Miller v. Highland County

PRESENT: Hassell, C.J., Keenan, Koontz, Lemons, and Agee,
JJ., and Carrico and Lacy*, S.JJ.

LUCILE SWIFT MILLER, ET AL.

v. Record No. 062111 OPINION BY
JUSTICE BARBARA MILANO KEENAN
September 14, 2007
HIGHLAND COUNTY, ET AL.

TOM BRODY, ET AL.

v. Record No. 062489

HIGHLAND COUNTY, ET AL.

FROM THE CIRCUIT COURT OF HIGHLAND COUNTY
Paul F. Sheridan, Judge Designate

In these appeals, two issues assigned as cross-error

determine the outcome of the cases. Those issues are 1)

whether a county board of supervisors is a required party

defendant in a legal action contesting the board’s decision

to grant a conditional use permit; and 2) whether

neighboring landowners may file a declaratory judgment

action contesting a county planning commission’s decision

that a certain conditional use is in “substantial accord”

with that county’s comprehensive plan.

*
Justice Lacy participated in the hearing and decision
of this case prior to the effective date of her retirement
on August 16, 2007.

1
 I. FACTUAL BACKGROUND

In July 2004, Highland New Wind Development, LLC (New

Wind) filed an application seeking a conditional use permit

(CUP application) to build an electric generation substation

in the County on property that is located in an agricultural

zoning district, zone “A-2,” as provided in the Highland

County Zoning Ordinance (zoning ordinance). In addition to

the substation, New Wind sought approval to construct 20

wind turbines about 400 feet in height, a height that

exceeds the maximum height permitted by the zoning

ordinance.

The zoning ordinance designates zone “A-2” as a

district in which construction of an electric generation

substation is permitted only after “the [g]overning body

finds, as a fact, that the proposed use is compatible with

surrounding uses, is consistent with the intent of this

[o]rdinance and of the Land Use Element of the Comprehensive

Plan, is in the public interest, and will comply with all

other provisions of law and ordinances of Highland County or

the Town of Monterey.” The Board of Supervisors (the Board)

approved an amendment to the zoning ordinance (the height

amendment), which authorized the Board to issue conditional

use permits allowing structures that exceed the maximum

heights provided in the zoning ordinance.

2
 After conducting a public hearing on the CUP

application, the Board adopted a resolution in July 2005,

granting New Wind a conditional use permit (the CUP) for

construction of the wind turbine project. In its

resolution, the Board made several “findings,” including

that the CUP was compatible with surrounding uses, was

consistent with the intent of the zoning ordinance and the

land use element of the comprehensive plan, and would be in

compliance with all other statutes and ordinances.

Additionally, the Board’s resolution stated, “[t]he

authority granted by this [p]ermit shall be conditioned on

the receipt of all required state and federal approvals and

review pursuant to [] Code § 15.2-2232.”

In February 2006, New Wind filed an application asking

that the planning commission review the CUP under the

provisions of Code § 15.2-2232. After conducting a public

hearing on New Wind’s application, the planning commission

determined that the CUP was in “substantial accord” with the

comprehensive plan as required by Code § 15.2-2232.

II. MILLER’S PROCEEDINGS IN CIRCUIT COURT

Lucile Swift Miller and several other owners of

property adjoining the proposed wind turbine site

(collectively, Miller) filed a bill of complaint for

declaratory judgment in the circuit court, alleging that the

3
Board acted in an arbitrary and capricious manner, and

without authority, in approving the height amendment.

Miller named “Highland County, Virginia” as the sole

defendant in the bill of complaint.

