PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Stephenson, S.J.
GAS MART CORPORATION, ET AL.
OPINION BY
v. Record No. 041455 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
March 3, 2005
BOARD OF SUPERVISORS OF
LOUDOUN COUNTY, ET AL.
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
In this interlocutory appeal, numerous complainants
challenge the validity of revisions to a county's zoning
ordinance.
I
On January 6, 2003, the Board of Supervisors of Loudoun
County (the Board) enacted comprehensive amendments to the
Loudoun County Zoning Ordinance and Zoning Map (the ZOAs).
Within thirty days thereafter, more than 200 suits in equity
were filed against the Board and the County of Loudoun
(collectively, the County), challenging the validity of the ZOAs
on various grounds. By a decree, the trial court consolidated
all of the suits pursuant to the Multiple Claimant Litigation
Act, Code §§ 8.01-267.1 through –267.9, and directed the
formation of a Litigation Steering Committee (the LSC) to
represent all complainants in the consolidated cases with
respect to common issues of law and fact.
With leave of court, the LSC filed on behalf of all
complainants an amended supplemental bill of complaint for
declaratory judgment and other relief with respect to the common
issues. Two counts of that bill of complaint, Counts IV and IX,
are at issue in this appeal.
In Count IV, the complainants alleged that the ZOAs were
void ab initio because the Board had failed to comply with the
public notice requirements of Code § 15.2-1427(F). In
sustaining the County's demurrer to Count IV, the trial court
concluded that Code § 15.2-1427(F) is inapplicable to the
enactment or amendment of zoning ordinances.
In Count IX, the complainants asserted that the Board had
failed in a number of ways to satisfy the public hearing notice
requirement of Code § 15.2-2204(A). With one exception, the
trial court rejected the complainants' assertion, holding that
the notice satisfied the requirements of Code § 15.2-2204(A).
After the trial court issued its letter opinion, the
complainants requested the court to certify two "controlling
questions of law" as appropriate for an interlocutory appeal,
pursuant to the provisions of Code § 8.01-267.8(B). By decree
entered June 14, 2004, the trial court certified the two
questions presented in this appeal, stating that there are
"controlling questions of law as to which there is substantial
ground for difference of opinion, and . . . an immediate appeal
2
. . . may materially advance the ultimate termination of this
litigation." We awarded the complainants an interlocutory
appeal on the two questions of law certified by the trial court,
concluding that they were appropriate for an interlocutory
appeal pursuant to the Multiple Claimant Litigation Act.
These are the two questions presented in this appeal:
1. Whether the trial court erred in holding that the Board
was not required to comply with the procedures set forth in Code
§ 15.2-1427(F), as a condition precedent to the valid enactment
or amendment of a zoning ordinance under Code § 15.2-2285(C);
and
2. Whether the trial court erred in holding that, with the
lone exception noted above, the notices published by the Board
satisfied the requirements of Code § 15.2-2204(A).
II
On January 6, 2003, the Board adopted the ZOAs. The
process began on January 5, 2000, when the Board passed a
resolution directing the County Planning Commission to initiate
a review and revision of the County's comprehensive land use
plan.
On July 23, 2001, the Board adopted extensive modifications
of the County comprehensive land use plan, which became known as
"the Revised General Plan." Thereafter, the Board, the Planning
Commission, the County staff, and outside experts prepared
3
revisions to the Zoning Ordinance to implement the policies of
the Revised General Plan.
On July 15, 2002, the Board passed another resolution
stating that it had "placed as its highest priority, in
implementing the Revised General Plan, the comprehensive
remapping and necessary amendments to the Zoning Ordinance."
This resolution directed the Planning Commission "to conduct a
review of the proposed remapping and the amended Zoning
Ordinance text language" and present its findings and
recommendations to the Board by October 15, 2002.
The Planning Commission held public hearings on the
proposed amendments on August 14 and 17, 2002, after publishing
the required legal advertisement and mailing a notice letter to
each of approximately 64,000 County landowners regarding the
hearings. A revised draft of the proposed amendments, together
with the Planning Commission's recommendations, was forwarded to
the Board on October 16, 2002.
