Covel v. Town of Vienna

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