Pendleton Stokes Goodall, III, and several other

landowners adjoining the proposed wind turbine site

(collectively, Goodall), filed a separate bill of complaint

for declaratory judgment against “Highland County,

Virginia,” New Wind, and the owners of the wind turbine

project site, Tamarack of Highland, LLC, and Red Oak Ranch,

LLC (Tamarack and Red Oak). Goodall alleged that the CUP

was invalid because the planning commission had not made a

determination whether the CUP was in “substantial accord”

with the comprehensive plan before the Board issued the CUP

and that, therefore, the CUP did not satisfy the

requirements of Code § 15.2-2232. Goodall also alleged,

among other things, that the CUP was inconsistent with the

comprehensive plan and was an arbitrary and capricious

exercise of the Board’s power. The circuit court

consolidated Miller’s and Goodall’s cases for trial.

New Wind, Red Oak, and Tamarack (collectively, New

Wind) filed a demurrer and a plea in bar, asserting that the

actions filed by Miller and Goodall (collectively, Miller)

were barred because Miller failed to name the Board as a

4
party to the actions. The circuit court overruled the

demurrer and plea in bar.

All parties filed motions for summary judgment. After

conducting a hearing, the circuit court granted partial

summary judgment in favor of Highland County and New Wind,

holding that the height amendment was valid and that the CUP

was properly issued even though the planning commission did

not make its “substantial accord” determination under Code

§ 15.2-2232 before the Board issued the CUP. The circuit

court denied summary judgment and ordered a bench trial on

the separate issues whether the Board made factual findings

that complied with the requirements of the ordinance before

the Board issued the CUP and whether the Board’s actions

were arbitrary and capricious.

After a trial in which several witnesses testified

concerning the subjects the Board considered when it granted

the CUP, the circuit court upheld the Board’s decision. The

circuit court concluded that the Board made factual findings

as required by the ordinance, that the evidence was

conflicting whether the Board’s decision to issue the CUP

was “reasonable,” and that, as a result, the Board’s

decision issuing the CUP was “fairly debatable.” The

circuit court entered final judgment in favor of New Wind

and the County. Miller appeals.

5
 III. MILLER’S APPEAL

In Miller’s appeal, New Wind and Highland County

(collectively, New Wind) argue as a matter of cross-error

that the circuit court erred in denying New Wind’s plea in

bar. According to New Wind, Miller’s action is barred

because she failed to name the Board as a party to the

action within 30 days after the Board’s decision as required

by Code § 15.2-2285(F). New Wind asserts that we held in

Friends of Clark Mountain Found., Inc. v. Board of

Supervisors, 242 Va. 16, 406 S.E.2d 19 (1991), that a local

governing body is a required party to an action contesting a

decision by that governing body. New Wind further contends

that “Highland County, Virginia” is not the legal equivalent

of the “Board of Supervisors of Highland County,” because

“Highland County” is a “locality,” while the Board is a

“governing body.”

In response, Miller argues that “Highland County,

Virginia” is a “locality” as defined by Code § 15.2-102, and

that Code § 15.2-1404 subjects a “locality” to being sued in

its own name regarding all matters connected with its

duties. Miller further asserts that Code § 15.2-2285(F)

does not mandate that a local governing body be named in an

action challenging one of its decisions, but only requires

that such an action be filed within 30 days of the local

6
governing body’s decision. Relying on our decision in Board

of Supervisors v. Board of Zoning Appeals, 268 Va. 441, 604

S.E.2d 7 (2004), Miller contends that a person aggrieved by

a local governing body’s decision may, pursuant to Code

§ 15.2-1404, contest that decision by naming the “locality”

as the defendant. Finally, Miller also argues that if the

Board is a necessary party, this Court may join the Board as

a party to the action or, if the Board is a required party,

the name of Highland County is a misnomer and may be amended

to name the Board. We disagree with Miller’s arguments.

We resolve these issues by considering the provisions

of several statutes, in addition to some of our prior

decisions. In interpreting the various statutory

provisions, we are presented with pure questions of law that

we consider de novo on appeal. Budd v. Punyanitya, 273 Va.

583, 591, 643 S.E.2d 180, 184 (2007); Boynton v. Kilgore,

271 Va. 220, 227, 623 S.E.2d 922, 925 (2006); Horner v.

Dep’t of Mental Health, 268 Va. 187, 192, 597 S.E.2d 202,

204 (2004); Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d

246, 248 (2003).

