PRESENT: All the Justices
MICHAEL W. COVEL, ET AL.
OPINION BY
v. Record No. 091343 JUSTICE WILLIAM C. MIMS
June 10, 2010
TOWN OF VIENNA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
In this appeal we consider the validity of Vienna Town
Code (“VTC”) §§ 18-258 to –280 (the “Historic Districts
Ordinance”) and §§ 18-280.1 to –280.13 (the “WHHD Ordinance”),
which create the Windover Heights Historic District (the
“WHHD”). We also consider an appeal from the denial of a
certificate of appropriateness under the WHHD Ordinance.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
The circuit court decided this case after a bench trial;
consequently, we state the facts in the light most favorable to
the Town of Vienna, the prevailing party below. Virginia Home
for Boys & Girls v. Phillips, 279 Va. 279, 282, 688 S.E.2d 284,
285 (2010).
This appeal arises from three consolidated cases involving
six parcels of land in the WHHD. Michael Covel (“Michael”)
owns two adjoining parcels, 130 Pleasant Street, N.W. and 346
Windover Avenue, N.W. Jerome and Johanna Covel own two
parcels, 224 Walnut Lane, N.W. and 222 Lovers Lane, N.W.
Matthew and Susan Stich own 200 Walnut Lane, N.W. 1 PMY
Associates (“PMY”) owns 210 Lawyers Road, N.W.
A. CASE NO. CH-2003-184618
In February 2003, Michael applied to the Windover Heights
Board of Review for a certificate of appropriateness (“COA”) to
erect a fence on his parcels. His application stated his name,
address, and telephone number, and the date. It incorporated a
plat of the fence. Michael did not respond to any other
questions on the application form, including those requesting a
list of adjacent properties; proposed materials, colors, and
finishes of the fence; and proposed landscaping changes, if
any. The application omitted required dimensional plans
showing existing and proposed buildings, structures, fences, or
signs on the parcels and photographs of the proposed fence
location.
The board of review considered Michael’s COA application
initially. At the board’s hearing, he declined to supplement
the information provided. The board then rejected his
application as incomplete and informed him “more information is
need[ed] to review for the application [but] that the Board has
no objection to the building of a fence.”
1
We refer to Michael Covel, Jerome and Johanna Covel, and
Matthew and Susan Stich collectively as “the Landowners.”
2
Michael appealed to the town council. He again declined
to provide additional information. Following a hearing the
council denied his application.
Michael then appealed to the circuit court. He challenged
the denial of his COA application and sought a declaratory
judgment that (a) the WHHD Ordinance was unconstitutionally
vague, (b) the Historic Districts Ordinance was enacted in
violation of Code § 15.2-2306, and (c) the WHHD Ordinance was
enacted in violation of VTC § 18-261. 2 The Town demurred and
the circuit court ruled that the WHHD Ordinance was not
unconstitutionally vague on its face. There is no transcript
of the circuit court’s hearing in the record and Michael did
not note any objection to the ruling on the order. No further
proceedings relevant to this appeal were conducted prior to
consolidation.
B. CASE NO. CH-2003-186629
In January 2003, before he applied for the COA, Michael
requested that his Pleasant Street parcel be withdrawn from the
WHHD. While Michael’s COA application was pending before the
board of review and his request to remove his Pleasant Street
2
Michael brought additional claims under the due process
provisions of the Virginia Constitution, the due process and
equal protection provisions of the 14th Amendment to the United
States Constitution, and 42 U.S.C. § 1983. All these claims
were either dismissed or non-suited and are not before us in
this appeal.
3
parcel from the WHHD was pending before the town council, the
Landowners simultaneously requested that the other parcels they
owned also be removed from the WHHD. The town council denied
all these requests.
Thereafter the Landowners jointly filed a pleading in the
circuit court in which they appealed from the denial of their
requests to withdraw their parcels from the WHHD and sought
declaratory judgment that the ordinances were invalid on the
grounds Michael had asserted. 3 No further proceedings relevant
to this appeal were conducted prior to consolidation.
