Present: All the Justices
WILLIAM H. LUCY, ET AL.
v. Record No. 980770
COUNTY OF ALBEMARLE
OPINION BY
JUSTICE LAWRENCE L. KOONTZ, JR.
June 11, 1999
CITY OF CHARLOTTESVILLE
v. Record No. 980771
COUNTY OF ALBEMARLE
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
John E. Clarkson, Rodham T. Delk, Jr., and Donald A.
McGlothlin, Jr., Judges
In these consolidated appeals, we consider whether a
citizen-initiated petition for reversion of an independent city
to town status under Code § 15.2-4102 (formerly Code § 15.1-
965.10(B)) was properly filed in the circuit court prior to the
notice specified in Code § 15.2-2907(A) (formerly Code § 15.1-
945.7(A)) being given to the Commission on Local Government and
the affected local governments. 1
1
Subsequent to the filing of the petition for reversion at
issue in these appeals, Title 15.1 was superseded by Title 15.2,
with the relevant statutory provisions now appearing in Code
§§ 15.2-2900 et seq. and 15.2-4100 et seq. Because there is no
material change between the former and current versions of the
statutes we address, we will refer herein to the current
statutes.
The parties do not dispute the legislative history of these
and other relevant statutes or the procedural posture of the
cases. However, the specific statutes in question are in
apparent conflict and susceptible to differing constructions.
Thus, the issue framed by these appeals is uniquely one of
necessary judicial construction to reconcile these statutes
consistent with legislative intent. Accordingly, in order to
place the facts and the specific issue of these appeals in
proper focus, we begin our analysis with a review of the
legislative background of the general statutory scheme
concerning changes in the boundaries, structure, and status of
counties, cities, and towns in this Commonwealth.
Although it has been almost three decades since the General
Assembly first passed legislation to address the problems of
relations among local governments within this Commonwealth, the
underlying concerns with respect to this issue remain unchanged.
In County of Rockingham v. City of Harrisonburg, 224 Va. 62, 294
S.E.2d 825 (1982), we said:
Relations among units of local government pose
problems of continuing concern to the General
Assembly. Different people in different communities
have different needs for different reasons.
Government seldom has sufficient resources to provide
all it would like to give its citizens and never all
they would like to receive. Necessarily, needs and
means must be balanced and compromises must be
reached. How well local governments succeed in
promoting the common weal depends in large part upon
2
how they are organized and how they interact with
their neighbors.
Id. at 71, 294 S.E.2d at 828-29.
To address these concerns, in 1971 the General Assembly
authorized a study by the Commission on City-County
Relationships. Acts 1971, c. 234. As a result of that study,
the General Assembly enacted comprehensive legislation in 1979
with the purpose and intent “to create a procedure whereby the
Commonwealth will help ensure that all of its localities are
maintained as viable communities in which their citizens can
live.” Code § 15.2-2900. To carry out this purpose and intent,
the General Assembly established the Commission on Local
Government. Id.
The General Assembly initially mandated and empowered the
Commission on Local Government, inter alia, “[t]o investigate,
analyze, and make findings of fact . . . as to the probable
effect” of any proposed annexation, declaration of immunity from
annexation, establishment of a town or independent city, or
transition from a county to a city. Code § 15.2-2903(4).
Relevant to the present appeals, the General Assembly in 1988
amended the former version of this statute to include as an
additional responsibility of the Commission on Local Government
the administrative review “of any proposed action . . . [t]o
3
make a transition from city status to town status.” Code
§ 15.2-2903(4)(e).
The procedure for invoking an administrative review by the
Commission on Local Government on matters within its purview is
set out in Code § 15.2-2907, one of the two statutes principally
at issue in the present appeals. In pertinent part, that
statute provides:
A. No locality or person shall file any action in
any court in Virginia . . . to make a transition from
city status to town status, without first notifying
the Commission and all local governments located
within or contiguous to, or sharing functions,
revenue, or tax sources with, the locality proposing
such action. Upon receipt of the notice the
Commission shall hold hearings, make investigations,
analyze local needs and make findings of fact and
recommendations . . . No court action may be filed
until the Commission has made its findings of facts.
. . . .
B. The Commission shall report, in writing, its
findings and recommendations to the affected
localities, any other localities likely to be affected
. . . and to any court which may subsequently consider
the action.
. . . .
