Present: All the Justices
THE LAMAR COMPANY, LLC
v. Record No. 131235
CITY OF RICHMOND OPINION BY
JUSTICE DONALD W. LEMONS
April 17, 2014
ALAN T. SHAIA, ET AL.
v. Record No. 131249
CITY OF RICHMOND
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, we consider whether the Circuit Court of
the City of Richmond ("circuit court") erred by holding that
Code § 15.2-2307 is "merely enabling" legislation and granting
the demurrer filed by the City of Richmond ("City").
I. Facts and Proceedings Below
These consolidated appeals arise from the circuit court's
judgment sustaining the City's demurrer and dismissing the
complaints for declaratory judgment filed by Alan T. Shaia and
Wayne T. Shaia (the "Shaias") and The Lamar Company, L.L.C.
("Lamar"). The Shaias are the owners of real property located
at 501 South 14th Street, on Mayo Island in Richmond, Virginia.
Lamar leases the property from the Shaias and maintains a
billboard on the premises which is visible from Interstate 95.
The City brought an enforcement action against Lamar and
the Shaias seeking removal of the billboard, or in the
alternative, requiring the billboard to be lowered to a
conforming height. Lamar and the Shaias filed separate
complaints for declaratory judgment against the City alleging
that "the City may not require removal of [the billboard] if the
City has been paid taxes for more than 15 years." In response,
the City filed demurrers, pleas in bar, and motions for
sanctions against all plaintiffs. The circuit court conducted
hearings on the City's pleadings on December 14, 2012 and April
10, 2013. Following the hearings, the circuit court held:
This suit for declaratory relief under the
Declaratory Judgment Act, [which] involves
plaintiffs’ request for a declaration of
rights and obligations of the parties under
Va. Code § 15.2-2307[,] is premature as the
statute is merely enabling law empowering
local governments the means to enact
ordinances consistent therewith. Here,
plaintiffs’ allegations are devoid of any
reference that the defendant has enacted any
ordinance under the statute, in the absence
of which the Complaint is not based on
present but speculative facts, not ripe for
judicial assessment and otherwise seeks an
advisory opinion.
In its final orders, the circuit court sustained the City's
demurrers, denied the motions for sanctions, and held that the
pleas in bar were rendered moot as a result of its ruling on the
demurrers.
Lamar and the Shaias noted their appeals to this Court and
we awarded an appeal on their single assignment of error:
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The Circuit Court erred in sustaining the City's
Demurrer by finding that the Vested Rights Statute in
VA Code § 15.2-2307 is "merely enabling" legislation
and that private property owners in the Commonwealth
do not have these statutory vested rights protections
unless a local government chooses to adopt an
implementing ordinance thereunder. Because of this
fundamental misinterpretation of the Statute, the
Circuit Court dismissed the Complaint on the Basis
that Lamar [and the Shaias] could not allege, as a
condition precedent for a vested rights claim, that
Richmond City Council had passed an ordinance to
implement the 2008 Amendment.
II. Analysis
A. Standard of Review
Whether Code § 15.2-2307 is enabling legislation is a
question of law which we review de novo. See Conyers v. Martial
Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174,
178 (2007).
B. Is Code § 15.2-2307 Merely Enabling Legislation?
When interpreting a statute this Court applies well-
established rules of statutory construction. In Laws v.
McIlroy, 283 Va. 594, 598, 724 S.E.2d 699, 702 (2012), we
stated: "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." (Internal
quotation marks omitted.)
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Dillon's Rule provides that "municipal corporations have
only those powers that are expressly granted, those necessarily
or fairly implied from expressly granted powers, and those that
are essential and indispensable." Marble Techs., Inc. v. City
of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010)(internal
quotation marks omitted). Enabling legislation is the
mechanism by which the General Assembly "expressly grants" power
to local governments. Therefore, by nature, enabling acts are
permissive. See, e.g., Shealor v. City of Lodi, 145 P.2d 574,
575, 577 (Cal. 1944); Huggins v. Wacaster, 266 S.W.2d 58, 60
(Ark. 1954). In contrast, restrictive legislation limits the
power of local governments. See Marble Techs., 279 Va. at 418-
19, 690 S.E.2d at 88-89. Applying these principles, we must
decide whether the General Assembly intended to grant or
restrict power when enacting Code § 15.2-2307.
Code § 15.2-2307 provides, in relevant part, that:
[N]otwithstanding any local ordinance to the
contrary, if . . . the owner of the building
or structure has paid taxes to the locality
for such building or structure for a period
in excess of 15 years, a zoning ordinance
may provide that the building or structure
is nonconforming, but shall not provide that
such building or structure is illegal and
shall be removed solely due to such
nonconformity.
The opening clause, "[n]otwithstanding any local ordinance to
the contrary," demonstrates the General Assembly's intent to
forbid local governments from declaring an existing building or
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structure illegal after taxes have been paid for 15 years or
more. * Similarly, the General Assembly signaled its intent to
limit local authority by including this restrictive language: "a
zoning ordinance . . . shall not provide that such building or
structure is illegal and shall be removed solely due to such
nonconformity." Id. Based on the plain language of the
statute, we hold that the fourth paragraph of Code § 15.2-2307
cannot be construed as an enabling provision.
III. Conclusion
The circuit court erred by holding that Code § 15.2-2307 is
"merely enabling" legislation. We will reverse the circuit
court's judgment and will remand this case for further
proceedings in accordance with this opinion.
Reversed and remanded.
*
"Notwithstanding" is defined as "despite [or] in spite of."
Black’s Law Dictionary, 1168 (9th ed. 2009). The Court of
Appeals of Virginia, using Webster’s Dictionary, defined
"notwithstanding" as "without prevention or obstruction from or
by." Green v. Commonwealth, 28 Va. App. 567, 569-70, 507 S.E.2d
627 (1998).
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