After receiving the Planning Commission's recommendations,
the Board published an advertisement in the Loudoun Times-Mirror
on October 16 and 23, 2002, announcing that it would conduct
public hearings on November 2 and 6, 2002, to consider the
proposed amendments. The advertisement read as follows:
PUBLIC HEARING
4
The LOUDOUN COUNTY BOARD OF SUPERVISORS will hold a
public hearing in the Board of Supervisors' Meeting
Room, County Government Ctr., 1 Harrison Street, S.E.,
Leesburg, Virginia on Saturday, November 2, 2002, at
9:00 a.m. and Wednesday, November 6, 2002, at 3:00
p.m. and 6:00 p.m. to consider the following:
ZOAM 2002-0003
PROPOSED AMENDMENTS TO ALL ARTICLES OF THE 1993
ZONING ORDINANCE FOR THE PURPOSE OF IMPLEMENTING
THE POLICIES OF THE REVISED GENERAL PLAN
Pursuant to Sections 15.2-2204 and 15.2-2285 of the
Code of Virginia and a Resolution regarding Review of
the Comprehensive Plan and Zoning Ordinance adopted by
the Board of Supervisors on January 5, 2000, the
Loudoun County Board of Supervisors hereby gives
notice that it will consider comprehensive amendments
to the 1993 Loudoun County Zoning Ordinance (the
"Ordinance"). Such amendments would revise the entire
Ordinance in conjunction with a comprehensive
amendment to the Zoning Map. Such amendments would
add, replace, modify, delete and add to various
Articles and Sections of the Ordinance as necessary to
implement policies of the Revised General Plan adopted
by the Board of Supervisors on July 23, 2001.
Provisions that are proposed to be added or amended
include, without limitation, the following:
• New and revised requirements for the proposed new
AR-1 and AR-2 Agricultural Rural zoning
districts; the proposed new TR-1 (including sub-
districts TR1UBF, TR1LF), TR-2, TR-3 (including
sub-districts TR3UBF, TR3LBR, TR3LF) and TR-10
Transitional Residential zoning districts; the
proposed new JLMA-1, JLMA-2, JLMA-3 and JLMA-20
Joint Land Management Area zoning districts; the
proposed new TREC Transit Related Employment
Center zoning district; the proposed new Village
Overlay District; the CLI Commercial Light
Industry zoning district and the RC Rural
Commercial zoning district;
• Provisions to implement the Conservation Design
policies in the Revised General Plan;
5
• Provisions to implement the Green Infrastructure
policies in the Revised General Plan by various
means including, without limitation, imposition
of environmental overlay districts such as a
River and Stream Corridor Overlay District and a
Limestone Overlay District and amending the
Mountainside Development Overlay District; and
• Provisions to encourage and support rural
economic development.
The public purposes for these amendments include
those purposes of zoning set forth in Section
15.2[-]2200 and 15.2[-]2283 of the Code of
Virginia.
ZMAP 2002-0014
PROPOSED AMENDMENTS TO THE COUNTYWIDE
ZONING MAP FOR THE PURPOSE OF
IMPLEMENTING THE POLICIES OF
THE REVISED GENERAL PLAN
Pursuant to Sections 15.2-2204 and 15.2-2285 of the
Code of Virginia and a Resolution regarding Review of
the Comprehensive Plan and Zoning Ordinance adopted by
the Board of Supervisors on January 5, 2000, the
Loudoun County Board of Supervisors hereby gives
notice that it will consider comprehensive amendments
to the Countywide Zoning Map. Such amendments would
change the zoning district designations, including
zoning overlay districts, on the County Zoning Map for
the purpose of implementing the Revised General Plan
(the "Plan") adopted by the Board of Supervisors on
July 23, 2001. Major revisions would include, without
limitation, the following revisions to conform to
recommended densities and policies of the Plan:
• Remapping most of the existing Agricultural
Residential (A-3), Agriculture (A-10) and
Countryside Residential (CR-1 through CR-4)
properties in the western portion of the County
to Agricultural Rural AR-1, at a density of 1
dwelling unit ("d.u.") per 20 acres (or, if
clustered, 1 d.u. per 10 acres), and AR-2 at a
density of 1 d.u. per 50 acres (or, if clustered,
1 d.u. per 20 acres);
6
• Remapping the A-3, CR-1 and CR-2 districts within
