Board of Supervisors v. Windmill Meadows, LLC

Present: Kinser, C.J., Goodwyn, Millette, Mims, McClanahan,
and Powell, JJ., and Koontz, S.J.

BOARD OF SUPERVISORS OF
JAMES CITY COUNTY, ET AL.
OPINION BY
v. Record No. 130210 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
January 10, 2014
WINDMILL MEADOWS, LLC, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND JAMES CITY COUNTY
Robert W. Curran, Judge Designate

In this appeal, we address the construction and

application of a statute by a circuit court in ruling upon

cross-motions for summary judgment in a declaratory judgment

action. In such cases, we review de novo both the

construction of the relevant statute, Newberry Station

Homeowners Ass'n v. Bd. of Supervisors, 285 Va. 604, 611, 740

S.E.2d 548, 552 (2013), and its application to the undisputed

facts stipulated in the record. Elizabeth River Crossings

OPCO, LLC v. Meeks, 286 Va. 286, 301, 749 S.E.2d 176, 183

(2013); Transportation Insurance Co. v. Womack, 284 Va. 563,

567, 733 S.E.2d 656, 658 (2012).

BACKGROUND

Windmill Meadows, LLC, HHHunt Corporation, and GS

Stonehouse Green Land Sub LLC ("the developers") are all

owners of land within James City County on which they are

developing residential communities. At various times prior to
July 1, 2010 the developers sought and obtained rezoning of

their property to allow for their planned developments. As

part of their applications for rezoning, the developers all

made proffers to the County which included per-dwelling unit

cash payments during different stages of development.

Likewise, Williamsburg Landing, Inc., a non-profit

corporation developing a life care community in the County,

agreed to make per-dwelling unit cash payments related to the

rezoning of its property. Though the terms of these proffers

differed, as relevant to this appeal it is not contested that

these cash payments were required to be made prior to the date

of the completion of the final inspection and the issuance of

a certificate of occupancy for each dwelling unit.

In the 2010 legislative session, the General Assembly

enacted Code § 15.2-2303.1:1(A), which in relevant part

provides, "Notwithstanding the provisions of any cash proffer

requested, offered, or accepted . . . for residential

construction on a per-dwelling unit or per-home basis, cash

payment made pursuant to such a cash proffer shall be

collected or accepted by any locality only after completion of

the final inspection and prior to the time of the issuance of

any certificate of occupancy for the subject property." The

statute went into effect on July 1, 2010 and, under a "sunset

2
provision" was to remain in effect until July 1, 2014. 1 See

2010 Acts chs. 549, 613.

On September 13, 2010, in response to an inquiry from a

member of the General Assembly, the Attorney General issued an

opinion addressing whether Code § 15.2-2303.1:1(A) "applies to

proffer agreements that were formed prior to July 1, 2010."

2010 Op. Atty. Gen. 65 at 1. The Attorney General opined that

"to the extent the Act does not impair the contract or vested

rights of the zoning applicant, . . . Code § 15.2-2303.1:1

applies to cash payment proffers formed before July 1, 2010 so

that a locality may not accept or demand payment of any

uncollected cash proffer payments until the completion of a

final inspection and prior to the issuance of a certificate of

occupancy for the subject property." Id. at 4 (emphasis

added).

Although the parties were all aware of the enactment of

Code § 15.2-2303.1:1(A) and the Attorney General's opinion as

to its application, it is not disputed that cash payments for

1
As initially enacted, Code § 15.2-2303.1:1 had two
subsections numbered 1 and 2. Subsequent amendments to Code
§ 15.2-2303.1:1 added two additional subsections and
redesignated them as A, B, C, and D. See 2011 Acts ch. 173;
2012 Acts chs. 508, 798. For clarity, we will refer to the
subsections by their current designations. Among other
changes, the amendments have twice extended the sunset
provision date, which at present is July 1, 2017. Code
§ 15.2-2303.1:1(D).

3
some dwelling units were made by the developers and

Williamsburg Landing and accepted by the County in accord with

the terms of the proffers after June 30, 2010 and prior to the

completion of a final inspection of the dwelling units. This

practice continued until May 18, 2011, when the County

Attorney received a letter from Robert Duckett, Director of

Public Affairs for the Peninsula Housing & Builders

Association, a trade group representing the developers.