Our central focus is to ascertain and give effect to

the intention of the General Assembly. Boynton, 271 Va. at

227, 623 S.E.2d at 925; Chase v. DaimlerChrysler Corp., 266

Va. 544, 547, 587 S.E.2d 521, 522 (2003); Halifax Corp. v.

7
First Union National Bank, 262 Va. 91, 99, 546 S.E.2d 696,

702 (2001). We determine that legislative intent from the

words used in the statute. Crawford v. Haddock, 270 Va.

524, 528, 621 S.E.2d 127, 129 (2005); Horner, 268 Va. at

192, 597 S.E.2d at 204; Woods v. Mendez, 265 Va. 68, 74, 574

S.E.2d 263, 266 (2003). We must assume that the General

Assembly chose, with deliberation and care, the words it

employed in the statute. Jackson v. Fidelity & Deposit Co.,

269 Va. 303, 313, 608 S.E.2d 901, 906 (2005); Simon v.

Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003); Halifax

Corp., 262 Va. at 100, 546 S.E.2d at 702. Additionally,

when construing statutes that impact the same subject, we

harmonize their provisions whenever possible. Peerless Ins.

Co. v. County of Fairfax, 274 Va. 236, 244, 645 S.E.2d 478,

483 (2007); Alliance to Save the Mattaponi v. Commonwealth,

270 Va. 423, 439-40, 621 S.E.2d 78, 87 (2005); Capelle v.

Orange County, 269 Va. 60, 65, 607 S.E.2d 103, 105 (2005).

We conclude that, as employed in the statutes relevant

to this case, the terms “locality” and “board of

supervisors” are not synonymous or interchangeable. Title

15.2 of the Code, which addresses the matters raised in

these appeals, provides distinct definitions of the two

terms. A “locality,” within the meaning of Title 15.2,

“shall be construed to mean a county, city, or town as the

8
context may require.” Code § 15.2-102. In contrast, the

term “[b]oard of supervisors” refers to the “governing body

of a county.” Id.

Title 15.2 contains several additional statutes that

illustrate the General Assembly’s intent to recognize

governing bodies as entities distinct from their respective

localities. These statutes clarify that although localities

are given certain powers by statute, those powers may only

be exercised through the authority of the governing bodies.

For example, Code § 15.2-1401 provides that, generally, “all

powers granted to localities shall be vested in their

respective governing bodies.” Id. More specific to the

subject of Miller’s appeal, Code § 15.2-1425 gives the

“governing body” of each locality the authority to “adopt,

as appropriate, ordinances, resolutions and motions.” Thus,

while providing that “[a]ny locality may, by ordinance,

classify the territory under its jurisdiction” for purposes

of land use, Code § 15.2-2280, the General Assembly has

vested the actual power to make such decisions in each

locality’s governing body. See Code §§ 15.2-1401 and -1425.

Because we must assume that the General Assembly acted

with great deliberation and care in choosing the words

establishing this statutory scheme, we conclude that the

governing body of a locality is a distinct legal entity

9
authorized in Title 15.2 to exercise the statutory powers of

that locality. Thus, we are faced with the question whether

this distinct legal entity must be joined as a party

defendant in a legal action contesting its legislative

exercise of a zoning power.

In answering this question, we consider the language of

Code § 15.2-2285(F), under which the present action was

filed contesting the Board’s decision granting the CUP.

This statutory provision states:

Every action contesting a decision of the local
governing body adopting or failing to adopt a proposed
zoning ordinance or amendment thereto or granting or
failing to grant a special exception shall be filed
within thirty days of the decision with the circuit
court having jurisdiction of the land affected by the
decision. However, nothing in this subsection shall be
construed to create any new right to contest the action
of a local governing body.