the Joint Land Management Areas (JLMA) to new
JLMA districts with densities generally unchanged
except for proposed reduction in density to 1
d.u. per 20 acres for properties lying generally
in the vicinity of the Leesburg Airport;
• Remapping the residential CR areas in the
vicinity of Arcola to PD-GI General Industrial
with Floor Area Ratio ("FAR") up to a maximum of
0.4;
• Remapping the Planned Development-Industrial Park
(PD-IP), A-3 and CR areas west of Dulles Airport
to PD-GI General Industrial with FAR up to a
maximum of 0.4;
• Remapping the Broad Run Farms area and
substantial areas lying generally south of the
Dulles Greenway and east of Goose Creek where
recommended by the Plan for residential use from
A-3 and CR to R-1 at a density of 1 d.u. per
acre;
• Expansion of the existing Commercial Light
Industry CLI district and remapping of certain CR
property to CLI for properties lying generally on
the south side of Route 50 east of Lenah Run at
densities generally up to 0.35 FAR;
• Remapping much of the A-3 property lying
generally south of Sycolin Creek and west of
Goose Creek and east of Evergreen Mills Road
(Route 621) to Transitional Residential TR-10 at
a density of 1 d.u. per 10 acres with required
clustering;
• Remapping much of the A-3 property lying
generally east of Route 15 and south of Braddock
Road (Route 705) to Transitional Residential TR-3
(sub-district TR3UBF) at a density of 1 d.u. per
3 acres with required clustering;
• Remapping much of the A-3 property lying
generally north of Route 50 and east of Watson
Road (Route 860) and south of Evergreen Mills
Road (Route 621) to Transitional Residential TR-3
7
(sub-district TR3UBF) at a density of 1 d.u. per
3 acres with required clustering;
• Remapping much of the A-3 property lying
generally south of Braddock Road (Route 620) and
west of Fairfax County to Transitional
Residential TR-3 (sub-district TR3LF) at a
density of 1 d.u. per 3 acres with required
clustering;
• Remapping much of the A-3 property lying
generally south of Braddock Road (Route 620) to
the east of Prince William County and west of
Fairfax County to Transitional Residential TR-3
(sub-district TR3LBR) at a density of 1 d.u. per
3 acres with required clustering;
• Remapping CR properties in the vicinity of Lenah
lying generally on the north and south sides of
Route 50 and north and south of Braddock Road
(Route 705 & Route 620) and east of Route 15 to
Transitional Residential TR-1 (sub-district
TR1UBF) at a density of 1 d.u. per acre with
required clustering;
• Remapping the strip of CR properties generally on
the south sides of Braddock Road (Route 620) and
west of Fairfax County to Transitional
Residential TR-1 (sub-district TR1LF) at a
density of 1 d.u. per acre with required
clustering;
• Imposing a new Village Overlay district upon the
existing villages in the rural areas and upon the
village of Ashburn to achieve continuity and
consistency of future development in the villages
with existing development.
The public purposes for these amendments include those
purposes of zoning set forth in Section 15.2[-]2200
and 15.2-2283 of the Code of Virginia
Unless otherwise noted in the above notices, full and
complete copies of the above-referenced applications
and related documents may be examined in the Loudoun
County Building and Development Department, 1 Harrison
Street, S.E., 2nd Floor, Leesburg, Virginia, from 9:00
8
a.m. to 4:30 p.m., Monday through Friday or call (703)
777-0397.
All members of the public will be heard as to their
views pertinent to these matters. Citizens are urged
to call to sign up to make a presentation at the
public hearing. Individual citizen comments and
organizations will be limited to three minutes so that
all in attendance may have the opportunity to speak.
Written comments are encouraged and may be submitted
to the Deputy Clerk to the Board of Supervisors.
Please call the Board of Supervisors' Office at (703)
777-0204 to register to speak. Registrations will
begin Tuesday, October 22, 2002. Speakers who
anticipate providing a written copy of their comments
are kindly requested to provide 15 copies to the
Deputy Clerk.