Duckett questioned the County's practice of accepting the

proffers in advance of the time specified in the statute,

indicating that the Association believed that the County was

required to "revise its proffer acceptance policy and

practices to bring them in accordance with [Code §]

15.2-2303.1:1."

On June 30, 2011, the County, on behalf of its Board of

Supervisors and the County's acting Zoning Administrator,

filed a complaint for declaratory judgment in the Circuit

Court of the City of Williamsburg and James City County,

naming the developers and Williamsburg Landing as respondents. 2

Within the complaint, the County contended that Code

2
Basic Properties, LLC, another developer of land within
the County, was also named as a respondent, but did not enter
an appearance in the circuit court and is not a party to this
appeal. The Home Builders Association of Virginia
subsequently was permitted to intervene in the action as a
respondent.

4
§ 15.2-2303.1:1(A) had no application to proffers agreed to

prior to its effective date of July 1, 2010. The County asked

the court to determine that the statute "applied prospectively

and has no retroactive effect."

On July 25, 2011, Williamsburg Landing filed an answer to

the County's complaint. Admitting the basic facts as alleged

in the complaint, Williamsburg Landing contested the County's

legal argument and conclusion that Code § 15.2-2303.1:1(A) did

not affect the County's ability to accept cash proffers prior

to the completion of a final inspection. Williamsburg Landing

requested that the circuit court "enter such Orders as may be

proper based on the Court's determination of the matters

raised in the Petition, and that [Williamsburg Landing] be

awarded its attorney[']s fees and costs."

On August 25, 2011, the developers filed a joint answer

to the County's complaint contesting the County's position and

requesting that the circuit court declare that:

Va. Code § 15.2-2303.1:1 is to be applied
retroactively and thus to any and all cash payments
owed pursuant to any and all cash proffers
requested, offered or accepted for residential
construction on a per-dwelling unit or per-home
basis during its period of effectiveness and that
Respondents are to be awarded reasonable
attorney['s] fees, expenses and court costs in
addition to the refund of any and all monies
collected or accepted by Petitioners in violation of
§ 15.2-2303.1:1 of the Code, plus interest, as set
forth in Respondents' Counterclaim filed
contemporaneously with this Answer.

5
As indicated in their answer, the developers also filed a

counterclaim on August 26, 2011 seeking "the refund of any and

all monies accepted or collected by the County in violation of

[Code] § 15.2-2303.1:1" and attorney's fees and costs. The

claim for fees and costs was based upon an amendment to Code

§ 15.2-2303.1:1 effective July 1, 2011 which permits a court

to "award reasonable attorney fees, expenses, and court costs

. . . in an action successfully challenging an ordinance,

administrative or other action as being in conflict with this

section." See 2011 Acts ch. 173 (enacting former subsection

(B) of the statute); see also current Code § 15.2-2303.1:1(C).

On December 1, 2011, the County filed its answer to the

developer's counterclaim requesting that it be denied and that

the court grant the relief sought by the County in its

complaint for declaratory judgment.

The County, Williamsburg Landing, and the developers all

filed cross-motions for summary judgment and supporting

briefs. The arguments raised by the parties therein are

substantially parallel to those made on brief in this appeal.

It will suffice to say that the parties focused their

arguments upon whether the language of Code § 15.2-2303.1:1(A)

evinced a legislative intent that the statute would be

"applied retroactively" to limit the acceptance or demand for

6
payment of cash proffers agreed to and adopted prior to the

effective date of the statute.

Following consideration of the briefs and arguments of

the parties, the circuit court entered an interlocutory order

dated April 11, 2012 in which it ruled that:

Code § 15.2-2303.1:1 is to be applied to any and all
cash payments owed pursuant to any and all cash
proffers requested, offered, or accepted for
residential construction on a per-dwelling unit or
per-home basis, notwithstanding whether such
proffered payments were agreed to prior to or after
the effective date of that statute.

The court further ruled that "the county violated applicable

law by collecting the cash proffers at issue . . . prior to

final inspection." Accordingly, the court denied the County's

motion for summary judgment, granted summary judgment for the

developers and Williamsburg Landing on the County's complaint

for declaratory judgment, and granted judgment for the

developers on their counterclaim. The court continued the

matter to determine whether to award attorney's fees to the

developers and Williamsburg Landing.