Before making the report the Commission shall
conduct hearings at which any interested person may
testify. Prior to the hearing, the Commission shall
publish a notice of the hearing once a week for two
successive weeks in a newspaper of general circulation
in the affected counties and cities.
(Emphasis added.)
4
On its face, Code § 15.2-2907 is a clear directive
expressing the intent of the General Assembly that all proposed
actions to make a transition from city status to town status be
subject to an administrative hearing and review by the
Commission on Local Government prior to any court action being
filed. Such hearing and review is initiated by notice to the
Commission on Local Government. The statute mandates that all
affected local governments also be notified of the proposed
action and that the Commission on Local Government publish
notice to the general public prior to its hearing on the matter.
In 1988, in addition to including the responsibility of the
Commission on Local Government to review actions concerning
transition from city status to town status set out in Code
§ 15.2-2907, the General Assembly also enacted the statutory
scheme for instituting such actions. Under that statutory
scheme, now found at Code § 15.2-4100 et seq., there are two
methods by which an action for reversion from city status to
town status may be instituted. Code § 15.2-4101 provides that:
A. Any city in this Commonwealth with a
population at the time of the latest United States
decennial census of less than 50,000 people, after
fulfilling the requirements of Chapter 29 (§ 15.2-2900
et seq.), may by ordinance passed by a recorded
majority vote of all the members thereof, petition the
circuit court for the city, alleging that the city
meets the criteria set out in § 15.2-4106 for an order
granting town status to the city. The circuit court
with which the petition is filed shall notify the
Supreme Court, which shall appoint a special court to
5
hear the case as prescribed by Chapter 30 (§ 15.2-3000
et seq.) of this title.
B. Before instituting a proceeding under this
chapter for a grant of town status, a city shall serve
notice on the county attorney, or if there is none, on
the attorney for the Commonwealth, and on the chairman
of the board of supervisors of the adjoining county
that it will, on a given day, petition the circuit
court for a grant of town status. The notice served
on each official shall include a certified copy of the
ordinance. A copy of the notice and ordinance, or a
descriptive summary of the notice and ordinance and a
reference to the place within the city or adjoining
county where copies of the notice and ordinance may be
examined, shall be published at least once a week for
four successive weeks in some newspaper having general
circulation in the city and adjoining county. The
notice and ordinance shall be returned after service
to the clerk of the circuit court. Certification by
the owner, editor or manager of the newspaper
publishing the notice and ordinance shall be proof of
publication.
(Emphasis added.)
Code § 15.2-4102 provides that:
Voters equal in number to fifteen percent or more
of the registered voters of the city as of January 1
of the year in which the petition is filed may
petition the circuit court for the city, stating that
it is desirable that such city make the transition to
town status. All of the signatures on the petition
shall have been made and filed within a twelve-month
period. A copy of the petition shall be served on the
city attorney and the county attorney, or if there is
none, on the attorney for the Commonwealth for the
county and on the mayor of the city and the chairman
of the board of supervisors of the adjoining counties.
A copy of the petition shall be published at least
once a week for four successive weeks in a newspaper
having general circulation in the city and the
adjoining county. The case shall proceed in all
respects as though instituted in the manner prescribed
in § 15.2-4101, and the court shall forthwith refer
6
the petition to the Commission on Local Government for
review pursuant to Chapter 29 (§ 15.2-2900 et seq.).
(Emphasis added.)
By express language, before a city may file its petition
for reversion to town status in the circuit court, Code § 15.2-
4101 requires the city to comply with the notice provisions of
Code § 15.2-2907(A). This requirement is harmonious with the
prohibition contained in Code § 15.2-2907(A) against the
“locality . . . fil[ing] any action in any court in Virginia
. . . to make a transition from city status to town status,
without first notifying the Commission and all [affected] local
governments.”
The material distinction between the filing of a city-
initiated petition for reversion to town status under Code
§ 15.2-4101 and the filing of a citizen-initiated petition for
such reversion under Code § 15.2-4102 arises in the final
sentence of the latter statute, which provides that “[t]he case
shall proceed in all respects as though instituted in the manner
prescribed in 15.2-4101, and the court shall forthwith refer the
petition to the Commission on Local Government for review
pursuant to Chapter 29 (§ 15.2-2900 et seq.).” (Emphasis
added.) It is this manifest conflict between Code § 15.2-4102,
requiring a citizen-initiated petition for reversion of a city
to town status to be filed first in circuit court followed by a
7
referral by the court to the Commission on Local Government, and
Code § 15.2-2907(A), requiring notice of an intended reversion
of a city to town status and a hearing and review by the
Commission on Local Government prior to the filing of any court
action, that is the focal point of these appeals. Within this
statutory scheme, the following factual and procedural events
occurred.
