Sussex Com. Serv. v. Soc. for Ment. Ret.

Present: All the Justices

SUSSEX COMMUNITY SERVICES ASSOCIATION

v. Record No. 950843 OPINION BY JUSTICE ELIZABETH B. LACY
March 1, 1996
THE VIRGINIA SOCIETY FOR
MENTALLY RETARDED CHILDREN, INCORPORATED

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Jr., Judge

The issue in this appeal is whether Code § 36-96.6(C)

applies retroactively to restrictive covenants recorded in 1975.
Sussex Community Services Association (Sussex) is a nonstock

corporation whose members are the owners of lots located in the

Sussex residential subdivision in Henrico County. All lots in

the subdivision are subject to restrictive covenants that were

recorded on June 10, 1975. One of those covenants provides that

an owner of real property in the subdivision may not "occupy or

use his Lot . . . for any purpose other than as a private single-

family residence."

The Virginia Society for Mentally Retarded Children, Inc.

(the Society) purchased a vacant lot in the subdivision and

executed a contract to purchase another lot with an existing

house in the subdivision. The Society intends to use the

existing house as a group home for six unrelated mentally

retarded young adults, with a paid employee staff of two with one

or more present at all times. The Society plans to construct a

house on the vacant lot and use it for the same purpose.

Sussex filed a bill of complaint seeking a declaratory

judgment that the Society's proposed use of the two lots violated

the restrictive covenant limiting the use of lots in the
subdivision to single-family dwellings. The Society responded

that the restrictive covenant was subject to Code § 36-96.6(C)

which provides that group homes such as those proposed by the

Society are considered "residential occupancy by a single family"

when construing a restrictive covenant limiting occupancy to

members of a single family. Following a hearing and argument of

counsel, the trial court concluded that Code § 36-96.6(C) applied

to the restrictive covenant and entered an order holding that the

covenant could not be enforced against the Society. We awarded

Sussex an appeal.
In its appeal, Sussex asserts that the current version of

Code § 36-96.6(C), as amended in 1991, cannot be applied to

covenants recorded in 1975. Sussex bases its position on the

principle that statutes are generally presumed to be prospective

in their application unless the General Assembly has manifested

its clear intent to apply the statute retroactively. Gloucester

Realty Corp. v. Guthrie, 182 Va. 869, 875, 30 S.E.2d 686, 688-89

(1944). In this case, Sussex asserts, there is no manifestation
1
of such a legislative intent.
We begin our analysis of the issue presented by Sussex with

an examination of the express language of Code § 36-96.6(C):
A family care home, foster home, or group home in which
physically handicapped, mentally ill, mentally
retarded, or developmentally disabled persons reside,
with one or more resident counselors or other staff
persons, shall be considered for all purposes
residential occupancy by a single family when
1
In oral argument Sussex specifically stated that it is
not challenging the ability of the General Assembly to apply
Code § 36-96.6(C) retroactively, and that issue is not before
us.
 construing any restrictive covenant which purports to
restrict occupancy or ownership of real or leasehold
property to members of a single family or to
residential use or structure.

The language of the section makes it applicable to "any

restrictive covenant" restricting occupancy to members of a

single family. Therefore, construction of the word "any," added

by the 1991 amendment, is pivotal in determining the intended

application of the section.

The word "any," like other unrestrictive modifiers such as

"an" and "all," is generally considered to apply without

limitation. We have held that the phrase "any action" includes

actions filed both before and after the passage of the statute in

which the phrase was used. Town of Danville v. Pace, 66 Va. (25

Gratt.) 1, 4 (1874). We have said that a provision including the

phrase "all condominiums" was consistent with an intent that the

provision applies to all condominiums existing at the time the

legislation was enacted. Harbour Gate Owners' Ass'n v. Berg, 232

Va. 98, 103, 348 S.E.2d 252, 255 (1986). Similarly in the

context of the Workers' Compensation Act, Code §§ 65.2-100

through -1310, we have held that the phrase "an award" is all-

inclusive, applying to awards made both before and after

statutory amendment. Buenson Div. v. McCauley, 221 Va. 430, 433,

270 S.E.2d 734, 736 (1980); Allen v. Mottley Constr. Co., 160 Va.

875, 889-90, 170 S.E. 412, 417 (1933). In Allen, we noted that

in order to apply the statute prospectively only, it would be

necessary to judicially amend the statute, "supply[ing] words not

found in the statute," so that the phrase would read "any award
hereafter made." 160 Va. at 889, 170 S.E. at 417.