On October 31, 2012, the circuit court entered a final

order of judgment awarding attorney's fees and costs to the

developers and Williamsburg Landing. The County objected to

the awards on the ground that Code § 15.2-2303.1:1(C) did not

provide for an award of attorney's fees for successfully

responding to a complaint for declaratory judgment. The

7
County further objected that the developers' "redundant

Counterclaim" also did not warrant such an award because the

cash proffers had been voluntarily paid, and even if it did,

Williamsburg Landing had not filed a counterclaim and, thus,

would not be entitled to attorney's fees.

We awarded the County this appeal.

DISCUSSION

The County's first assignment of error reads:

The circuit court erred in determining that Va. Code
§ 15.2-2303.1:1 is to be applied retroactively,
despite the absence of any statement of
retroactivity contained within Chapters 549 and 613
of the 2010 Acts of Assembly, without any evidence
or witness testimony to rebut the long-standing
presumption against retroactive laws, and without
reconciling statutes in determining retroactivity.

The County, citing Berner v. Mills, 265 Va. 408, 413, 579

S.E.2d 159, 161 (2003), contends "that retroactive laws are

not favored and that a statute is always construed to operate

prospectively unless a contrary legislative intent is

manifest." Because the language of Code § 15.2-2303.1:1 does

not contain a "clear, explicit, or unequivocal" statement of

its retroactive application, the County maintains that its

plain language required the circuit court to find that it did

not apply to proffers agreed to prior to its effective date.

The County further contends that the legislature could

not have intended for Code § 15.2-2303.1:1(A) to apply to cash

8
proffers agreed to prior to its effective date because this

would conflict with other statutory provisions regarding

proffers. Specifically, the County notes that Code

§ 15.2-2303.3(A) permits zoning petitioners to agree to pay

cash proffers in advance of the issuance of a building permit

and provides for a cause of action against a petitioner or

successor who fails to ensure payment was made in accord with

the proffer. If no cash proffer could be collected prior to a

final inspection, the County contends that Code § 15.2-2303.3

would be rendered meaningless.

The developers and Williamsburg Landing respond that the

language of Code § 15.2-2303.1:1(A), when properly construed,

applies to "any cash proffer" due after June 30, 2010,

including those called for in proffers accepted prior to the

statute's effective date. They contend that even if the

language of the statute is not plain and unambiguous, the

circuit court's construction of that language would

nonetheless be correct because it is consistent with the

opinion of the Attorney General on the statute's application,

and in accord with this Court's prior interpretation of the

contextual use of "any" in the statute at issue in Sussex

Community Services Association v. Virginia Society for

Mentally Retarded Children, Inc., 251 Va. 240, 467 S.E.2d 468

(1996). We agree.

9
 "When the language of a statute is unambiguous,
we are bound by the plain meaning of that language.
Furthermore, we must give effect to the
legislature's intention as expressed by the language
used unless a literal interpretation of the language
would result in a manifest absurdity. If a statute
is subject to more than one interpretation, we must
apply the interpretation that will carry out the
legislative intent behind the statute."

Commonwealth v. Leone, 286 Va. 147, 150, 747 S.E.2d 809, 811

(2013)(quoting Conyers v. Martial Arts World of Richmond,

Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)). "'[W]hen

the legislature has used words of a clear and definite

meaning, the courts cannot place on them a construction that

amounts to holding that the legislature did not intend what it

actually has expressed.'" Paugh v. Henrico Area Mental Health

& Developmental Servs., 286 Va. 85, 89, 743 S.E.2d 277, 279

(2013)(quoting Hubbard v. Henrico Ltd. P'ship, 255 Va. 335,

339, 497 S.E.2d 335, 337 (1998)).

The County is correct that in Berner we stated that it is

a "fundamental principle[] of statutory construction that

retroactive laws are not favored, and that a statute is always

construed to operate prospectively unless a contrary

legislative intent is manifest." Berner, 265 Va. at 413, 579

S.E.2d at 161; see also Adams v. Alliant Techsystems, Inc.,

261 Va. 594, 599, 544 S.E.2d 354, 356 (2001); McIntosh v.

Commonwealth, 213 Va. 330, 331-32, 191 S.E.2d 791, 792 (1972).

Moreover, Code § 1-239, formerly Code § 1-16, provides that

10
"[n]o new act of the General Assembly shall be construed to

repeal a former law, as to . . . any right accrued, or claim

arising under the former law, or in any way whatever to affect

. . . any right accrued, or claim arising . . . before the new

act of the General Assembly takes effect." See also City of

Norfolk v. Kohler, 234 Va. 341, 345, 362 S.E.2d 894, 896

(1987); Va. Const. art. I, § 11 ("the General Assembly shall

not pass any law impairing the obligation of contracts.").