On November 26, 1996, William H. Lucy and four other
representative petitioners (the petitioners) pursuant to Code
§ 15.2-4102 filed a petition in the Circuit Court of the City of
Charlottesville with signatures purported to represent at least
fifteen percent of the registered voters of the City of
Charlottesville. The petition stated that “for the reasons that
will appear in the evidence which will be offered at subsequent
hearings . . . it is desirable that the City of Charlottesville
make the transition to town status.” Copies of the petition
were served on the city attorney and mayor of the City of
Charlottesville and the county attorney and chairman of the
board of supervisors of Albemarle County, the adjoining county.
The petitioners concede that no written notice of their
intention to seek reversion to town status had been given to the
Commission on Local Government or any affected local government
prior to the filing of the petition in the circuit court.
8
On December 13, 1996, the City of Charlottesville (the
City) filed an answer to the petition. The City requested that
it be made a party to the suit and that “the Special Court,
following its appointment, enter [an order] . . . referring this
proceeding, following the Special Court’s disposition of all
pleas, demurrers, or other preliminary motions as may be filed,
to the Commission on Local Government for review pursuant to
[Code § 15.2-2900 et seq.].” On December 16, 1996, we appointed
a panel of three judges as authorized by Code § 15.2-3000 to
consider the petition as a special court.
On December 18, 1996, Albemarle County (the County) filed
an answer to the petition. The County challenged the adequacy
of the petition asserting doubt whether the petitioners
represented fifteen percent of the registered voters of the
City. Accordingly, the County asserted that “referral to the
Commission on Local Government prior to determining the
jurisdictional status of the petitioners would be inappropriate
because of the costly and time-consuming nature of the
proceedings before the Commission on Local Government.” The
County did not assert in its answer that the petition had been
improperly filed due to lack of prior written notice to the
Commission on Local Government and the affected local
governments. On June 3, 1997, the court entered an order
appointing a special commissioner charged with the
9
responsibility to determine the validity and sufficiency of the
signatures to the petition.
On June 6, 1997, the County filed a motion to dismiss the
petition. It was in this motion that the County first asserted
that the notice provision of Code § 15.2-2907(A) precluded the
petitioners from filing the petition prior to giving notice to
the Commission on Local Government and the affected local
governments described in that statute. The County alleged that
“the notice provisions are jurisdictional and/or mandatory
condition precedent to filing this action.”
Following a hearing on the County’s motion to dismiss, the
court indicated that it would sustain the motion. The
petitioners and the City both filed motions to reconsider. The
motions for reconsideration asserted that the notice requirement
of Code § 15.2-2907(A) was not jurisdictional and was not
implicated until the court referred the matter to the Commission
on Local Government pursuant to Code § 15.2-4102. The
petitioners also sought leave to amend their petition to include
an allegation of actual notice to the Commission on Local
Government and the affected local governments.
In an opinion letter subsequently adopted by reference in
the final order, the court opined that “the specific and
affirmative notice requirements in the comprehensive statute,
[Code § 15.2-2907(A)], which also specifically apply to
10
reversion suits, are not overruled by the silence as to notice
in the limited statute for citizen-initiated reversions, [Code
§ 15.2-4102]. In the present case, prior notice to the
Commission [on Local Government] was required and not given by
the citizen petitioners.”
In a final order dated January 20, 1998, the court
sustained the County’s motion to dismiss and denied the motions
to reconsider. In that order, the court found that Code § 15.2-
2907(A) required the petitioners to give prior notice to the
Commission on Local Government and the affected local
governments; that they had failed to give such notice; and, that
this failure was a jurisdictional defect which required
dismissal of the petition. The court expressly stated that it
had not made any determination of “the eligibility of the City
of Charlottesville for town status” in the future. We awarded
appeals to the petitioners and the City.
Because we find that the dispositive issue of these appeals
is whether Code § 15.2-2907(A) requires the petitioners to give
notice to the Commission on Local Government and the affected
local governments prior to filing their petition under Code
§ 15.2-4102, we will confine our discussion of the respective
positions of the parties to that issue.