Hearing assistance is available for meetings in the
Board Room. If you require any type of reasonable
accommodation as a result of a physical, sensory or
mental disability to participate in this meeting,
please contact County Administration at (703) 777-
0200. Three days notice is requested. FM Assistive
Listening System is available at the meetings.
BY ORDER OF: SCOTT K. YORK, CHAIRMAN
LOUDOUN COUNTY BOARD OF SUPERVISORS
In addition to the newspaper advertisement, the Board
mailed a notice letter to each of approximately 64,000 County
landowners before the public hearings. The letters informed the
landowners of the dates and times of the Board's public
hearings. The letters also informed each landowner of the
specific district proposed for that landowner's property and
explained that the district included regulations governing the
use and development of the property. In addition, the letters
advised the location where copies of the proposed amendments
were available for review.
9
Thereafter, the Board held public hearings on November 2
and 6, 2002, at which the Board received numerous comments from
the public. Following the public hearings, the Board continued
to refine the amendments before their adoption on January 6,
2003.
III
The complainants contend that the public hearing notices
did not satisfy the requirements of Code § 15.2-2204(A), which,
in pertinent part, provides the following:
Plans or ordinances, or amendments thereof,
recommended or adopted under the powers conferred by
this chapter need not be advertised in full, but may
be advertised by reference. Every such advertisement
shall contain a descriptive summary of the proposed
action and a reference to the place or places within
the locality where copies of the proposed plans,
ordinances or amendments may be examined.
The local planning commission shall not recommend
nor the governing body adopt any plan, ordinance or
amendment thereof until notice of intention to do so
has been published once a week for two successive
weeks in some newspaper published or having general
circulation in the locality.
(Emphasis added.) In sum, this statute provides that public
hearing notices must contain three specific elements: (1) a
descriptive summary of the proposed amendments; (2) a reference
to the place within the locality where the proposed amendments
may be examined; and (3) notice of the governing body's
intention to adopt the proposed amendments. According to the
10
complainants, the public hearing notices published by the Board
"satisfied none of these three requirements."
A
First, we consider whether the public hearing notices
provided a legally adequate "descriptive summary" of the Board's
1
proposed zoning action. In the recent case of Glazebrook v.
Board of Supervisors, 266 Va. 550, 554-55, 587 S.E.2d 589, 591-
92 (2003), we stated, in pertinent part, the following:
a "descriptive summary" is a statement that covers the
main points concisely, but without detailed
explanation, in a manner that serves to describe an
object for the knowledge and understanding of others.
. . . If the notice does not cover the main
points of the proposed amendment and does not
accurately describe the proposed amendment, it does
not satisfy Code § 15.2-2204(A). However, the notice
need not contain the full text of the proposed
amendment, nor explain the proposed amendment in
detail.
. . . [The language of Code § 15.2-2204(A)]
suggests that the intent of the statute is to generate
informed public participation by providing citizens
with information about the content of the proposed
amendments and the forum for debate concerning those
amendments. There is no indication that the General
Assembly expected affected citizens to engage in legal
research in order to decide whether to participate in
the hearing or to decide what their interests may be
in a proposed amendment.
1
The trial court held that the Board had failed to provide
any "descriptive summary" of the environmental overlay district
amendments. Therefore, the trial court declared the ZOAs
relating to those districts void ab initio. The court severed
those amendments from the remainder of the ZOAs, and they are
not part of this appeal.
11
In Glazebrook, the challenged public hearing notices stated
only that the "development standards" for certain specified
zoning districts in a county would be amended. 266 Va. at 556,
587 S.E.2d at 592. We explained that the term "development
standards," as used in the county's ordinance, was "a heading
within which are a number of subheadings describing specific
regulations." Id.
We held, in Glazebrook, that
the notice published by the Board did not contain a
sufficiently descriptive summary of the proposed
amendments to the . . . County zoning ordinances. No
citizen could reasonably determine, from the notice,
whether he or she was affected by the proposed
amendments except in the most general sense of being
located in a particular type of zoning district. Nor
could a citizen determine whether the proposed
amendments affected zoning issues that were of
interest or concern to the citizen. Given the number
of issues subsumed under the heading "development
standards," using that heading as a descriptive
summary fails to inform citizens of the universe of
possible zoning ordinance amendments in any meaningful
way.