That having been said, this Court has never required that

the General Assembly use any specific form of words to

indicate that a new statute or amendment to an existing

statute is intended to be applied retroactively. Sussex

Community Services, 251 Va. at 245, 467 S.E.2d at 470; see

also Hagen v. Hagen, 205 Va. 791, 796, 139 S.E.2d 821, 824

(1965). Rather, we look to the context of the language used

by the legislature to determine if it "'shows it was intended

to apply retroactively and prospectively.'" Buenson Div.,

Aeronca, Inc. v. McCauley, 221 Va. 430, 433, 270 S.E.2d 734,

736 (1980)(quoting Allen v. Mottley Construction Co., 160 Va.

875, 889, 170 S.E. 412, 417 (1933)).

Thus, in Sussex Community Services we concluded that the

term "any restrictive covenant" in Code § 36-96.6(C), which

had been added to the statute by amendment in 1991, applied

retroactively to restrictive covenants recorded before the

11
effective date of the amendment. 251 Va. at 244-45, 467

S.E.2d at 470. Applying a similar analysis to the relevant

language of Code § 15.2-2303.1:1(A), it is clear that in the

overall context of the statute the legislature intended to

limit the time for payment of cash proffers to the period

following a final inspection and before the issuance of a

certificate of occupancy "[n]otwithstanding the provisions of

any cash proffer requested, offered, or accepted." (Emphasis

added.) The plain meaning of this language clearly indicates

that even if an existing cash proffer already agreed to, but

not yet due on the effective date of the statute, requires a

payment to a locality before the completion of a final

inspection, the new statute would apply, "[n]otwithstanding"

that requirement, to delay the authority of the locality to

demand or accept payment until after the final inspection of a

subject unit is completed.

The Attorney General recognized, consistent with Code

§ 1-239 and Article 1, Section 11 of the Constitution of

Virginia that Code § 15.2-2303.1:1(A) could not be applied so

as to "impair the contract or vested rights of the zoning

applicant" if, for example, a previously agreed to proffer

required a payment to be made after the issuance of a

certificate of occupancy. 2010 Op. Atty. Gen. 65 at 4. By

way of contrast, the County cannot claim that Code

12
§ 15.2-2303.1:1(A) has divested it of a contact right to

collect cash proffers prior to completing a final inspection

because, as the Attorney General noted, the rule disfavoring

retroactive application of statutes that is embodied in Code §

1-239 and Article 1, Section 11 "operates to protect private

parties from the government." 2010 Op. Atty. Gen. 65 at 3;

see also City of Portsmouth v. Virginia Ry. & Power Co., 141

Va. 44, 46-47, 126 S.E. 366, 367 (1925)(operation of

comparable federal provision). The authority of the County to

enforce zoning proffers devolves from the state, and it is

certainly within the power of the state to modify or withdraw

such power if it sees fit to do so. Virginia Ry. & Power Co.,

141 Va. at 50, 126 S.E. at 368.

The circuit court's order likewise reflects its

understanding that "Code § 15.2-2303.1:1 is to be applied to

any and all cash payments owed" to a locality under a zoning

proffer "notwithstanding whether such proffered payments were

agreed to prior to or after the effective date of that

statute." Contrary to the position taken by the County, the

circuit court's construction of the statute does not alter

"retroactively" the proffers agreed to by the developers and

Williamsburg Landing, rather it acts to limit the time during

which the County can demand or accept payments under those

proffers.

13
 We also do not agree with the County that there is any

conflict between Code § 15.2-2303.1:1(A) and Code

§ 15.2-2303.3. There is no conflict between the two statutes

when the legislative intent underlying Code § 15.2-2303.1:1(A)

is properly recognized as expressing a limitation only on when

a locality may require or accept the payment of cash proffers.

Nothing in Code § 15.2-2303.1:1(A) prohibits zoning applicants

from offering different terms, which might be subject to

enforcement if and when the sunset provision of Code

§ 15.2-2303.1:1(D) becomes effective, consistent with Code §

15.2-2303.3. Nor does Code § 15.2-2303.3 prohibit a locality

from undertaking an action to enforce a cash proffer, provided

that the right of the locality to demand payment of the

proffer has accrued under the terms of the proffer and Code §

15.2-2303.1:1(A) while it is in effect.