In drafting Code § 15.2-2285(F), the General Assembly

employed plain language in providing a right of appeal from

various zoning decisions of a local “governing body.” The

statute fixes a 30-day period from the date of the decision

by the local “governing body” for filing an action in the

circuit court contesting such decision. The complete

absence of any language in Code § 15.2-2285(F) referring to

a “locality” indicates a legislative intent that only the

“governing body,” the entity that rendered the contested

10
decision, be a required party defendant in an action

challenging that decision.

Our decision in Friends of Clark Mountain directly

supports this construction of Code § 15.2-2285(F). There,

we were presented with a question under former Code § 15.1-

493(G), the predecessor statute of Code § 15.2-2285(F),

regarding which parties were required to be named as

defendants within the statutory period of 30 days. We

rejected the argument of a board of supervisors that all

parties having an interest in the property at issue had to

be named as party defendants within the 30-day period. We

stated that:

[W]hen the action contesting the governing body’s
decision is filed, the only required parties to a
proceeding under [the statute] are the contestant and
the local governing body. After the contesting action
has been instituted and is pending, however, and the
absence of a necessary party is noted of record, the
trial court should not adjudicate the controversy until
that party has intervened or has been brought into the
proceeding.

242 Va. at 21, 406 S.E.2d at 22; accord Riverview Farm

Assocs. v. Board of Supervisors, 259 Va. 419, 426, 528

S.E.2d 99, 102-03 (2000). Thus, in Friends of Clark

Mountain, we concluded that a local governing body is a

required party defendant to an action brought under Code

§ 15.2-2285(F) contesting certain types of zoning decisions,

11
including the type at issue here, made by the governing

body. 242 Va. at 21, 406 S.E.2d at 22.

Miller’s position advocating a contrary result in this

appeal is unavailing. Code § 15.2-1404, on which Miller

relies, details the manner in which an action may be brought

against a “locality.” This statute provides, in relevant

part: “Every locality may sue or be sued in its own name in

relation to all matters connected with its duties.” Code

§ 15.2-1404. This general provision, however, does not

address the issue whether a board of supervisors is a

required party defendant in a legal action contesting that

board’s exercise of its legislative power, but merely states

that a locality may be a plaintiff or be named as a

defendant in a legal action involving the locality’s duties.

Notably, Code § 15.2-1404 also provides that in actions

brought against a locality, process instituting such actions

“shall be served as provided in [Code] § 8.01-300.” Id.

Those provisions of Code § 8.01-300 specify that when an

action is filed against a county, service of process

generally is made on its county attorney. Code § 8.01-

300(2). However, when an action is filed against a county

board of supervisors, process may be served on “any member

of the governing body of such entity.” Code § 8.01-300(3).

In specifying these different methods of service of process,

12
the General Assembly further manifested its intent that a

“locality” and its “governing body” are not interchangeable

terms but have separate legal identities that must be

observed in initiating an action against either as a party

defendant in a legal action.

Next, we disagree with Miller’s contention that our

decision in Board of Supervisors v. Board of Zoning Appeals,

268 Va. at 446, 604 S.E.2d at 9, identified Code § 15.2-1404

as the only source of authority for bringing suit against a

locality or a local governing body. In that decision, we

simply stated that the statute enables a local governing

body to institute an action to ensure compliance with that

body’s legislative enactments. 268 Va. at 446, 604 S.E.2d

at 9. Moreover, we observe that our holding in that case is

consistent with the statutes in Title 15.2 vesting the

powers of a locality in its local governing body. See Code

§§ 15.2-1401 and -1425.

Based on our consideration of the several statutes

discussed above and on our decision in Friends of Clark

Mountain, we conclude that in an action under Code § 15.2-

2285(F) contesting a decision of a local “governing body,”

that body is a required party defendant against whom suit

must be initiated within the time limit specified in the

13
statute. Thus, we hold that the Board was a required party

defendant to Miller’s action.