C. CASE NO. CL-2006-7105
In November 2005, while both Case Nos. CH-2003-184618 and
CH-2003-186629 were pending before the circuit court, PMY
requested that its parcel be removed from the WHHD. The town
council denied that request, whereupon PMY appealed to the
circuit court. Although the grounds for appeal were
substantially identical to Case Nos. CH-2003-184618 and CH-
2003-186629, PMY did not seek declaratory relief challenging
the validity of the ordinances. No proceedings relevant to
this appeal were entered prior to consolidation.
3
The claims dismissed or non-suited in Case No. CH-2003-
184618 were also either dismissed or non-suited in this case.
4
D. THE CONSOLIDATED PROCEEDING
In January 2008 the circuit court entered an order
consolidating the cases with the agreement of the parties.
That order expressly incorporated into the consolidated
proceeding the court’s earlier ruling in Case No. CH-2003-
184618 that the WHHD Ordinance was not unconstitutionally vague
on its face. Neither the Landowners nor PMY noted any
objection to the ruling on the order. After a three-day bench
trial in October 2008, the circuit court entered a final order
dismissing all the appeals and denying the Landowners
declaratory relief. We awarded the Landowners and PMY this
appeal.
II. ANALYSIS
A. APPEALS FROM THE DENIAL OF MICHAEL’S COA
AND THE LANDOWNERS’ AND PMY’S REQUESTS FOR
REMOVAL OF THEIR PARCELS FROM THE WHHD
Our review of the decision of a governing body relating to
a historic district is limited by statute to “whether that
decision is ‘arbitrary and constitutes an abuse of discretion,’
or ‘is contrary to law.’ ” Norton v. City of Danville, 268 Va.
402, 407, 602 S.E.2d 126, 129 (2004) (quoting Code § 15.2-
2306(A)(3)). The decision of the governing body is presumed to
be correct. Id. at 408, 602 S.E.2d at 129-30. The party
challenging the decision has the burden of proving “it is
clearly unreasonable, arbitrary or capricious, and that it
5
bears no reasonable or substantial relation to the public
health, safety, morals, or general welfare.” Id. at 409, 602
S.E.2d at 130 (quotation marks omitted).
Where presumptive reasonableness is challenged
by probative evidence of unreasonableness, the
challenge must be met by some evidence of
reasonableness. If evidence of reasonableness
is sufficient to make the question fairly
debatable, the ordinance “must be sustained”.
If not, the evidence of unreasonableness defeats
the presumption of reasonableness and the
ordinance cannot be sustained.
Id. (quoting Board of Supervisors v. Snell Constr. Corp., 214
Va. 655, 659, 202 S.E.2d 889, 893 (1974)). An issue is "fairly
debatable when the evidence offered in support of the opposing
views would lead objective and reasonable persons to reach
different conclusions." Id. (quoting Board of Supervisors v.
Williams, 216 Va. 49, 58, 216 S.E.2d 33, 40 (1975)).
On appeal, neither the Landowners nor PMY point to any
evidence in the record to rebut the presumption of validity.
Rather, they assert that the Town’s decision to deny Michael’s
COA application and their requests to remove their parcels from
the WHHD are unreasonable, arbitrary, or capricious solely
because the underlying ordinances are invalid. We previously
have held that we may not consider whether the underlying
ordinance is invalid when considering an appeal from a
governing board’s denial of a COA. Norton, 268 Va. at 407-08,
602 S.E.2d at 129 (“Norton’s challenge to the underlying
6
ordinance . . . is barred from consideration in judicial review
of the city council's action concerning the certificate of
appropriateness.”). The appropriate method for such challenges
is by an action against the governing body. Id. at 408 n.4,
602 S.E.2d at 129 n.4 (citing Board of Zoning Appeals v.
University Square Assocs., 246 Va. 290, 295 n.2, 435 S.E.2d
385, 388 n.2 (1993)).
Accordingly, we find no error in the judgment of the
circuit court approving the Town’s denial of Michael’s COA and
the requests to remove parcels from the WHHD. We now turn to
the Landowners’ appeal from the dismissal of their claims for
declaratory relief. 4
B. THE ENACTMENT OF THE HISTORIC DISTRICTS
AND WHHD ORDINANCES
Whether an ordinance has been enacted lawfully is a
question of law we review de novo. Marble Techs., Inc. v. City
of Hampton, 279 Va. 409, 416 & n.9, 690 S.E.2d 84, 87 & n.9
(2010).