The petitioners and the City assert that Code § 15.2-4102
expressly permits a citizen-initiated petition for reversion
11
from city status to town status to be filed in the circuit court
prior to notice being given to the Commission on Local
Government and affected localities. They further assert that
the express distinction between city-initiated petitions and
citizen-initiated petitions overrides the broad general language
of Code § 15.2-2907(A). While recognizing the facial conflict
between these two statutes, they contend that the General
Assembly intended for procedural challenges to the validity of a
citizen-initiated petition to be resolved by a court prior to a
referral to the Commission on Local Government. Thus, they
further contend that this conflict is reconciled by a statutory
construction implicating the notice provisions of Code § 15.2-
2907(A) only when a court refers a valid citizen-initiated
petition to the Commission on Local Government pursuant to Code
§ 15.2-4102.
The County contends that this construction of Code § 15.2-
4102 improperly treats it as “an isolated fragment of a law
setting out a specific procedure applicable only to citizen-
initiated reversions.” Rather, the County contends that Code
§ 15.2-2907(A) is a comprehensive general statute touching upon
the same subject matter as Code § 15.2-4102 and that the two
must be construed in pari materia. When the two code sections
are so construed, the County asserts that, absent specific
language in Code § 15.2-4102 regarding the pre-filing notice
12
requirements of Code § 15.2-2907(A), there is a presumption “the
legislature did not intend to innovate on, unsettle, disregard,
alter or violate a general statute or system of statutory
provisions.” Prillaman v. Commonwealth, 199 Va. 401, 405-06,
100 S.E.2d 4, 7 (1957). While acknowledging that there is an
apparent conflict between the two statutes concerning the time
for filing a citizen-initiated petition in the circuit court,
the County contends that the notice requirements of Code 15.2-
2907(A) are clear and mandatory. Thus, the County concludes
that the requirement of notice under Code § 15.2-2907(A)
prevails and resolves any conflict with Code § 15.2-4102.
We agree with the County that the statutes in question are
to be considered in pari materia. As we said in Prillaman
“[t]he general rule is that statutes may be considered as in
pari materia when they relate to the same person or thing, the
same class of persons or things or to the same subject or to
closely connected subjects or objects. Statutes which have the
same general or common purpose or are parts of the same general
plan are also ordinarily considered as in pari materia.”
Prillaman, 199 Va. at 405, 100 S.E.2d at 7.
However, the mere fact that statutes relate to the same
subject or are part of the same general plan does not mean that
they cannot also be in conflict. Indeed, the reason for
considering statutes in pari materia is that this permits “any
13
apparent inconsistencies [to] be ironed out whenever that is
possible.” Commonwealth v. Sanderson, 170 Va. 33, 38, 195 S.E.
516, 518 (1938). Thus, we have recognized that the requirement
that we consider statutes as in pari materia is only one rule of
statutory construction among many:
In the construction of statutes, the courts have but
one object, to which all rules of construction are
subservient, and that is to ascertain the will of the
legislature, the true intent and meaning of the
statute, which are to be gathered by giving to all the
words used their plain meaning, and construing all
statutes in pari materia in such manner as to
reconcile, if possible, any discordant feature which
may exist, and make the body of the laws harmonious
and just in their operation.
Tyson v. Scott, 116 Va. 243, 253, 81 S.E. 57, 61 (1914); see
also Waller v. Commonwealth, 192 Va. 83, 89, 63 S.E.2d 713, 716
(1951); The Covington Virginian, Inc. v. Woods, 182 Va. 538,
548-49, 29 S.E.2d 406, 411 (1944). Guided by this rule of
statutory construction, we turn now to the specific statutes in
question.
As noted above, Code § 15.2-2900 et seq. clearly give the
Commission on Local Government the authority and responsibility
to review all matters touching upon the status of local
governments to ensure that all localities are maintained as
viable communities in which their citizens can live. It is
equally clear that the purpose of Code § 15.2-2907(A) is to
invoke in a timely manner the Commission on Local Government’s
14
fact-finding process on any of the matters within its purview to
ensure that all affected local governments have notice of and an
opportunity to be heard in that process.