We find no merit in Miller’s additional arguments that

she should be permitted to add the Board as a party to the

present appeal or to “correct” as a misnomer the naming of

“Highland County, Virginia” and name the Board in Highland

County’s stead. Even if we assume, without deciding, that

such remedies could in some cases be employed on appeal,

they are inappropriate here. Because the Board was a

required party to Miller’s action under Code § 15.2-2285(F),

the Board could not be added as a party after the 30-day

period from the date of the Board’s decision had run. See

Braddock, L.C. v. Board of Supervisors, 268 Va. 420, 426,

601 S.E.2d 552, 555 (2004) (action filed by person without

standing is nullity and could not be resurrected by addition

of parties after 30-day period set by Code § 15.2-2285(F)

had expired); see also Harmon v. Sadjadi, 273 Va. 184, 198,

639 S.E.2d 294, 301-02 (2007) (action filed by person

without standing was nullity and did not toll applicable

statute of limitations).

Likewise, Miller cannot employ the statutory remedy

provided by Code § 8.01-6 for correcting a misnomer. A

misnomer occurs when the right person or entity is

incorrectly named. Cook v. Radford Cmty. Hosp., Inc., 260

14
Va. 443, 451, 536 S.E.2d 906, 910 (2000); Swann v. Marks,

252 Va. 181, 184, 476 S.E.2d 170, 172 (1996). Here, as we

have explained, Miller did not incorrectly name the right

entity, but named a different entity. Therefore, we hold

that the circuit court erred in denying New Wind’s plea in

bar, and in entering judgment on the merits of Miller’s bill

of complaint. We further hold that Miller’s failure to name

the Board, a required party, as a defendant in the action

requires us to dismiss Miller’s appeal.

IV. BRODY’S PROCEEDINGS IN CIRCUIT COURT

Tom Brody, Patty Reum, and several other landowners who

own property near the wind turbine project site

(collectively, Brody) filed a motion for declaratory

judgment in the circuit court. Brody named as defendants

Highland County, Virginia, the Highland County Planning

Commission, and the Highland County Board of Supervisors

(collectively, the Highland County Board), and Highland New

Wind Development, LLC, Tamarack of Highland, LLC, and Red

Oak Ranch, LLC (collectively, New Wind), and sought to

invalidate the planning commission’s determination that the

CUP was in “substantial accord” with Highland County’s

comprehensive plan. Brody asked the circuit court to

declare that the planning commission did not have

jurisdiction or authority to review the CUP after it was

15
issued by the Board. Alternatively, Brody asked the circuit

court to declare, among other things, that the planning

commission decision was “not in accord with law,” was not

“in accord with the existing County comprehensive plan,” and

was “arbitrary and capricious, and void.”

The Highland County Board filed a motion for summary

judgment arguing that Code § 15.2-2232 conferred

jurisdiction on the planning commission to review the

permit, that the CUP was in “substantial accord” with the

comprehensive plan, and that Code § 15.2-2232 does not

provide to a private third-party a right of action for

persons such as Brody to contest the planning commission’s

decision. New Wind joined in the Highland County Board’s

motion for summary judgment.

Brody also filed a motion for summary judgment. In his

motion, Brody asserted that the planning commission’s

decision that the CUP was in “substantial accord” with the

comprehensive plan was invalid because it was not supported

by factual findings.

The circuit court conducted a hearing on the motions

and concluded that the planning commission’s decision that

the CUP was in “substantial accord” with the comprehensive

plan was sufficiently supported by evidence in the record,

despite the fact that the planning commission review

16
pursuant to Code § 15.2-2232 occurred after the Board issued

the permit. The circuit court granted the motions for

summary judgment filed by the Highland County Board and New

Wind but did not address the Board’s argument that Brody had

no right of action under Code § 15.2-2232. Brody appeals.