For these reasons, we hold that the circuit court did not

err in concluding that payments of cash proffers owed to a

locality under rezoning agreements adopted prior to July 1,

2010 were nonetheless subject to Code § 15.2-2303.1:1(A) for

the purpose of determining when the locality's right to

receive or accept the payment would accrue. Accordingly, we

will affirm the judgment of the circuit court denying the

County's motion for summary judgment and granting summary

14
judgment to the developers and Williamsburg Landing on the

County's complaint for declaratory judgment.

We now turn to the issue raised in the County's second

assignment of error asserting that the circuit court erred in

awarding attorney's fees to any of the respondents under Code

§ 15.2-2303.1:1(C). This Code section became effective on

July 1, 2011, and provides that:

[i]n addition to any other relief provided, the
court may award reasonable attorney fees, expenses,
and court costs to any person, group, or entity that
prevails in an action successfully challenging an
ordinance, administrative or other action as being
in conflict with this section.

Initially, we note that the County has not asserted on

appeal, as it did below, that Code § 15.2-2303.1:1(C) is

inapplicable to this case because the complaint for

declaratory judgment was filed one day prior to the effective

date of that amendment to the statute. We further note that

neither the developers nor Williamsburg Landing alleged in the

proceedings in the circuit court that any County ordinance was

in violation of the statute. Thus, the issue becomes whether

either of these parties "successfully challeng[ed] an . . .

administrative or other action" of the County that was in

conflict with Code § 15.2-2303.1:1.

During oral argument of this appeal, counsel for

Williamsburg Landing conceded that in responding to the

15
County's complaint for declaratory judgment, it did not

challenge the County's acceptance of any cash proffers from

Williamsburg Landing, nor did it file a counterclaim

challenging that action or otherwise seek any relief apart

from a favorable ruling in the declaratory judgment action

with respect to the circuit court's interpretation of Code

§ 15.2-2303.1:1(A). Accordingly, it is patent that

Williamsburg Landing did not successfully challenge an

administrative or other action of the County as contemplated

by Code § 15.2-2303.1:1(C) in the proceedings in the circuit

court, and we hold that the court thus erred in awarding

attorney's fees and costs to Williamsburg Landing.

With respect to the attorney's fees awarded to the

developers, the County contends that Code § 15.2-2303.1:1(C)

has no application to a declaratory judgment action, and that

attorney's fees and costs generally are not available to a

prevailing party in such actions. The County further contends

that the circuit court erred in awarding attorney's fees to

the developers under their counterclaim because there is no

evidence that the County took any administrative or other

action in conflict with Code § 15.2-2303.1:1. Thus, the

County maintains that its acceptance of voluntary cash

proffers by the developers after July 1, 2010 did not

16
constitute an "action" which the developers successfully

challenged in the proceedings in the circuit court.

The developers respond that their counterclaim expressly

challenged the "action" of the County in accepting cash

proffers prior to the completion of a final inspection of the

subject dwelling units. Because Code § 15.2-2303.1:1(A)

expressly forbids the County from accepting payments under the

proffers prior to the time specified, the developers maintain

that the circuit court correctly recognized that the

developers prevailed on their counterclaim and, thus, were

entitled to recover attorney's fees and costs under Code

§ 15.2-2303.1:1(C). We agree.

"The purpose of a declaratory judgment proceeding is the

adjudication of rights" between the parties as to "an actual

controversy." Charlottesville Area Fitness Club Operators

Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87, 98,

737 S.E.2d 1, 6 (2013). The plain language of the Declaratory

Judgment Act, Code § 8.01-184 et seq., "does not authorize a

court to make an award of attorney's fees" to a prevailing

party. Russell County Department of Social Services. v.

O'Quinn, 259 Va. 139, 142, 523 S.E.2d 492, 493 (2000).

Nonetheless, in some instances an award of attorney's fees may

be proper in an action seeking declaratory relief if such an

award is authorized by another statute or contract implicated

17
in the action. See. e.g., Mozley v. Prestwould Board of

Directors, 264 Va. 549, 555-56, 570 S.E.2d 817, 821 (2002).

In order for a court to award attorney's fees in such cases,

the party seeking the award must show that the statute or

contract that authorizes such awards is applicable to the

judgment obtained.