In this manner, the overall procedural scheme embodied in
Code § 15.2-2907 promotes settlement of disputes between
localities without resort to court action by the provision of
subsection A that permits the Commission on Local Government to
“actively seek to negotiate a settlement of the proposed
action,” and with the agreement of the parties to “appoint an
independent mediator” to facilitate such settlement. Thus, it
is manifest that the General Assembly’s primary intent was to
permit, where possible, a settlement of disputes between
localities prior to any mandated resolution by a court. To that
end, Code § 15.2-2907(A) unequivocally prohibits the filing of
any court action until the Commission on Local Government has
been notified and completed its review. 2
2
We note that when the General Assembly in 1988 amended the
former version of Code § 15.2-2907(A) to include “person” within
the statute’s mandate for pre-filing notice to the Commission on
Local Government and affected localities, it created a patent
ambiguity in the statute. Obviously, a “person” cannot be “the
locality proposing such action” contained in the emphasized
phrase of the statute previously noted in this opinion. This
ambiguity, while not controlling in our analysis, further
illustrates the conflict between Code § 15.2-2907(A) and Code
§ 15.2-4102 created in 1988 that necessitates statutory
construction to reconcile these statutes.
15
We think, however, it is significant that there is no
authority anywhere in the pertinent statutory scheme for the
Commission on Local Government to decline to review an action
that may appear to lack merit. Specific to the issue in these
appeals, there is no provision for the Commission on Local
Government to suspend its proceedings in order to permit a court
to consider legal challenges to a citizen-initiated petition
under Code § 15.2-4102, as the County suggests could be done.
Rather, Code § 15.2-2907(A) provides that “[u]pon receipt of the
notice the Commission shall hold hearings, make investigations,
analyze local needs and make findings of facts and
recommendations.”
As the County itself acknowledged in its answer to the
petition in this case, proceedings before the Commission on
Local Government are “costly and time-consuming.” It is
reasonable, therefore, that the General Assembly would not
intend for private citizens to have the unfettered power to
bring frivolous or procedurally deficient matters before the
Commission on Local Government and thereby subject the
Commission on Local Government and affected local governments to
the unnecessary expenditure of taxpayer resources.
In this context, Code § 15.2-4102 may be reasonably
reconciled with Code § 15.2-2907(A) when the former is construed
as a “gatekeeper” statute. Under this construction, the sole
16
purpose for treating citizen-initiated petitions for reversion
of a city to town status differently from such city-initiated
petitions is to permit the city and the county directly involved
to raise procedural challenges to the efficacy of citizen-
initiated petitions in the court where they are filed, thus
avoiding unnecessary involvement of the Commission on Local
Government and other local governments in those cases where the
petitions would fail without regard to their merits. Once those
challenges are resolved, the statute expressly mandates that the
court refer the petition to the Commission on Local Government
without taking further action on the merits of the petition
until the provisions of Code § 15.2-2900 et seq. have been
satisfied.
This construction of Code § 15.2-4102 as a gatekeeper
statute is bolstered by our further conclusion that, contrary to
the concern expressed by the court below, Code § 15.2-4102 does
contain a comprehensive notice scheme. That scheme readily may
be reconciled with the intent of Code § 15.2-2907(A) that
affected local governments have a full and fair opportunity to
participate in the Commission on Local Government’s proceedings
prior to a trial on the merits of a citizen-initiated petition
for reversion to town status. Code § 15.2-4102 mandates that a
copy of the petition be served on the attorney and mayor of the
city and the attorney and chairman of the board of supervisors
17
of its adjoining county or counties. In addition, this statute
mandates publication of a copy of the petition in a newspaper
having general circulation in those localities. Thereafter, the
statute mandates that the court forthwith refer the petition to
the Commission on Local Government which in turn is subject to
the mandate of Code § 15.2-2907(B) to publish a notice of its
hearing in a newspaper of general circulation in the affected
counties and cities. These notice requirements ensure that the
affected governments and other interested parties will have an
adequate opportunity to be heard before the Commission on Local
Government issues its final report and before any hearing on the
merits is conducted by the court. In this context, Code § 15.2-
4102 and Code § 15.2-2907(A) are reconciled to the greatest
extent possible and, moreover, are just in their operation.
For these reasons, we hold that the trial court erred.
Thus, we will reverse the judgment of the court below and remand
the case for further proceedings consistent with the views
expressed in this opinion.
Reversed and remanded.
18