Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.*
ACE TEMPORARIES, INC., ET AL.
v. Record No. 062012 OPINION BY JUSTICE DONALD W. LEMONS
September 14, 2007
CITY COUNCIL OF THE
CITY OF ALEXANDRIA, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
In this appeal, we consider whether Code § 15.2-
2286(A)(7) requires the text of an amendment to be in written
format at the time of its initiation. We also consider
whether Ordinance No. 4337 to amend the City of Alexandria
Zoning Ordinance was properly enacted pursuant to the
requirements of the Code of Virginia.
I. Facts and Proceedings Below
ACC Holdings, LLC was the landlord of Ace Temporaries,
Inc. (collectively "Ace") that operated a day labor agency at
717 Pendleton Street in the City of Alexandria. On October 7,
2003, the Alexandria Planning Commission (the "Planning
Commission") approved a motion to initiate a text amendment to
"readopt the day labor agency definition" and to amend the
Special Use Permit ("SUP") "regulations for day labor agencies
in appropriate commercial zones." On November 6, 2003, the
*
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
Planning Commission voted to "recommend approval of the text
amendment, with an amendment." Text Amendment #2003-0006 (the
"Text Amendment"), approved by the Planning Commission,
included an eighteen-month abatement period for non-conforming
day labor agencies that had not been granted a SUP. At a
public hearing on November 15, 2003, the City Council of
Alexandria (the "City Council") approved the Planning
Commission's recommendation "with an amendment that abatement
of existing agencies be no more than 12 months." On January
13, 2004, the City Council introduced and had a first reading
of the proposed ordinance to adopt the Text Amendment. Before
the meeting, the City Council received copies of the
ordinance. The copies of the ordinance that the City Council
received contained the original eighteen-month abatement
period instead of the version as amended with a twelve-month
period.
At a public hearing on January 24, 2004, the City Council
had a second reading and final passage of the ordinance to
adopt the Text Amendment. The Text Amendment was passed as
Ordinance No. 4328. When passed, the ordinance contained the
original eighteen-month abatement period, not the twelve-month
abatement period adopted as an amendment by the City Council
at the November 15th meeting.
2
Then, on February 10, 2004, the City Council had an
introduction and first reading of a proposed ordinance to
reduce "the abatement period for nonconforming day labor
agencies from 18 months to 12 months, as approved by Text
Amendment No. 2003-0006." At a public hearing on February 21,
2004, the City Council had a second reading and final passage
of Ordinance No. 4337 which reduced the abatement period for
nonconforming day labor agencies from eighteen to twelve
months.
Three days after Ordinance No. 4337 was enacted, the City
of Alexandria's Director of the Department of Planning and
Zoning sent Ace a letter stating that "your day labor agency
at 717 Pendleton Street is considered a nonconforming use."
The letter further stated that Ace was "required to cease its
operation within twelve months" from the date of the letter.
Ace appealed to the Board of Zoning Appeals for the City of
Alexandria ("BZA"). Ace also filed a request for an extension
of the twelve-month abatement period. Both requests were
denied.
Ace then filed a "Motion for Declaratory Judgment and
Injunctive Relief," which was later amended, against the City
of Alexandria and the City Council challenging the adoption of
Ordinance No. 4328 and Ordinance No. 4337. The City of
Alexandria and the City Council filed a "Cross-Bill for
3
Declaratory and Injunctive Relief" asking the trial court to
determine that Ace had violated Ordinance No. 4337 and to
"permanently enjoin Ace from continuing its use and operation
at 717 Pendleton Street."
Ace also filed a suit against the BZA. Upon a "Consent
Motion for Consolidation of Suits in Equity," Ace's suit
against the BZA was consolidated with its case against the
City of Alexandria and the City Council (defendants
collectively referred to as the "City"). Both Ace and the
City filed motions for summary judgment. After a hearing, the
trial court ordered that Ace was "PERMANENTLY ENJOINED from
continuing their operation of a day labor agency at 717
Pendleton Street in violation of City Ordinance Nos. 4328 and
4337."
Ace appeals to this Court upon four assignments of error:
1. The trial court erred by holding that the
Planning Commission's adoption of a motion to initiate a
zoning text amendment on October 7, 2003, was valid,
despite the fact that no text of an amendment was extant
at the time of the adoption.
2. The trial court erred by holding that the City
satisfied the procedural requirements of Va. Code Ann.
§ 15.2-2286(A)(7) for the enactment of Ordinance No.
4328, because Ordinance No. 4328 was not properly
initiated.
3. The trial court erred by holding that the City
satisfied the procedural requirements of Va. Code Ann.
§ 15.2-2286(A)(7) for the enactment of Ordinance No.
4337, because Ordinance No. 4337 was never initiated by
motion or resolution.
4
4. The trial court erred by holding that the City
satisfied the procedural requirements of the City Charter
and City Code for the enactment of Ordinance No. 4328,
given that the amendment thereto of the provisions
relating to an amortization period was not in fact read
at the second reading and final passage of Ordinance No.