The Landowners assert that the Historic Districts
Ordinance is invalid because it exceeds the authority delegated
by the General Assembly, specifically because it refers only to
an “area” rather than buildings or structures. They argue that
the authorizing statute at the time the Town adopted the
4
This disposition is complete as to PMY because it did not
raise any claims for declaratory relief.
7
ordinance, former Code § 15.1-503.2, 5 allowed a locality to
enact a historic district ordinance only if it set forth a
historic landmark established by the Virginia Historic
Landmarks Commission or some other building or structure with
historic, architectural, or cultural significance. We
disagree.
“[C]ourts apply the plain meaning of a statute unless the
terms are ambiguous or applying the plain language would lead
to an absurd result.” Boynton v. Kilgore, 271 Va. 220, 227,
623 S.E.2d 922, 926 (2006) (citation omitted). A statute is
ambiguous “if the text can be understood in more than one way
or refers to two or more things simultaneously or when the
language is difficult to comprehend, is of doubtful import, or
lacks clearness or definiteness.” Id. at 227 n.8, 623 S.E.2d
at 926 n.8 (citation, internal quotation marks, and alterations
omitted). An absurd result describes “situations in which the
law would be internally inconsistent or otherwise incapable of
operation.” Id. at 227 n.9, 623 S.E.2d at 926 n.9 (quotation
marks omitted). When statutory language is unambiguous and
does not lead to absurd results, “courts may not interpret the
language in a way that effectively holds that the General
5
This statute was amended and subsequently reenacted as
current Code § 15.2-2306. See 1997 Acts ch. 587, 676.
8
Assembly did not mean what it actually expressed.” Hicks v.
Mellis, 275 Va. 213, 218, 657 S.E.2d 142, 144 (2008).
The Landowners do not challenge the Historic Districts
Ordinance as it first was enacted in 1975. Rather, they
challenge the ordinance as it existed when the WHHD Ordinance
was enacted in April 1979. At that time the authorizing
statute provided:
The governing body of any county or municipality
may adopt an ordinance setting forth the
historic landmarks within the county or
municipality as established by the Virginia
Historic Landmarks Commission, and any other
buildings or structures within the county or
municipality having an important historic,
architectural or cultural interest, and any
historic areas within the county or municipality
as defined by § 15.1-430(b) of the Code of
Virginia, amending the existing zoning ordinance
and delineating one or more historic districts
adjacent to such landmarks, buildings and
structures, or encompassing such historic areas;
provided, that such amendment of the zoning
ordinance and the establishment of such district
or districts shall be in accordance with the
provisions of article 8 (§ 15.1-486 et seq.),
chapter 11, of Title 15.1 of the Code of
Virginia. The governing body may provide for an
architectural review board to administer such
ordinance. Such ordinance may include a
provision that no building or structure,
including signs, shall be erected,
reconstructed, altered or restored within any
such historic district unless the same is
approved by the architectural review board or,
on appeal, by the governing body of such county
or municipality as being architecturally
compatible with the historic landmarks,
buildings or structures therein.
9
Former Code § 15.1-503.2(a) (Supp. 1978). Former Code § 15.1-
430(b), referenced therein, defined “[h]istoric area” to mean
“an area containing buildings or places in which historic
events occurred or having special public value because of
notable architectural or other features relating to the
cultural or artistic heritage of the community, of such
significance as to warrant conservation and preservation.”
Former Code § 15.1-430(b) (Supp. 1978).
