Present: All the Justices
MARY RENKEY, ET AL.
v. Record No. 052139 OPINION BY JUSTICE CYNTHIA D. KINSER
September 15, 2006
COUNTY BOARD OF ARLINGTON COUNTY, ET AL.
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N.A. Kendrick, Judge
In this zoning dispute, the dispositive issue is
whether the circuit court erred by deciding that certain
language in the first paragraph of Arlington County Zoning
Ordinance (ACZO) § 27A is a preamble and not an operative
part of the ordinance. We conclude that the language in
question sets out mandatory, eligibility criteria for a
certain zoning classification and is not merely part of a
preamble. Therefore, we will reverse the circuit court’s
judgment.
RELEVANT FACTS AND PROCEEDINGS
The First Baptist Church of Clarendon (FBCC) owns
certain lots located in the Clarendon area of Arlington
County. The property is situated near a metrorail station
and was designated “Semi-Public” in the Arlington County
General Land Use Plan. One portion of the subject property
was zoned to a General Commercial District (designated “C-
3”), while the remaining portion was zoned to a One-Family,
Restricted Two-Family Dwelling District (designated “R-5”).
FBCC and a related entity known as First Baptist
Church of Clarendon Development Corporation (collectively,
the Church), sought to construct on the property a multi-
story building that would include a church sanctuary,
church offices, and 116 residential units, 60 percent of
which would be leased at affordable rental levels based on
the official area family median income. The new structure
would replace the existing church building and sanctuary,
but FBCC’s present educational building would be retained.
The educational building is situated along the side of the
subject property nearest to a residential neighborhood.
In order to proceed with the proposed project, FBCC
applied for an amendment to the General Land Use Plan to
change the subject property’s designation from “Semi-
Public” to “Medium Density Mixed-Use,” a re-zoning of the
“C-3” portion of the property and a part of the “R-5”
portion to a Commercial Redevelopment District (designated
“C-R”), and approval of a special exception site plan for
the residential units. On October 23, 2004, the County
Board of Arlington County (the County) approved FBCC’s
various applications.1
1
The County also approved a conditional loan
commitment up to 4.5 million dollars to the First Baptist
Church of Clarendon Development Corporation as financial
assistance to construct the Views of Clarendon Apartments.
2
Mary Renkey and seven other individuals2 (collectively,
the Residents), who reside in close proximity to the
subject property, challenged the County’s action by filing
a second amended bill of complaint seeking a declaratory
judgment and injunctive relief against the Church and the
County. The Residents’ allegations centered around their
contention that the County had violated the ACZO by
approving the Church’s construction of a building that
exceeded the 55-foot height restriction for by-right
development in the “C-R” zoning district as well as the 3.0
floor area ratio limitation.3 As pertinent to the issue in
this appeal, the Residents alleged that the County violated
ACZO § 27A by re-zoning a portion of the subject property
from “R-5” to “C-R” without that portion first being zoned
“C-3.”
With regard to the re-zoning issue, the Residents
filed a pre-trial motion for summary judgment and asserted
that the County’s re-zoning of the “R-5” portion of FBCC’s
property to “C-R” violated an eligibility requirement set
forth in ACZO § 27A, which states that, in order “to be
eligible” for “C-R” classification, the “site shall be
2
The other individuals are Zuard Renkey, Joan
Rohfling, Pallav Das, Edythe M. Miller, Bruce Ogden,
Benjamin O. Tayloe, Jr., and Laura Tayloe.
3
located within an area . . . zoned ‘C-3.’ ” Thus,
according to the Residents, the County violated its own
zoning ordinance, thereby rendering the re-zoning of FBCC’s
property from “R-5” to “C-R” void ab initio.
In response, the County filed a motion for partial
summary judgment.4 Because the language in question appears
before the regulations set forth in ACZO § 27A, the County
argued that the language, as well as the entire paragraph
in which it appears, is a general statement of intent or a
preamble, and is therefore not a binding part of the
ordinance. Alternatively, the County also asserted that,
even if the language in question is binding, the
eligibility requirement was satisfied because the portion
of FBCC’s property zoned “R-5” was “located within an area”
zoned “C-3.” In other words, the County did not construe
the provisions of ACZO § 27A as permitting only property
already zoned “C-3” to be re-zoned “C-R.”
The circuit court denied the Residents’ motion for
summary judgment and granted the County’s motion. Relying
on the decision in Commonwealth v. Smith, 76 Va. (1 Hans.)
477 (1882), the circuit court reasoned that, since the
3
The Church’s proposed building would have a height of
96.5 feet.
4
The Church filed a pleading opposing the Residents’
motion for summary judgment.