4328.
II. Analysis
Only assignments of error 1 and 3 are now before the
Court for resolution on appeal. Assignment of error 2 is
procedurally barred because it was not included in Ace's
petition for appeal. Rule 5:17(c) ("Only errors assigned in
the petition for appeal will be noticed by this Court.").
Additionally, at oral argument, Ace withdrew assignment of
error 4.
Interpretation of a statute is a pure question of law
subject to de novo review by this Court. Renkey v. County
Bd., 272 Va. 369, 373, 634 S.E.2d 352, 355 (2006).
With regard to assignment of error 1, Code § 15.2-
2286(A)(7) states in relevant part:
Whenever the public necessity, convenience,
general welfare, or good zoning practice
requires, the governing body may by ordinance
amend, supplement, or change the regulations,
district boundaries, or classifications of
property. Any such amendment may be initiated
(i) by resolution of the governing body; (ii)
by motion of the local planning commission; or
(iii) by petition of the owner, contract
purchaser with the owner's written consent, or
the owner's agent therefor, . . . . Any such
resolution or motion by such governing body or
5
commission proposing the rezoning shall state
the above public purposes therefor.
Upon consideration of Ace's challenge, the trial court held
that:
Regarding the failure to present the
actual text of the amendment at the time of the
Planning Commission's adoption of the motion to
initiate a text amendment on October 7, 2003, I
find that there is no such requirement in the
statute and that the statute only requires that
an amendment be initiated by motion or
resolution.
The General Assembly did not include a requirement in
Code § 15.2-2286(A)(7) that the text of an amendment be in
written format at the time of initiation. "Courts cannot add
language to the statute the General Assembly has not seen fit
to include." Janvier v. Arminio, 272 Va. 353, 366, 634 S.E.2d
754, 761 (2006). Therefore, the trial court did not err in
holding that the October 7, 2003 adoption of the motion to
initiate the Text Amendment was valid.
With regard to assignment of error 3, Ace argues that the
City failed to initiate Ordinance No. 4337, to shorten the
abatement period to twelve months, "in accordance with any
statutory requirements." Code § 15.2-2286(A)(7) states that
the governing body may by ordinance amend the regulations,
district boundaries, or classifications of property
"[w]henever the public necessity, convenience, general
welfare, or good zoning practice requires." The Code permits
6
any such amendment to be initiated "by resolution of the
governing body" or "by motion of the local planning
commission." Pursuant to Code § 15.2-2286(A)(7), "[a]ny such
resolution or motion by such governing body or commission
proposing the rezoning shall state the above public purposes
therefor."
In this case, without an initiating motion or resolution
and without a stated public policy reason, on February 10,
2004, the City Council introduced and had a first reading of
an ordinance to reduce the abatement period of non-conforming
day labor agencies from eighteen to twelve months. The City
argues that the Text Amendment which had been properly
initiated pursuant to Code § 15.2-2286(A)(7) and was approved
by City Council on November 15, 2003, was also the "text
amendment supporting the enactment of Ordinance 4337." Also,
the City argues that: "Because Text Amendment 2003-0006,
containing the 12-month amortization period approved by [the
City] Council, already existed, there was no legal requirement
under Virginia Code Section 15.2-2286(A)(7) to initiate a new
text amendment before enacting Ordinance 4337."
Adopting the rationale of the City, the trial court
concluded that the "City satisfied the procedural requirements
under . . . Code § 15.2-2286(A)(7) for the proper enactment of
Ordinance No. 4337 in that initiation of Text Amendment
7
# 2003-0006 on October 7, 2003 related to both Ordinance No.
4328 and Ordinance 4337 because each of these ordinances were
enacted to adopt that single text amendment." In its holding,
the trial court erroneously dispensed with the requirements
specifically mandated by Code § 15.2-2286(A)(7). Code § 15.2-
2286(A)(7) requires that each time an amendment to the Zoning
Ordinance is made, the amendment must be properly initiated.
Additionally, Code § 15.2-2285(C) states that "[z]oning
ordinances shall be enacted in the same manner as all other
ordinances." "An ordinance may be amended or repealed in the
same manner, or by the same procedure, in which, or by which,
ordinances are adopted." Code § 15.2-1427(D). The City
failed to initiate Ordinance No. 4337 pursuant to the
requirements specified in Code § 15.2-2286(A)(7). As such,
the trial court erred in finding that the City satisfied the
procedural requirements necessary to enact Ordinance No. 4337.
III. Conclusion
For the reasons stated, that portion of the judgment of
the trial court holding that the text of the amendment did not
have to be in written format at the time of its initiation
will be affirmed. The judgment of the trial court holding
that the procedural requirements of Code § 15.2-2286(A)(7)
were met when enacting Ordinance No. 4337 will be reversed.
8
The case will be remanded for entry of an order consistent
with this opinion.
Affirmed in part,
reversed in part,
and remanded.
9