Considered together, these sections authorized a locality
to create a historic district even if it contained no buildings
or structures. While former Code § 15.1-503.2(a) is
conjunctive by allowing the governing body to adopt an
ordinance setting forth “the historic landmarks within the
county or municipality as established by the Virginia Historic
Landmarks Commission, and any other buildings or structures
within the county or municipality having an important historic,
architectural or cultural interest, and any historic areas
within the county or municipality as defined by § 15.1-430(b),”
the relevant language for this case is disjunctive. It permits
the governing body to “delineat[e] one or more historic
districts adjacent to such landmarks, buildings and structures,
or encompassing such historic areas.” Former Code § 15.1-
503.2(a) (Supp. 1978) (emphasis added). Former Code § 15.1-
430(b) likewise is disjunctive: a historic area may contain
10
“buildings or places.” Code § 15.1-430(b) (Supp. 1978)
(emphasis added).
The differentiation in former Code § 15.1-503.2(a) between
historic districts adjacent to landmarks, buildings, and
structures and districts encompassing historic areas, together
with the language in former Code § 15.1-430(b) including areas
that do not contain buildings in the definition of historic
areas, evidences clear intent by the General Assembly to permit
localities to create historic districts without landmarks,
buildings, or structures. Accordingly, the Landowners’
argument that the Historic Districts Ordinance is invalid
because it does not identify existing landmarks, buildings, or
structures fails.
The Landowners also assert that the WHHD Ordinance is
invalid because it was not enacted in the manner set forth by
VTC § 18-261. That section requires the planning commission to
prepare a detailed report prior to the creation of a historic
district. The Town responds that the requirements of VTC § 18-
261 did not apply to the enactment of the WHHD Ordinance. We
disagree. By its terms, VTC § 18-261 governs amendments to the
Historic Districts Ordinance, “including the establishment of
historic districts.” Moreover, the enacting clause of the WHHD
Ordinance states that the Historic Districts Ordinance is
“amended by adding Section 18-280.1.”
11
The Town argues alternatively that the WHHD Ordinance is
saved by Code § 15.2-1427(C). The Town contends this statute
cures any non-constitutional defect in the enactment of an
existing ordinance. The Landowners respond that the statute
cannot save the WHHD Ordinance because VTC § 18-261 imposes
specific prerequisites to the creation of a historic district.
Therefore, they argue, the general terms of Code § 15.2-1427(C)
must give way. The Landowners also suggest that applying Code
§ 15.2-1427(C) to save the WHHD Ordinance would conflict with
our decision in Gas Mart Corp. v. Board of Supervisors, 269 Va.
334, 611 S.E.2d 340 (2005).
Code § 15.2-1427(C) provides that “[a]ll ordinances or
resolutions heretofore adopted by a governing body shall be
deemed to have been validly adopted, unless some provision of
the Constitution of Virginia or the Constitution of the United
States has been violated in such adoption.” The statute was
reenacted in its present form in 2000. 2000 Acts ch. 895. By
its unambiguous terms, it bars all non-constitutional
challenges to the adoption of ordinances existing at that time.
Thus, regardless of how specific VTC § 18-261’s requirements
may have been when the Town enacted the WHHD, the Landowners
cannot challenge that enactment today.
12
The Landowners’ reliance on Code § 15.2-2315 and Gas Mart
is unavailing. Code § 15.2-2315 does not limit the effect of
Code § 15.2-1427(C). Code § 15.2-2315 provides that:
Whenever the regulations made under authority of
this article require a greater width or size of
yards, courts or other open spaces, require a
lower height of building or less number of
stories, require a greater percentage of lot to
be left unoccupied or impose other higher
standards than are required in any other statute
or local ordinance or regulation, the provisions
of the regulations made under authority of this
article shall govern. Whenever the provisions of
any other statute or local ordinance or
regulation require a greater width or size of
yards, courts or other open spaces, require a
lower height of building or a less number of
stories, require a greater percentage of lot to
be left unoccupied or impose other higher
standards than are required by the regulations
made under authority of this article, the
provisions of such statute or local ordinance or
regulation shall govern.
The Landowners argue that the words “other higher
standards” embrace the higher standards imposed by VTC § 18-261
for the enactment of the WHHD Ordinance. However, the context
does not support this interpretation. “When general words and
specific words are grouped together, the general words are
limited and qualified by the specific words and will be
construed to embrace only objects similar in nature to those
objects identified by the specific words.” Andrews v. Ring,
266 Va. 311, 319, 585 S.E.2d 780, 784 (2003). Each of the
terms associated with “higher standards” refers to sizes,
13
heights, or percentages. These terms do not include the
prerequisites for enacting an ordinance, such as the completion
of reports. Accordingly, Code § 15.2-2315 is not applicable.