Id., 587 S.E.2d at 592-93.
(1)
In the present case, the public hearing notices listed a
number of "[p]rovisions that [were] proposed to be added or
amended." One of the proposals was titled "Provisions to
implement the Conservation Design policies in the Revised
General Plan." This is the only reference to "Conservation
Design policies" stated in the notices. The complainants
12
contend that this statement, standing alone, does not constitute
a "descriptive summary" as required by Code § 15.2-2204(A), and
we agree.
The name of the policies (i.e., "Conservation Design")
provides the only clue regarding the Board's proposed action.
There is no description or summary of the content of those
policies, and the notices do not indicate the particular areas
of the County that would be affected by the proposed policies. 2
Clearly, the lone statement fails to cover the main points in a
manner that informs the public regarding the content of the
policies and the affected areas of the County. We hold,
therefore, that the statement in the notices fails to satisfy
the "descriptive summary" requirement of Code § 15.2-2204(A), as
defined and explicated in Glazebrook, and that the trial court
erred in holding that the notices were satisfactory in this
regard.
(2)
The complainants also contend that the public hearing
notices contained an inadequate description of the areas of the
County proposed to be rezoned to the AR-1 and AR-2 districts.
2
According to complainants, the Conservation Design
regulations impose significant restrictions on landowners'
ability to develop their properties in the following districts:
AR-1, AR-2, JLMA, and Transitional Residential. These districts
encompass approximately two-thirds of the area of the County.
13
The notices state that "most of" the existing A-3, A-10, and CR
properties "in the western portion of the County" would be
redesignated to either AR-1 or AR-2 zoning districts.
In setting forth a description of the areas proposed to be
rezoned, the Board failed to state any specific geographic
boundaries or landmarks that would have allowed the public to
ascertain the areas that would be affected by these amendments.
Thus, landowners were compelled to try to determine what the
Board meant by "most of . . . the western portion of the
County." In addition, the description also proved to be
inaccurate and misleading, as shown by the new zoning map that
became effective when the Board adopted the ZOAs. The new
zoning map shows that the areas now zoned AR-1 and AR-2,
described as located in the western portion of the County,
actually extended as far east as the northeastern border of the
County along the Potomac River.
We said, in Glazebrook, that a citizen must be able
"reasonably [to] determine, from the notice, whether he or she
was affected by the proposed amendments." 266 Va. at 556, 587
S.E.2d at 592. A citizen could not reasonably make that
determination from the description at issue in the present case.
We hold, therefore, that, for this reason, the public hearing
The County contends that the regulations "do not in themselves
impose any zoning restrictions affecting the use of the land."
14
notices, as to the areas of the County affected by the rezoning
to the AR-1 and AR-2 districts, failed to satisfy the
requirements of Code § 15.2-2204(A). Thus, the trial court
erred in holding that the notices were satisfactory in this
regard.
B
(1)
We next consider the complainants' contention that the
public hearing notices were defective because the notices stated
that the Board would hold public hearings to "consider" the
proposed zoning amendments. The complainants assert that Code
§ 15.2-2204(A) required the Board to publish notice of its
intention to "adopt," not merely to "consider," the proposed
amendments.
In rejecting this contention, the trial court concluded
that
the use of the word "consider", when read with the
remaining provisions of the publication, denotes the
same deliberative process as acting upon the proposed
amendments. No particular words are required to
satisfy the statute. It may be reasonably inferred
that the Board intended to take some action as to the
proposed amendments and that action would be favorable
to the adoption of the amendments.
We agree with the trial court and reject the complainants'
contention.
(2)
15
We now consider the complainants' contention regarding
notice of the availability for review of the proposed zoning
amendments. Code § 15.2-2204(A) provides, inter alia, that the
advertisement "shall contain . . . a reference to the place or
places within the locality where copies of the proposed plans,
ordinances or amendments may be examined." (Emphasis added.)
