]side from the mode designated,
there is a want of all power on the subject."
Under §§ 3A-10 and 3A-11 of the City Charter, the General
Assembly established a specific mechanism limited to the
petition for referendum on a City ordinance by the City's
qualified voters. See Acts 1981 ch. 366. The procedure allows
for at least five of those individuals to be named in the
petition to carry out the duties essential to the petition
process described in these provisions of the City Charter.
City Charter § 3A-10. These individuals, "constitut[ing] a
committee of petitioners," are "officially regarded as filing
the petition" after the requisite number of voters' signatures
on the petition have been obtained. Id. If the City Council
subsequently fails to repeal or amend the ordinance as
requested in the petition, a majority of the "committee of
petitioners" may ask the City clerk to file the petition with
the clerk of the circuit court. Then, if the petition meets
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the requirements, the "committee of petitioners" may "present
the petition to the circuit court" for entry of an order
calling for a referendum election to repeal or amend the
ordinance. City Charter § 3A-11.
Most significantly, for purposes of this case, no language
in §§ 3A-10 and 3A-11 provides or suggests a continuing role
for the "committee of petitioners" beyond the petition process.
We thus conclude that when the City Council agreed to repeal
the June 10, 2009 ordinance that allowed development of the
Buckroe Beach Property, which negated the necessity of
presenting the petition for repeal to the circuit court, the
authority of the Committee to act, and its purpose to exist,
came to an end. Following the City Council's repeal of the
ordinance, the Committee clearly had no ongoing justiciable
right or interest that could be aggrieved by the development of
the Buckroe Beach Property such as would give rise to legal
standing by the Committee to challenge the development in a
declaratory judgment action.
The circuit court therefore erred in its determination
that the Committee had standing to institute this action.
However, the circuit court reached the right result in
dismissing the Committee's complaint on other grounds. See
Perry v. Commonwealth, 280 Va. 572, 579, 701 S.E.2d 431, 435
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(2010) (applying the right result for the wrong reason
doctrine).
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court dismissing the Committee's complaint in this
case.
Affirmed.
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