Mozley is instructive on the circumstances under which a

party to a declaratory judgment action may be entitled to an

award of attorney's fees provided for by a statute implicated

in the action. In Mozley, a condominium owner had sought to

challenge by a declaratory judgment action an assessment of

the costs of repairs to exterior windows of other units on the

ground that these repairs did not involve "limited common

elements" under the Virginia Condominium Act, Code § 55-79.39

et seq. Id. at 551-52, 570 S.E.2d at 819. In affirming the

trial court's award of attorney's fees in favor of the

condominium board, we held that Code § 55-79.53(A) provided

for such an award in any litigation related to disputes

concerning "any claims or actions related to the common

elements." Id. at 555-56, 570 S.E.2d at 821. We concluded

that the board was entitled to the award notwithstanding the

fact that Mozley "paid the full amount assessed . . . without

requiring the board to obtain a judgment against her."

18
 In the present case, in both their answer to the

declaratory judgment action and their counterclaim, the

developers asserted that they were entitled "to the refund of

any and all monies collected or accepted by the County in

violation of Code § 15.2-2303.1:1." (Emphasis added.)

Although the circuit court's interlocutory order of April 11,

2012 sustaining the developers' motion for summary judgment

made no award to the developers for a refund of cash proffers,

it nonetheless found that "the County violated applicable law

by collecting the cash proffers at issue . . . prior to final

inspection." More significantly, the October 31, 2012 final

order expressly provides that "[t]he foregoing [judgment] is

without prejudice to the rights of any party hereto to seek

further relief in this case or in any other case based on the

rulings made by th[is] Court in this order."

Although the County concedes that it accepted cash

payments of proffers on individual dwelling units prior to the

completion of a final inspection from the developers after

June 30, 2010, it nonetheless contends that there is a "total

absence of any evidence or testimony challenging a County

ordinance, administrative, or other action as [being] in

conflict with Va. Code § 15.2-2303.1:1." This is so, the

County maintains, because acceptance of these "voluntary"

19
payments from the developers did not constitute an "action" on

the part of the County. We disagree.

Unlike Williamsburg Landing, which concedes that it

challenged only the County's request for a declaratory

judgment construing Code § 15.2-2303.1:1(A) to permit it to

continue accepting cash payments prior to the completion of a

final inspection of a dwelling unit, in both their answer and

counterclaim the developers expressly challenged the County's

action in having accepted such payments between July 1, 2010

and May 18, 2011. The language of Code § 15.2-2303.1:1(A)

unambiguously provides that after June 30, 2010 cash proffers

"shall be collected or accepted by any locality only after

completion of the final inspection." (Emphasis added.) The

plain meaning of "collected or accepted" is that the statute

applies to all such payments without regard to whether they

are "collected" by demand of the locality or "accepted" by

voluntary payment of the property owner. Although the record

on summary judgment does not establish what refunds, if any,

the developers would be entitled to seek, the record

adequately supports the conclusion that the developers

prevailed in their challenge to the County's action of

20
accepting payments in violation of the statute. 3 Accordingly,

we hold that the circuit court did not err in awarding

attorney's fees and costs to the developers under Code

§ 15.2-2303.1:1(C).

CONCLUSION

In summary, we hold that the circuit court did not err in

ruling that Code § 15.2-2303.1:1(A) applies to all payments of

cash proffers due on or after July 1, 2010 regardless of

whether the proffers were agreed to prior to that date. We

further hold that the court did not err in awarding attorney's

fees and costs to the developers, but that the award of

attorney's fees and costs to Williamsburg Landing was error in

that Williamsburg Landing's response to the County's complaint

for declaratory judgment did not constitute a successful

challenge to an administrative or other action of the County.

Accordingly, the circuit court's judgment will be

affirmed in part, reversed in part, and the case will be

3
We recognize the likelihood that payments made by the
developers and accepted by the County between July 1, 2010 and
May 18, 2011 subsequently became due under Code
§ 15.2-2303.1:1(A) during the pendency of this action when
final inspections of the dwelling units were completed.
However, just as in Mozley, the issue is not whether the party
obtained a monetary judgment in addition to a favorable ruling
on the declaratory action, but rather whether the record shows
that the party prevailed on a claim implicated by the statute
providing for an award of attorney's fees. See 264 Va. at
555-56, 570 S.E.2d at 820-21.

21
remanded for further proceedings to determine whether the

developers are entitled to a further award of attorney's fees

and expenses for this appeal.

Affirmed in part,
reversed in part, and
remanded.

22