The advertisement in the present case stated that "full and
complete copies of the . . . applications and related documents
may be examined in the Loudoun County Building and Development
Department, 1 Harrison Street, S.E., 2nd Floor, Leesburg,
Virginia." (Emphasis added.) The complainants contend that,
because the Board failed to use the statutory language and used
the term "applications and related documents," the advertisement
failed to satisfy the requirements of Code § 15.2-2204(A). We
do not agree. Again, we agree with the trial court's
conclusion:
While the notice should have referenced the
". . . place or places within the locality where
copies of the proposed plans, ordinances or amendments
may be examined", the failure to so state is not fatal
to the amendments. A fair reading of the notice would
indicate that the full text of the amendments and map
was available at the Building and Development Office.
IV
Finally, we consider whether the Board was required to
publish, in addition to the notice prescribed by Code §§ 15.2-
2204(A) and –2285(C), the notice mandated by Code § 15.2-
16
1427(F). The complainants contend that the Board was required
to publish such notice. The County, on the other hand, contends
that zoning ordinances are governed solely by Code §§ 15.2-
2204(A) and –2285(C), which apply specifically to zoning.
Code § 15.2-2285 is the enabling statute for zoning
ordinances. Subsection C thereof reads, in pertinent part, as
follows:
Before approving and adopting any zoning
ordinance or amendment thereof, the governing body
shall hold at least one public hearing thereon,
pursuant to public notice as required by § 15.2-2204,
after which the governing body may make appropriate
changes or corrections in the ordinance or proposed
amendment. . . . However, no land may be zoned to a
more intensive use classification than was contained
in the public notice without an additional public
hearing after notice required by § 15.2-2204. Zoning
ordinances shall be enacted in the same manner as all
other ordinances.
(Emphasis added.)
Code § 15.2-1427(F) prescribes the general procedures for
advertising the proposed adoption, amendment, or repeal of an
ordinance. It reads, in pertinent part, as follows:
In counties, except as otherwise authorized by
law, no ordinance shall be passed until after
descriptive notice of an intention to propose the
ordinance for passage has been published once a week
for two successive weeks prior to its passage in a
newspaper having a general circulation in the
county. . . . The publication shall include a
statement either that the publication contains the
full text of the ordinance or that a copy of the full
text of the ordinance is on file in the clerk's office
of the circuit court of the county or in the office of
the county administrator.
17
(Emphasis added.)
The complainants rely on the statement in Code § 15.2-2285
mandating that "[z]oning ordinances shall be enacted in the same
manner as all other ordinances." They claim that the adoption
of a zoning ordinance requires a two-step notice procedure;
i.e., notice of public hearings under Code §§ 15.2-2204 and -
2285 and notice of adoption under Code § 15.2-1427(F).
The County relies upon the language in Code § 15.2-1427(F)
which states that it shall apply "except as otherwise authorized
by law." Zoning matters, the County asserts, are otherwise
authorized by Code §§ 15.2-2204 and –2285.
It is firmly established that, "when one statute speaks to
a subject generally and another deals with an element of that
subject specifically, the statutes will be harmonized, if
possible, and if they conflict, the more specific statute
prevails." Commonwealth v. Brown, 259 Va. 697, 706, 529 S.E.2d
96, 101 (2000). This is so because "a specific statute cannot
be controlled or nullified by a statute of general application
unless the legislature clearly intended such a result." Id.
Code §§ 15.2-2204 and –2285 address the notice and hearing
requirements as they relate specifically and in detail to zoning
ordinances. Code § 15.2-1427(F), on the other hand, applies
generally to county ordinances "except as otherwise authorized
by law." We conclude, therefore, that Code § 15.2-1427(F), a
18
statute of general application, does not apply to the adoption
of zoning ordinances. Accordingly, in the present case, we hold
that the Board was not required to comply with Code § 15.2-
1427(F) and that the trial court was correct in so ruling.
V
In sum, we will reverse the trial court's rulings with
respect to the sufficiency of the descriptive summaries in the
public hearing notices as they related to the "Conservation
Design policies" and to the areas of the County affected by the
rezoning to AR-1 and AR-2 districts. In all other respects, we
will affirm the trial court. We will remand for further
proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
19