The analysis used in Allen has continued to be a "'decisive'

example of a situation where retrospective intent is expressed in

legislative language." Buenson Div. v. McCauley, 221 Va. at 435,

270 S.E.2d at 737 (citing Duffy v. Hartsock, 187 Va. 406, 417-19,

46 S.E.2d 570, 575-76 (1948)). Our conclusion in Allen, that

nothing in the phrase "an award" "confines its operations to

either past or future awards, but both are included," 160 Va. at

890, 170 S.E. at 417, is equally applicable to the phrase "any

covenant" as used in Code § 36-96.6(C). The plain meaning of the

phrase "any covenant" encompasses all covenants of the type

described in the statute without limitation, whether recorded

before or after 1991.
The conclusion we reach with regard to the meaning of the

plain language of the statute is reinforced by its legislative

history. As originally enacted in 1986, subsection C

specifically applied only to restrictive covenants executed after
2
July 1, 1986. In 1989, the General Assembly established a joint

subcommittee to study site selection issues relating to

2
Code § 36-91(c), the predecessor to Code § 36-96.6(C),
provided in relevant part:

Notwithstanding any restrictive covenant executed
after July 1, 1986, which restricts occupancy or
ownership of real or leasehold property to members of
a single family or to residential use or structure, a
family care home, foster home or group home in which
no more than six physically handicapped, mentally
ill, mentally retarded or developmentally disabled
persons reside, with one or more resident counselors
or other staff persons, shall be considered for all
purposes residential occupancy by a single family.
residential facilities for the mentally disabled. In its 1990

report, the joint subcommittee identified restrictive covenants

as a barrier to securing housing for mentally disabled persons.

Report of the Joint Subcommittee Studying Site Selection of

Residential Facilities For Mentally Disabled To The Governor and

General Assembly of Virginia, Senate Document No. 36, at 3

(1990). Because Code § 36-96.6(C) as it then existed did not

apply to pre-July 1, 1986 covenants, the committee concluded that

a segment of the available housing was excluded from

consideration for group home residential facilities. Id. The

joint subcommittee recommended that subsection C be repealed

"because it appears to passively encourage discrimination and

does not apply to covenants executed prior to July 1, 1986." Id.

at 8-9.

In 1991, the General Assembly deleted language restricting

the application of the section to restrictive covenants executed

after July 1, 1986 and added the word "any." These amendments

manifest a clear intent of the General Assembly to apply

subsection C to restrictive covenants recorded both before and

after July 1, 1986. To conclude otherwise and find that current

subsection C applies only to post-1986 restrictive covenants, as

Sussex argues, would render the 1991 amendments to the subsection

meaningless. That result would be contrary to the principle that

statutory amendments are presumed purposeful and not unnecessary

or vain. Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va.

596, 600, 331 S.E.2d 476, 479 (1985).

It is true, as Sussex points out, that the General Assembly
often uses the phrase "heretofore or hereafter" to indicate that

a statute is to be applied both prospectively and

retrospectively. Indeed that phrase is used in subsection A of

Code § 36-96.6. As demonstrated in the cases discussed above,

however, we have never imposed a requirement that any specific

word or phrase be used in order to support a finding of clear

legislative intent of retroactive application. See Hagen v.

Hagen, 205 Va. 791, 796, 139 S.E.2d 821, 824 (1965). The failure

of the General Assembly to include this specific phrase in

subsection C does not override the unambiguous meaning of the

word "any" as used in the subsection and the clear import of the

1991 amendments to the subsection.
Accordingly, we will affirm the judgment of the trial court.

Affirmed.
CHIEF JUSTICE CARRICO, with whom JUSTICE COMPTON and JUSTICE
STEPHENSON join, dissenting.

I must concede that, in a previous case, this court has

given the word "any" the retrospective effect the majority

opinion gives it in today's decision. But it does not follow

that the word should always be given such effect.

As the Society points out on brief, this is the issue in the

present case: "Did the General Assembly intend that section 36-

96.6[C] apply to all restrictive covenants, or only to those

executed after its passage?" We ascertain legislative intent

from the language actually used, considering not only each word

that is employed but also how it is utilized in the context of

the whole statutory enactment. When the word "any" is considered
in this context, it becomes clear, in my opinion, that the

General Assembly did not intend that "any" should have the

retrospective effect the majority gives it today.

The word "any" is used not once but twice in § 36-96.6. It

appears in both subsections A and C. Subsection A reads as

follows:
Any restrictive covenant purporting to restrict
occupancy or ownership of property on the basis of
race, color, religion, national origin, sex,
elderliness, familial status, or handicap, whether
heretofore or hereafter included in an instrument
affecting the title to real or leasehold property, is
declared to be void and contrary to the public policy
of this Commonwealth.
(Emphasis added.)

Subsection C reads as follows:

A family care home, foster home, or group home in which
physically handicapped, mentally ill, mentally
retarded, or developmentally disabled persons reside,
with one or more resident counselors or other staff
persons, shall be considered for all purposes
residential occupancy by a single family when
construing any restrictive covenant which purports to
restrict occupancy or ownership of real or leasehold
property to members of a single family or to
residential use or structure.

(Emphasis added.)

If, in the enactment of § 36-96.6, it was intended that the

word "any," standing alone, should have retrospective effect, the

General Assembly need only have used that discrete word at the

beginning of subsection A. Yet, the General Assembly found it

necessary to state expressly that the provisions of the

subsection would apply to "[a]ny restrictive covenant . . .
heretofore or hereafter included in an instrument affecting the

title to real or leasehold property." (Emphasis added.)
 It is obvious to me the General Assembly did not intend that

the word "any," standing alone in subsection A, should have

retrospective effect. It strains credulity, therefore, after its

careful use of "heretofore or hereafter" in subsection A, to say

the General Assembly intended by its mere use of the word "any"

in subsection C, that the provisions of subsection C should also

be given retrospective effect. Accordingly, I would reverse the

judgment of the trial court and enter final judgment here in

favor of Sussex.