Present: Hassell, C.J., Keenan, Koontz, Lemons, Agee, and
Goodwyn, JJ., and Russell, S.J.
TOWN OF LEESBURG OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 071164 June 6, 2008
STEVE GIORDANO, JR., ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Seven individuals and three homeowner’s associations (the
complainants) brought this civil action against the Town of
Leesburg (the Town), challenging a town ordinance that
increased the water and sewer rates affecting properties the
complainants owned in Loudoun County, but outside the Town.
The Town interposed a plea in bar, asserting that the action
is barred by the 30-day special statute of limitations
contained in Code § 15.2-2627. This is an interlocutory
appeal, certified pursuant to Code § 8.01-670.1, in which the
sole question is whether the circuit court erred by holding
the 30-day limitation inapplicable and overruling the Town’s
plea in bar.
Facts and Proceedings
By agreement of counsel, the plea in bar was submitted to
the circuit court on the pleadings, stipulated documents,
briefs and arguments of counsel. The essential facts are
undisputed.
By a series of agreements with Loudoun County during the
1980’s and 1990’s, the Town was given the exclusive right to
provide water and sewer services to out-of-town customers
whose properties were located within an area of Loudoun County
that includes the lands of the complainants. By an ordinance
adopted on December 13, 2005, effective January 1, 2006, the
Town Council increased the water and sewer rates by applying a
100% surcharge on the rates charged to out-of-town customers. 1
The services provided to residents and out-of-town customers
were the same and the surcharge was not related to any
difference in the cost of serving the two classes of
customers.
The Town’s plea in bar asserted that the rates were
increased in order to generate revenue necessary to raise
funds for a utility bond fund. A resolution authorizing the
issuance of utility bonds up to $63,000,000 was adopted by the
Town on February 14, 2006, providing that the bonds would be
“payable from the revenues of the Town’s water and wastewater
system,” which were pledged and made subject to a lien for
that purpose. Pursuant to Code § 15.2-2607, a certified copy
1
An initial 50% surcharge was applied in phases between
July 1, 1998 and July 1, 2000. Combined with the additional
surcharge effective January 1, 2006, out-of-town customers
paid twice as much as in-town customers for water and sewer
services beginning on January 1, 2006.
2
of the resolution was filed in the Circuit Court of Loudoun
County on February 17, 2006. The resolution made no mention
of the December 13, 2005 ordinance or the rates the Town would
charge its customers for water and sewer services.
The circuit court, reading Code §§ 15.2-2607 and 15.2-
2627 together, decided that if the bond resolution had
contained the rates to be charged the customers, 2 then the
complainants’ challenge would be barred if not made within 30
days of the filing of the certified copy of the bond
resolution with the circuit court. That deadline was 30 days
after February 17, 2006. The complainants' action was filed
October 2, 2006. Because the Town had elected not to include
the rates in the resolution, however, the circuit court held
Code § 15.2-2627 inapplicable and overruled the plea in bar.
The circuit court stayed further proceedings pending an
interlocutory appeal and entered an order certifying the four
reasons provided by Code § 8.01-670.1 that would justify an
interlocutory appeal of the ruling. 3 We awarded the Town an
interlocutory appeal.
2
The inclusion of such a provision in the resolution
would have been permitted, but not required, by Code § 15.2-
2607(6).
3
"(i) there is substantial ground for difference of
opinion, (ii) there is no clear, controlling precedent on
point in the decisions of the Supreme Court of Virginia or the
Court of Appeals of Virginia, (iii) determination of the
issues will be dispositive of a material aspect of the
3
Analysis
The pertinent paragraph of Code § 15.2-2627 provides as
follows:
For a period of thirty days after the date of the
filing with the circuit court having jurisdiction
over the locality of a certified copy of the initial
ordinance or resolution of the governing body of the
locality authorizing the issuance of bonds, any
person in interest has the right to contest the
validity of the bonds, the taxes to be levied for
the payment of the bonds, the rates, rents, fees and
other charges for the services and facilities
furnished by, for the use of, or in connection with,
any revenue-producing undertaking, the pledge of the
revenues of any revenue-producing undertaking, any
provisions which may be recited in any ordinance,
resolution, trust agreement, indenture or other
instrument authorizing the issuance of bonds, or any
matter contained in, provided for or done or to be
done pursuant to the foregoing. If such contest is
not begun within the thirty-day period, the
authority to issue the bonds, the validity of the
taxes or the pledge of revenues necessary to pay the
bonds, the validity of any other provision contained
in the ordinance, resolution, trust agreement,
indenture or other instrument, and all proceedings
in connection with the authorization and the
issuance of the bonds shall be conclusively presumed
to have been legally taken and no court shall have
authority to inquire into such matters and no such
contest shall thereafter be instituted.