Similarly, Gas Mart is distinguishable. In that case we
compared the general requirements for enacting ordinances set
forth in Code § 15.2-1427(F) with the specific requirements for
enacting zoning ordinances set forth in Code §§ 15.2-2204 and
15.2-2285. We applied the familiar principle of statutory
interpretation that “when one statute speaks to a subject
generally and another deals with an element of that subject
specifically, the statutes will be harmonized, if possible, and
if they conflict, the more specific statute prevails.” 269 Va.
at 350, 611 S.E.2d at 348.
Unlike Gas Mart, this case does not require us to
harmonize two conflicting statutes of equal dignity. This case
involves Code § 15.2-1427(C), a statute curing non-compliance
with procedural requirements in the enactment of ordinances,
and VTC § 18-261, an ordinance setting forth such procedural
requirements. It is well settled that when a statute and an
ordinance conflict, the statute must prevail. Code § 1-248;
City Council of Alexandria v. Potomac Greens Assocs. P’ship,
245 Va. 371, 378, 429 S.E.2d 225, 228 (1993) (citing City of
Norfolk v. Tiny House, Inc., 222 Va. 414, 421, 281 S.E.2d 836,
840 (1981)); King v. Arlington County, 195 Va. 1084, 1090, 81
14
S.E.2d 587, 591 (1954). Gas Mart applies when a conflict
arises between two statutes. It does not apply when the
conflict arises between a statute and an ordinance.
Accordingly, there is no error in the judgment of the
circuit court upholding the ordinances as validly enacted.
C. THE VAGUENESS CHALLENGE TO THE WHHD ORDINANCE
The scope of the Landowners’ argument on this issue is
limited by the procedural posture of their appeal. While they
argue the WHHD Ordinance is unconstitutionally vague both
facially and as applied, the circuit court dismissed Michael’s
facial challenge and subsequently dismissed the Landowners’
challenge in the consolidation order by incorporating its
ruling on Michael’s facial challenge. 6 Neither Michael
individually nor the Landowners collectively preserved any
objection. 7 Consequently, we will not consider their facial
challenge on appeal. Rule 5:25.
6
Specifically, Michael argued that the WHHD Ordinance was
unconstitutionally vague on its face because it “contains no
adequate and objective standards, guidelines or other rational
criteria for evaluating applications for certificates of
appropriateness.” The Landowners’ challenge is identical. The
criteria for evaluating an application for a certificate of
appropriateness are found in VTC § 18-280.8. The circuit court
expressly held that this section is not unconstitutionally
vague on its face.
7
No objection appears on the face of the relevant orders
and the record includes no transcript of the relevant hearings
where oral objections may have been stated. “When the
appellant fails to ensure that the record contains transcripts
or a written statement of facts necessary to permit resolution
15
The circuit court also determined that the Landowners
lacked standing to bring an as-applied challenge to the WHHD
Ordinance in Case No. CH-2003-186629 because the WHHD Ordinance
sets forth standards by which the Town grants or denies COAs
and the Landowners did not apply for COAs in that case. The
Landowners did not assign error to that ruling so their as-
applied challenge in Case No. CH-2003-186629 is waived. Rule
5:17(c); see also Kondaurov v. Kerdasha, 271 Va. 646, 658, 629
S.E.2d 181, 188 (2006) (“[A] legal decision . . . unchallenged
in a subsequent appeal when the opportunity to do so existed[]
becomes the law of the case . . . and the parties are deemed to
have waived the right to challenge that decision at a later
time.”) Thus, all that remains before us is Michael’s as-
applied challenge in Case No. CH-2003-184618.
Whether the WHHD Ordinance is unconstitutionally vague is
a question of law we review de novo. Volkswagen of Am., Inc.
v. Smit, 279 Va. 327, 335, 689 S.E.2d 679, 684 (2010).