V. BRODY’S APPEAL

In Brody’s appeal, the Highland County Board argues as

a matter of cross-error that Brody’s action is barred

because Code § 15.2-2232 does not create a private third-

party right of action to challenge a planning commission’s

finding that a proposed use is in “substantial accord” with

a comprehensive plan. The Highland County Board contends

that under Code § 15.2-2232(B), only a property owner who

has been denied a conditional use permit may appeal a

planning commission’s “substantial accord” determination,

and that this right of appeal lies only to the local

governing body. The Highland County Board also asserts that

Brody’s attempted use of the declaratory judgment statutes

to challenge the planning commission’s determination is

invalid under this Court’s holding in Shilling v. Jimenez,

268 Va. 202, 597 S.E.2d 206 (2004).

Brody concedes that there is no specific statutory

right to appeal a decision by the planning commission.

However, Brody responds that under these circumstances, a

17
declaratory judgment action provides the only mechanism for

review of the planning commission determination at issue.

In addressing these arguments, we consider both the

general nature of a declaratory judgment action and the

particular language of Code § 15.2-2232. A circuit court

has the power to issue declaratory judgments under Code

§§ 8.01-184 through -191. Pursuant to this authority,

circuit courts may make “binding adjudications of right” in

cases of “actual controversy” when there is “antagonistic

assertion and denial of right.” Code § 8.01-184; Hoffman

Family, L.L.C. v. Mill Two Assocs. P’ship, 259 Va. 685, 692,

529 S.E.2d 318, 323 (2000); Blue Cross & Blue Shield v. St.

Mary’s Hosp., 245 Va. 24, 35, 426 S.E.2d 117, 123 (1993);

Erie Ins. Group v. Hughes, 240 Va. 165, 170, 393 S.E.2d 210,

212 (1990).

The purpose of the declaratory judgment statutes is to

provide a mechanism for resolving uncertainty in

controversies over legal rights, without requiring one party

to invade the asserted rights of another in order to permit

an ordinary civil action for damages. Code § 8.01-191;

Umstattd v. Centex Homes, G.P., 274 Va. ___, ___, ___ S.E.2d

___, ___ (2007) (this day decided); Hoffman, 259 Va. at 693,

529 S.E.2d at 323; Cupp v. Board of Supervisors, 227 Va.

580, 592, 318 S.E.2d 407, 413 (1984); Liberty Mutual Ins.

18
Co. v. Bishop, 211 Va. 414, 418, 177 S.E.2d 519, 522 (1970).

Thus, the remedy that may be obtained in a declaratory

judgment action is preventive relief, upon assertion of an

actual controversy. Chaffinch v. Chesapeake & Potomac Tel.

Co., 227 Va. 68, 72, 313 S.E.2d 376, 378 (1984); Bishop, 211

Va. at 419, 177 S.E.2d at 522; Williams v. Southern Bank of

Norfolk, 203 Va. 657, 662, 125 S.E.2d 803, 807 (1962).

Our declaratory judgment statutes do not create or

alter any substantive rights, or bring any other additional

rights into being. Bishop, 211 Va. at 419, 177 S.E.2d at

522; Williams, 203 Va. at 662, 125 S.E.2d at 807. We

emphasized this basic principle in our decision in Cupp v.

Board of Supervisors, stating:

The intent of the declaratory judgment statutes is
not to give parties greater rights than those which
they previously possessed, but to permit the
declaration of those rights before they mature. In
other words, the intent of the act is to have courts
render declaratory judgments which may guide parties in
their future conduct in relation to each other, thereby
relieving them from the risk of taking undirected
action incident to their rights, which action, without
direction, would jeopardize their interests.

227 Va. at 592, 318 S.E.2d at 413 (quoting Bishop, 211 Va.

at 421, 177 S.E.2d at 524) (emphasis omitted).

Viewed in this context, Brody’s pleadings do not assert

a valid request for declaratory relief because, among other

reasons, the pleadings do not seek preventive relief but

19
effectively attempt to create a right of appeal that does

not exist by statute. Code § 15.2-2232, which addresses the

planning commission’s duty to render a “substantial accord”

determination in certain cases, provides in relevant part:

(A) Whenever a local planning commission recommends
a comprehensive plan or part thereof for the
locality and such plan has been approved and adopted
by the governing body, . . . [t]hereafter, unless a
feature is already shown on the adopted master plan
. . . no street or connection to an existing street,
park or other public area, public building or public
structure, public utility facility or public service
corporation facility other than railroad facility,
whether publicly or privately owned, shall be
constructed, established or authorized, unless and
until the general location or approximate location,
character, and extent thereof has been submitted to
and approved by the commission as being
substantially in accord with the adopted
comprehensive plan or part thereof. . . .

