Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.
ALEXANDRIA CITY COUNCIL, ET AL.
v. Record No. 061028 OPINION BY JUSTICE ELIZABETH B. LACY
April 20, 2007
MIRANT POTOMAC RIVER, LLC, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Frank J. Hoss, Jr., Judge Designate
In this appeal, the City of Alexandria asks us to reverse
the circuit court's judgment declaring the 2004 Text Amendment
to the City's zoning ordinance invalid and reinstating two
auxiliary special use permits (SUPs) issued to Mirant Potomac
River, LLC, (Mirant) in conjunction with the operation of an
electricity generating plant (the Plant). As discussed below,
we conclude that the Text Amendment violated Code § 15.2-2307
because it impaired an established vested right to operate the
Plant. We also conclude that the circuit court did not err in
holding that the revocation of the two auxiliary SUPs was
unlawful. For these reasons, we will affirm the judgment of
the circuit court.
Facts and Proceedings
Mirant is the owner and operator of the Plant, a coal-
fueled power plant located in the City of Alexandria. The
Plant began operations in October 1949. The City enacted a
zoning ordinance in 1963 which designated the Plant site as
"Industrial." In 1989, the City granted the Plant's previous
owner, Potomac Electric Power Company, two auxiliary SUPs for
the construction of a building addition to house
administrative offices and for a Transportation Management
Plan. In 1992, the City adopted its current zoning ordinance
and Master Plan. Under this comprehensive plan the Plant site
was designated a Utilities and Transportation (UT) Zone.
Electric plants were permissible uses in the UT Zone, however,
the plants were designated "nonconforming uses" and were
required to obtain comprehensive SUPs to operate. The Plant
was exempt from the comprehensive SUP requirement because the
ordinance designated the Plant as a "noncomplying" use.
Zoning Ordinance § 12-301 (June 24, 1992).
Throughout the next decade, the City approved the
construction of additional residential units in the vicinity
of the Plant. As a result, the Plant is currently bounded on
the East by the Potomac River, on the West by an electric
transmission facility, and is otherwise surrounded by
residential and commercial uses.
In August 2003, two private individuals living near the
Plant prepared and submitted a report to the City outlining
their concerns about possible adverse health effects
associated with Plant emissions. The report was based on a
modeling study of Plant emissions conducted by an
environmental consulting firm hired by the private citizens.
2
The study concluded that there was a high probability of
adverse effects from the Plant's operations and that Plant
emissions likely exceeded National Ambient Air Quality
Standards.
After receipt of this report, the City retained experts
to conduct additional studies of the impact of Plant-related
emissions. Dr. Jonathan Levy of the Harvard School of Public
Health concluded that the Plant was the single largest
contributor of PM2.5, a specific type of fine particulate
matter emissions, in the City. Maureen Barrett, an
environmental engineer, conducted an air quality analysis and
qualitatively concluded the Plant had an adverse effect on the
health of the surrounding communities. Barrett also provided
the City with an overview of other scientific studies
conducted since 1992 that documented the negative health
effects of power plant emissions.
In May 2004, after concluding the Plant's operations were
not compatible with the City Council's long-term plan for
Alexandria, the City Manager and his staff prepared a series
of proposed policies and goals regarding the Plant, including
cessation of all Plant operations and removal of Plant
facilities from the City. At the City's request, outside
counsel provided the City with a memorandum identifying
several potential actions the City could undertake to achieve
3
these goals. These actions included revoking Mirant's
existing auxiliary SUPs and amending the City's zoning
ordinance to change the status of the Plant from
"noncomplying" to "nonconforming." Specifically, counsel
suggested in the memorandum that the auxiliary SUPs could be
revoked on the basis of Mirant's purported violations of
certain emission control limits in its state-issued Stationary
Source Permit to Operate, which would constitute a violation
of the Clean Air Act, 42 U.S.C. §§ 7401 et seq. In the
memorandum, counsel also suggested a text amendment to the
City's zoning ordinance that would change the Plant's
designation to "nonconforming" and require Mirant to obtain a
comprehensive SUP to continue operating the Plant.
The City Council then adopted Resolution No. 2111, which
stated "public necessity, convenience, general welfare or good
zoning practice requires consideration of a Text Amendment to
revoke the noncomplying use status of certain heavy industrial
uses which have not obtained a special use permit as required
by current law, and categorize such uses as nonconforming
uses." The Resolution referred the Text Amendment to the City
Planning Commission for consideration and public hearing. The
Planning Commission also considered the revocation of Mirant's
existing auxiliary SUPs.
4
The City Council and the Planning Commission held several
public hearings on the adoption of the Text Amendment and
revocation of the auxiliary SUPs. Ultimately, the Planning
Commission recommended adoption of the Text Amendment and
revocation of the auxiliary SUPs. On December 18, 2004, the
Mayor and City Council unanimously ratified the
recommendations.