Our duty in applying this provision is "to construe
the law as it is written," and we are also mindful that
"[t]o depart from the meaning expressed by the words is
to alter the statute, to legislate and not to interpret."
proceeding currently pending before the court, and (iv) the
court and the parties agree it is in the parties' best
interest to seek an interlocutory appeal." Code § 8.01-670.1.
4
Hampton Roads Sanitation Dist. Comm'n v. City of
Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978);
Faulkner v. Town of South Boston, 141 Va. 517, 524, 127
S.E. 380, 382 (1925). We have often observed that
"[w]here the General Assembly has expressed its intent in
clear and unequivocal terms, it is not the province of
the judiciary to add words to the statute or alter its
plain meaning." Jackson v. Fidelity & Deposit Co., 269
Va. 303, 313, 608 S.E.2d 901, 906 (2005). Thus, we will
presume that the legislature chose, with care, the words
it used when it enacted the statute. Id. Furthermore,
courts cannot add language to the statute the General
Assembly has not seen fit to include, and neither are
they permitted to accomplish the same result by judicial
interpretation. Id.
Although we have not previously been called upon to
construe Code § 15.2-2627, it is a part of the Public Finance
Act, now Code §§ 15.2-2600, et seq. We considered the
legislative purpose of the prior version of the present
statutory scheme in Harper v. City of Richmond, 220 Va. 727,
737, 261 S.E.2d 560, 566 (1980), and we said:
The overall statutory scheme . . . evinces a sound
legislative purpose to provide for quick validation
of bond issues. While the governing body may
proceed at any time to obtain validation, dissenters
must act with dispatch. Otherwise, if contestants
5
could proceed at any time, uncertainty would always
overhang a bond issue. Investor reluctance to
purchase under such circumstances would discourage
municipal authorities from attempting to sell the
bonds.
As the circuit court noted, Code § 15.2-2627 contains an
unusual special limitation providing that after the expiration
of the 30-day period, “no court shall have authority to
inquire into such matters.” Because of the drastic
restriction this provision imposes upon the rights of persons
aggrieved by the actions of public bodies to resort to the
courts, we will construe the statute strictly, notwithstanding
its salutary legislative purpose described in Harper. See
Steinman v. Jessee, 108 Va. 567, 572, 62 S.E. 275, 277 (1908)
(strict construction applied to statutes that could preclude a
party's opportunity to have a day in court).
The above quoted paragraph of Code § 15.2-2627 contains
two sentences. The first contains a list of subjects that may
be contested in a judicial proceeding brought by “any person
in interest” within 30 days of the filing of the bond
resolution in the circuit court. The list includes “the
rates, rents, fees and other charges for the services and
facilities furnished by . . . any revenue-producing
undertaking.” Thus, the complainants could have brought this
proceeding within 30 days of the filing of the resolution.
6
The second sentence, however, deals with a different
subject. It specifies the consequences of a contestant’s
failure to act within 30 days. Those consequences are that
(1) the authority to issue the bonds, (2) the validity of the
taxes or the pledge of revenues necessary to repay the bonds,
(3) the validity of any other provision contained in the
ordinance, resolution, trust agreement, indenture or other
instrument, and (4) all proceedings in connection with the
authorization and issuance of the bonds, will be conclusively
presumed to be lawful. The rates to be charged the customers
for the services to be provided by the public body are absent
from the list of matters potentially protected by the second
sentence, although they were included in the first. We
consider that omission to be significant.
The complainants’ pleading makes no mention of the bond
issue or of any proceedings undertaken by the Town in
connection with it. The pleading makes no attack upon the
validity of the bonds or upon any provision of any documents
executed in connection with them. It is simply an attack on
the Town’s water and sewer rates, challenging their fairness
and uniformity pursuant to Code §§ 15.2-2119 and 15.2-2143.
We agree with the circuit court’s reasoning. If the Town
had wished to include the rates to be charged to its customers
in its bond resolution, it could have done so. Code § 15.2-
7
2607(6). Those rates would then have been immunized from
attack after the expiration of 30 days by the provisions of
the second sentence of Code § 15.2-2627. The Town, however,
elected to omit the rates from its resolution, perhaps to
preserve flexibility to alter the rates at any time without
involving the rights of bondholders. The rates therefore fell
outside the protection of Code § 15.2-2627, and the circuit
court correctly decided that its 30-day limitation was
inapplicable to the complainants’ claim.
Conclusion
For the reasons stated, we will affirm the order that was
the subject of this interlocutory appeal and remand the case
to the circuit court for further proceedings.
Affirmed and remanded.
8