(B) The commission shall communicate its findings to
the governing body, indicating its approval or
disapproval with written reasons therefor. The
governing body may overrule the action of the
commission by a vote of a majority of its
membership. . . . The owner or owners or their
agents may appeal the decision of the commission to
the governing body within ten days after the
decision of the commission. The appeal shall be by
written petition to the governing body setting forth
the reasons for the appeal. The appeal shall be
heard and determined within sixty days from its
filing. A majority vote of the governing body shall
overrule the commission.

Id.

Under the plain language of these statutory provisions,

only the owner of the property at issue, or the owner’s

agent, may appeal to the governing body from a “substantial

20
accord” determination of the planning commission. Notably,

the statute does not provide third parties with a right of

appeal from such a determination.

We have previously held that the declaratory judgment

statutes may not be used to attempt a third-party challenge

to a governmental action when such a challenge is not

otherwise authorized by statute. In Shilling, a neighboring

landowner filed a declaratory judgment action asking a

circuit court to declare void the creation of a certain

“family subdivision” approved under an ordinance permitting

conveyances to members of a landowner’s immediate family.

268 Va. at 205-06, 597 S.E.2d at 208. The neighboring

landowner alleged that the subdivision was “wrongfully”

approved by local officials based on misrepresentations of

fact made by the applicant. Id. at 205-06, 597 S.E.2d at

208.

The defendants filed demurrers alleging that the local

governing body was the sole entity authorized to enforce the

ordinance, and that the complainants could not seek to

enforce the ordinance provisions by using the remedy of

declaratory judgment. The circuit court sustained the

demurrers and dismissed the bill of complaint with

prejudice. Id. at 206, 597 S.E.2d at 208. We affirmed the

circuit court’s judgment, holding that the complainants did

21
not have a third-party right of action to enforce a county’s

application of its subdivision ordinance in a declaratory

judgment suit when there was no specific statutory

authorization allowing third parties this right. Id. at

208, 597 S.E.2d at 209-10.

The rationale underlying our decision in Shilling

applies equally well here. The declaratory judgment

statutes are not intended to provide, and do not create, a

right of appeal that does not otherwise exist. In

attempting to create such a right in his bill of complaint,

Brody failed to state a cause of action. Therefore, we hold

that the circuit court erred in concluding that Brody had a

right to bring an action in the circuit court challenging

the planning commission’s “substantial accord”

determination.

The circuit court, however, reached the correct result

in Brody’s case by granting the defendants’ motion for

summary judgment, although on grounds incorrectly addressing

the merits of the suit. When a circuit court has reached

the correct result for the wrong reason, we will assign the

correct reason and affirm the relevant portion of the

circuit court’s judgment. Almy v. Grisham, 273 Va. 68, 82,

639 S.E.2d 182, 189 (2007); Mitchem v. Counts, 259 Va. 179,

22
191, 523 S.E.2d 246, 253 (2000); Hartzell Fan, Inc. v. Waco,

Inc., 256 Va. 294, 303, 505 S.E.2d 196, 202 (1998).

VI. CONCLUSION

Based on our holdings in these appeals, we will reverse

the circuit court’s final judgment in favor of New Wind and

Highland County in Miller’s case, and we will dismiss

Miller’s bill of complaint with prejudice because Miller

failed to join the Board as a party to the action within 30

days of the Board’s decision. We also will affirm the

circuit court’s award of summary judgment in favor of New

Wind and the Highland County Board, because Brody failed to

assert a valid request for declaratory relief.

Record No. 062111 – Reversed and dismissed.
Record No. 062489 – Affirmed.

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