The Text Amendment stated, in relevant part:
Notwithstanding any contrary provision of this
ordinance, any electrical power generating plant in
existence on December 18, 2004, which produces power
through the combustion of coal, and is located in a
zone in which such use is neither a permitted or
special use permit use, or in a zone in which such
use is a special use permit use but for which a
special use permit for the entire use, including
power generation, has not been granted, shall be
deemed a nonconforming use, and shall be subject to
abatement as provided in Section 12-214(A) of this
ordinance.
Zoning Ordinance § 12-216(A).
The abatement provision in § 12-214(A) referenced
in the Text Amendment provides:
Promptly upon becoming aware of the existence of a
nonconforming use, the director shall notify the
property owner and, if different, the property
operator of the nonconforming status of such use.
The nonconforming use shall be discontinued on or
before the expiration of a period of seven years
from the date of such notice, unless, prior to the
expiration of such period, a special use permit
which authorizes the continuation of the
nonconforming use has been approved, or the seven-
year period has been extended by the city council.
5
Mirant1 filed a bill of complaint seeking a declaration
that the Text Amendment was invalid and that the City's
revocation of the two auxiliary SUPs was unlawful and
arbitrary and capricious. Following an ore tenus hearing, the
circuit court concluded that the Text Amendment was invalid
because it violated Dillon's Rule and Code § 10.1-1321.1,
violated Code § 15.2-2307, and was piecemeal downzoning that
was not supported by changed circumstances. The circuit court
also invalidated the City's action revoking the auxiliary
SUPs, holding that revocation of such permits for "violation
of law" required that the City establish a nexus between the
"violation of law" relied upon and the subject matter of the
permits in issue, and that the City failed to sustain its
burden of proof. The City appealed each of these holdings.
DISCUSSION
1. Validity of the Text Amendment
We first address the City's contention that the circuit
court erred in concluding that the Text Amendment violated the
vested rights statute, Code § 15.2-2307. That section states
"[n]othing in this article shall be construed to authorize the
impairment of any vested right." We have applied the
1
The complaint was jointly filed by Mirant Potomac River,
LLC, and Mirant Mid-Atlantic, LLC, (collectively "Mirant").
Mirant Potomac River, LLC, is the owner of the improvements at
6
principle of vested rights on a number of occasions, stating
that a landowner acquires a vested property right to conduct a
nonconforming use on its property if that use was in existence
on the effective date of a zoning ordinance which would make
the use nonconforming. See, e.g., Holland v. Board of
Supervisors, 247 Va. 286, 289 n.*, 441 S.E.2d 20, 22 n.*
(1994) ("A landowner may . . . acquire a vested property right
to conduct a nonconforming use on its property if that use was
in existence on the effective date of the zoning ordinance.").
In this case, the property in issue has been used for the
operation of a power plant since 1949, at which time the City
had no comprehensive zoning. Thus, a vested right to use the
property for operation of a power plant existed at the time of
both the 1963 and 1992 zoning ordinances. Neither of those
ordinances affected the exercise of this right.
Unlike the prior zoning amendments, however, the 2004
Text Amendment did affect Mirant's ability to continue
operating the Plant. The question before us is whether the
conditions imposed by redesignating the use of the property
from noncomplying to nonconforming impaired Mirant's vested
right to use the property for the operation of a power plant
in violation of Code § 15.2-2307.
the Plant and the permittee under the State Operating Permit.
Mirant Mid-Atlantic, LLC is the operator of the Plant.
7
The City argues that requiring Mirant to secure a
comprehensive SUP for continued operation of the Plant beyond
seven years was a legitimate exercise of its zoning authority
and did not violate Code § 15.2-2307. In the posture of this
case, however, we need not decide whether requiring a
comprehensive SUP would impair Mirant's vested right to
operate the Plant on the property. At trial, in response to
the City's argument that Mirant's declaratory judgment action
was not ripe for adjudication because Mirant had neither
applied for nor been denied a comprehensive SUP, the circuit
court held that any attempt by Mirant to acquire an SUP would
have been "futile" and, therefore, Mirant did not have to
pursue such action before seeking the declaratory judgment.2
Consequently, the Text Amendment requires that Mirant cease
operation of the Plant in seven years. Our review is thus
limited to whether this requirement impairs Mirant's vested
right to use the property for the operation of the Plant. The
answer is obvious; termination of the use allowed by virtue of
an established vested right impairs the vested right and
therefore violates Code § 15.2-2307. Accordingly, the circuit
court's conclusion that the Text Amendment violated Code
§ 15.2-2307 was correct.
2
This Court did not grant the City's assignment of error
on this ruling.