Our review of the ordinance begins with the
principle that duly enacted laws are presumed to
be constitutional. Marshall v. Northern
Virginia Transp. Auth., 275 Va. 419, 427, 657
S.E.2d 71, 75 (2008); In re Phillips, 265 Va.
81, 85, 574 S.E.2d 270, 272 (2003); Yamaha Motor
Corp., U.S.A. v. Quillian, 264 Va. 656, 665, 571
S.E.2d 122, 126 (2002); Finn v. Virginia
Retirement System, 259 Va. 144, 153, 524 S.E.2d
125, 130 (2000). We are required to resolve any
of appellate issues, [the issues] affected by the omission
shall not be considered.” Rule 5:11(b).
16
reasonable doubt concerning the
constitutionality of a law in favor of its
validity. In re Phillips, 265 Va. at 85-86, 574
S.E.2d at 272; Finn, 259 Va. at 153, 524 S.E.2d
at 130; Walton v. Commonwealth, 255 Va. 422,
427, 497 S.E.2d 869, 872 (1998). Thus, if a
statute or ordinance can be construed reasonably
in a manner that will render its terms definite
and sufficient, such an interpretation is
required. See INS v. St. Cyr, 533 U.S. 289, 299-
300 (2001); United States v. Harriss, 347 U.S.
612, 618 (1954); Pedersen v. City of Richmond,
219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979).
Tanner v. City of Va. Beach, 277 Va. 432, 438-39, 674 S.E.2d
848, 852 (2009).
“The constitutional prohibition against vagueness derives
from the requirement of fair notice embodied in the Due Process
Clause” and ensures that a law “be sufficiently precise and
definite to give fair warning” of what it requires. Id. at
439, S.E.2d at 852; accord Volkswagen, 279 Va. at 337, 674
S.E.2d at 852 (a law “may survive a vagueness challenge if the
language . . . makes clear what [it] prohibits and what is
required in order to comply”). Its purpose is to safeguard
against the arbitrary and discriminatory application of the law
when a legislative act permits a subjective interpretation by
those charged with its enforcement. Tanner, 277 Va. at 439,
674 S.E.2d at 852.
The WHHD Ordinance prohibits the erection of a fence
without a COA. VTC § 18-280.4(A)(1). An applicant for a COA
must provide “a house location survey or dimensional drawing of
17
the subject property showing . . . all existing buildings,
accessory buildings, structures, fences or signs” and the
proposed location of the fence. VTC § 18-280.7(A). Michael
did not comply with these requirements. The ordinance also
requires the Town to consider the materials used to construct
the fence and the similarity of its features with the features
of existing “buildings, accessory buildings, structures, fences
or signs in the immediate surroundings.” VTC § 18-280.8(A)(3)-
(4). Michael refused to provide the necessary information
about his proposed fence for the Town’s consideration. 8
This is not a case where the Town considered Michael’s
application and applied vague criteria subjectively to arrive
at an arbitrary or discriminatory result. The Town could not
have done so because it lacked the required information from
Michael to make any decision based on the criteria set forth in
VTC § 18-280.8(A). Rather, the Town made an objective decision
that Michael’s application was incomplete.
Consequently, we find that insofar as the WHHD Ordinance
applied to Michael in Case No. CH-2003-184618, it required him
to submit a complete application for the Town’s review. The
8
To the extent that Michael argues the WHHD Ordinance does
not set forth the existing buildings, structures, fences or
signs the Town “uses as standards for comparison in making the
determination with respect to an application for a COA,” we
find that VTC § 18-280.8(A)(4) sufficiently sets forth the
standard as the existing buildings, structures, fences or signs
“in the immediate surroundings” within the WHHD.
18
information required by the ordinance to render an application
complete is not vague. VTC §§ 18-280.7 and 18-280.8(A) are
“sufficiently precise and definite to give fair warning” to
Michael of the information he was required to provide. He
repeatedly declined to supply this information.
Accordingly, on these facts we find no error in the
judgment of the circuit court dismissing Michael’s as-applied
challenge to the WHHD Ordinance.
III. CONCLUSION
For the reasons set forth above, we will affirm the
judgment of the circuit court.
Affirmed.
19