4
first sentence in the introductory paragraph of ACZO § 27A
states the purpose of the “C-R” zoning classification, the
second sentence containing the language at issue “is
clearly a preamble.” The circuit court ruled that the
entire paragraph “functions as a guide to legislative
intent [and] is not an operative part of ACZO § 27A.” The
Residents appeal from the circuit court’s judgment and
assign error, among other things, to the circuit court’s
award of summary judgment to the County on the re-zoning
issue.
ANALYSIS
The dispositive issue is whether certain language in
the first paragraph of ACZO § 27A is part of a preamble or
an operative component of the ordinance. That paragraph,
with the language at issue emphasized, states:
The purpose of the “C-R” classification is
to encourage medium density mixed use
development; to recognize existing commercial
rights; and to provide tapering of heights
between higher density office development and
lower density residential uses. The district is
designed for use in the vicinity of the metrorail
stations and, to be eligible for the
classification, a site shall be located within an
area designated “medium density mixed use” and
zoned “C-3”.
(Emphasis added.) The next paragraph of ACZO § 27A
provides that “[t]he following regulations shall apply
to all ‘C-R’ Districts.” The remainder of ACZO § 27A
5
lists various regulations for a “C-R” district, such
as permitted uses and bulk regulations.
The cross-motions for summary judgment presented the
circuit court with a question of law. “Interpretation of a
statute[, in this case, an ordinance] is a pure question of
law subject to de novo review by this Court.” Virginia
Polytechnic Inst. v. Interactive Return Serv., 271 Va. 304,
309, 626 S.E.2d 436, 438 (2006) (citing Ainslie v. Inman,
265 Va. 347, 352, 577 S.E.2d 246, 248 (2003)). In deciding
the issue before us, we are guided by that standard of
appellate review.
The term “preamble” is defined as “[a]n introductory
statement in a constitution, statute, or other document
explaining the document’s basis and objective.” Black’s
Law Dictionary 1214 (8th ed. 2004). This Court has stated
“[t]he preamble to a statute is no part of it and cannot
enlarge or confer powers or control the words of the act
unless they are doubtful or ambiguous.” Commonwealth v.
Ferries Co., 120 Va. 827, 831, 92 S.E. 804, 805 (1917);
accord Hooe v. Tebbs, 15 Va. (1 Munf.) 501, 510 (1810).
Similarly, a “preamble is not an essential part of the act.
It is often, and now, indeed, generally omitted, and is
without force.” Smith, 76 Va. at 484.
6
In Smith, the case relied on by the circuit court, we
decided the legal effect of certain language in a statute’s
preamble. There, a taxpayer tendered to the treasurer for
the City of Richmond a coupon “cut from a bond of the
Commonwealth of Virginia . . . issued under the act of
assembly, approved March 28, 1879.” Id. at 478. The
treasurer refused to accept the coupon as payment for
taxes. Id. at 479. The question before the Court was
whether that refusal was warranted under the terms of the
act of assembly approved January 14, 1882. The enacting
provisions of that 1882 act dealt only with bonds of the
Commonwealth issued under the act of 1871. Id. at 480.
The taxpayer, however, relied on the preamble of the 1882
act to argue that the legislature intended to include
coupons “detached from bonds issued under the act of 28th
of March, 1879, as well as under the act of 1871.” Id. at
482. The preamble at issue in Smith stated, “by way of
recital (it is not an averment), that bonds purporting to
have been issued by authority of the act of March 30, 1871,
and under act of March 28, 1879, are in existence without
authority of law.” Id. at 483.
The Court reached the following conclusion:
The enacting clauses of the statute making provision
only with regard to coupons detached from bonds of the
Commonwealth, issued under the act of 1871, and making
7
no provision with regard to coupons detached from
bonds issued under the act of 1879, the circumstance
that the latter are mentioned in the preamble, and
though the representation, by way of recital, of a
state of things as inducements to the act which
follows, might be applied to the latter as well as the
former, the latter not being within the enacting
clauses, to bring them within the purview of the act,
would be to go beyond what the legislature did, and to
give to the preamble the province of enlarging and
extending the act of legislation beyond the purview of
the statute, and of conferring powers per se, which is
warranted by no decision that has ever been made, but
is contrary to the settled doctrine on the subject, as
declared in judicial decisions, and maintained by the
most eminent sages of the law in their published
works. It would be to assume legislative power by the
court.
Id. at 486.