8
Nevertheless, the City argues that the circuit court's
conclusion is in error because § 9.09(g) of the City Charter
authorizes the City to terminate nonconforming uses within a
reasonable time and, under Code § 15.2-100, provisions of the
City Charter supersede Code § 15.2-2307. Although the City
asserts that this argument was presented to the circuit court
on three occasions, none of the instances upon which the City
relies apprised the circuit court of the position now advanced
regarding the application of § 9.09 of the City Charter.
At trial, the City's discussion of City Council of
Alexandria v. The Lindsey Trusts, 258 Va. 424, 520 S.E.2d 181
(1999), Code § 15.2-100, and § 9.09(g) of the City Charter was
in the context of the City's closing argument supporting the
reasonableness of its actions in adopting the Text Amendment,
specifically the argument that a seven-year abatement period
was reasonable. The City's objections to the final order, as
relevant here, stated only that the circuit court erroneously
interpreted Code § 15.2-2307. At no time was the circuit
court asked to hold that the provisions of § 9.09 of the City
Charter superseded the requirements of Code § 15.2-2307 and no
argument was directed to the source of authority for the
City's claim. Accordingly, we decline to consider this
argument because the City makes it for the first time on
appeal. Rule 5:25.
9
In light of our holding that the circuit court correctly
held the Text Amendment invalid as a violation of Code § 15.2-
2307, we need not address the alternative grounds cited by the
circuit court as a basis for its holding regarding the Text
Amendment.
2. Revocation of Auxiliary Use Permits
In its second assignment of error the City states that
the circuit court erred in construing § 11-506(A) of the City
Zoning Ordinance to require, as a prerequisite to revocation
of a SUP, a violation of "a law having a nexus to the specific
purpose of a special use permit, rather than to the overall
operations to which the SUP is attached."
Interpretation of a local zoning ordinance, like
interpretation of a statute, is a pure question of law,
subject to de novo review. Renkey v. County Bd., 272 Va. 369,
373, 634 S.E.2d 352, 355 (2006) (quoting Virginia Polytechnic
Inst. v. Interactive Return Serv., 271 Va. 304, 309, 626
S.E.2d 436, 438 (2006)).
Zoning Ordinance § 11-506(A) states:
After notice and a public hearing, the city council
may revoke or suspend any special use permit
approved by it upon proof that the holder of the
permit has failed to comply with any law, including,
without limitation, the conditions subject to which
the special use permit was granted.
10
The City first argues that the phrase "any law" should be
given its plain meaning. Adoption of the plain meaning of
this phrase would allow revocation of an SUP if its holder
violated a local traffic law or federal tax statute. We
decline to adopt an interpretation of this legislative
enactment that would allow such incongruous results.
The City apparently recognized the difficulties of
applying a plain meaning construction to the phrase "any law"
because, as expressed in its assignment of error, the City
does not seek a plain meaning construction but instead asks
that the phrase be construed to mean any law related to the
overall operation to which an SUP is connected. This
construction, however, is not consistent with the legislative
intent of the ordinance.
The ordinance identifies violations of "conditions
subject to which the special use permit was granted" as
grounds for revocation of the SUP. This provision reflects an
intent to base the revocation of the SUP on activities
connected to the SUP. The construction advanced by the City
does not require any such relationship and thus is
inconsistent with the expressed legislative intent. The
construction adopted by the trial court, however, does
maintain the relationship between the SUP and the offending
11
actions because it requires some nexus between the law
violated and the purpose of the SUP.
Nevertheless, the City maintains that its suggested
construction of the ordinance should be given deference under
the principle that a consistent administrative construction of
an ordinance should be given much weight. See, e.g., Trustees
v. Board of Zoning Appeals, 273 Va. 375, 381-82, 641 S.E. 2d
104, 107 (2007); Lamar Co., LLC v. Bd. of Zoning Appeals, 270
Va. 540, 547, 620 S.E.2d 753, 757 (2005). Nothing in this
record, however, establishes that the construction advanced by
the City was a consistent construction of the ordinance or one
that had been applied in the past. The City identified two
instances in which SUPs were revoked for violation of a law,
but both involved violations of the City's zoning law, not a
state or federal law. Additionally, neither of those
instances appeared to address the interpretation advanced by
the City here – that is, a law with a nexus to the overall
operation to which the SUP is attached. Accordingly, we
reject the City's contention that its interpretation of the
zoning ordinance in this case is entitled to deference or
great weight.
We conclude that the circuit court did not err in
construing the phrase "any law" in § 11-506(A) of the zoning
ordinance as any law having a nexus to the purpose of the SUP
12
and, therefore, we will affirm the judgment of the circuit
court reversing the City's revocation of Mirant's two
auxiliary SUPs.3
Affirmed.
3
In its brief the City contends that even if the
construction adopted by the circuit court is correct, the SUPs
should not have been vacated because the violations upon which
the City acted in revoking the permit "did have a nexus to the
purpose of the SUPs." We do not address this argument,
however, because it is not encompassed in the assignment of
error. Rule 5:17(c).
13