The Residents argue that the circuit court’s reliance
on Smith was misplaced because the circuit court ignored
important distinctions between the preamble at issue there
and the language in ACZO § 27A requiring “a site [to] be
located within an area . . . zoned ‘C-3.’ ” The Residents
point out that the preamble in Smith preceded an enacting
clause and did not contain any mandatory language with
regard to the bonds issued by authority of either the 1871
act or the 1879 act; whereas, the paragraph containing the
language at issue in this case does not precede an enacting
clause and does include mandatory language regarding the
“C-R” classification. The County and the Church, however,
stress the fact that the first sentence of ACZO § 27A
8
states the purpose of the “C-R” classification and that the
ordinance’s introductory paragraph is followed by a
paragraph stating, “[t]he following regulations shall apply
to all ‘C-R’ Districts.”
The Residents are correct about the distinctions
between the preamble in Smith and the first paragraph of
ACZO § 27A. Only the initial portion of that paragraph is
akin to a preamble in that it states the purpose of the “C-
R” zoning classification and explains that the
classification “is designed for use in the vicinity of the
metrorail stations.” The analogy, however, stops there.
The remainder of the first paragraph of ACZO § 27A sets out
mandatory, eligibility criteria for the “C-R”
classification: “a site shall be located within an area
designated ‘medium density mixed use’ and zoned ‘C-3.’ ”5
See ACZO § 1(A) (“the word ‘shall’ is mandatory and not
directory”). In clear, unambiguous language, ACZO § 27A
requires that a site first be zoned “C-3” before it can be
re-zoned “C-R,” so it serves a gate-keeping function in the
application of the ordinance.6
5
We also note that, when the County amended and
reenacted ACZO § 27A in 1990, the paragraph containing the
language at issue followed an enacting clause.
6
We find no merit to the County’s alternative argument
that the eligibility requirement for “C-R” classification
9
Thus, we conclude the circuit court erred in deciding
that the entire first paragraph of ACZO § 27A is a
preamble. The final clause of that paragraph is an
operative, essential, and binding part of the ordinance.
In reaching this conclusion, we recognize that the
County’s action re-zoning a portion of FBCC’s property from
“R-5” to “C-R” constituted a legislative act. See Boggs v.
Board of Supervisors, 211 Va. 488, 492, 178 S.E.2d 508, 511
(1971) (“Zoning is properly a legislative function.”);
Blankenship v. City of Richmond, 188 Va. 97, 104, 49 S.E.2d
321, 324 (1948) (“An ordinance that . . . regulates or
restricts conduct with respect to . . . property . . . is
purely legislative.”). Legislative action is presumed to
be reasonable; however, if the presumptive reasonableness
of the action is challenged by probative evidence of
unreasonableness, that challenge must be met by evidence of
reasonableness, and the legislative action will be upheld
if such evidence is sufficient to make the issue fairly
debatable. City Council v. Wendy’s of Western Virginia,
252 Va. 12, 15, 471 S.E.2d 469, 470 (1996); see also Eagle
Harbor, L.L.C. v. Isle of Wight County, 271 Va. 603, 615-
16, 628 S.E.2d 298, 304-05 (2006) (citing and quoting Board
was satisfied because the portion of FBCC’s property zoned
“R-5” was located in an area zoned “C-3.”
10
of Supervisors v. Robertson, 266 Va. 525, 532-33, 587
S.E.2d 570, 575 (2003)).
Here, the County acted in direct violation of
ACZO § 27A. When the County re-zoned a portion of
FBCC’s property from “R-5” to “C-R” without complying
with the eligibility requirement set out in its own
ordinance, its action was arbitrary and capricious,
and not fairly debatable, thereby rendering the re-
zoning void and of no effect. See Board of
Supervisors v. Cities Service Oil Co., 213 Va. 359,
362, 193 S.E.2d 1, 3-4 (1972) (board of supervisors
acted “arbitrarily and capriciously,” rendering its
action “null and void,” when it re-zoned property in
which a company had a vested right for a particular
use); see also Hurt v. Caldwell, 222 Va. 91, 97-98,
279 S.E.2d 138, 142 (1981) (because a county building
official issued a building permit in violation of a
local ordinance, the permit was void and of no
effect).7
7
Although the legislative action in Hurt was carried
out by a county building official, and not the local
governing body itself, this Court stated in a different
case that, “[i]f allowed by statute, local governing bodies
may delegate the exercise of [their] legislative functions
to subordinate . . . officers, or employees, but the
subordinate [officer’s or employee’s] exercise of these
functions continues to be considered a legislative action.”
11
CONCLUSION
For these reasons, we conclude the circuit court erred
in granting the County’s motion for partial summary
judgment and refusing to grant the Residents’ motion for
summary judgment. We will reverse the judgment of the
circuit court, enter judgment here for the Residents on the
re-zoning issue, and remand for further proceedings
consistent with this opinion.8
Reversed and remanded.
Helmick v. Town of Warrenton, 254 Va. 225, 229, 492 S.E.2d
113, 115 (1997).
8
In light of our decision, it is not necessary to
address the Residents’ other assignment of error.
12