Glazebrook v. Board of Supervisors

Present: All the Justices

RAYNOLD C. GLAZEBROOK, JR., TRUSTEE, ET AL.

                                              OPINION BY
v.   Record No. 022937                  JUSTICE DONALD W. LEMONS
                                             October 31, 2003

BOARD OF SUPERVISORS OF SPOTSYLVANIA COUNTY

          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                 William H. Ledbetter, Jr., Judge

      In this appeal, we consider whether the Board of

Supervisors for Spotsylvania County (“the Board”) provided

adequate notice pursuant to Code § 15.2-2204(A) prior to

holding a hearing and voting on text amendments to the

County’s zoning ordinances.

                    I.   Facts and Proceedings

      In response to the perceived threat to the infrastructure

of Spotsylvania County posed by rapid growth, the Board

scheduled hearings for February 6 and 12, 2002 to amend the

County’s zoning ordinances. 1   The advertisements stated the

time, date, and location of the hearing.    They also listed the

zoning districts to be affected, the zoning ordinance section

numbers and titles, and stated that the hearing would affect

“development standards.”    A reference to the location of the


      1
       The Board published advertisements in the Fredericksburg
Free Lance-Star on January 23, 2002 and January 30, 2002 for
the hearing on February 6, 2002. The Board published
advertisements in the same newspaper on January 30, 2002 and
February 6, 2002 for the hearing on February 12, 2002.
full text of the amendment proposals was also included.      Of

importance to the case before us, the published notices

contained the following:

     Amendment(s)

       02-A Board of Supervisors: Amendments to
     Chapter 23, Zoning, Article 6, Zoning
     Districts, of the Code of the County of
     Spotsylvania, as follows:

     Section 23-6.2.4. Development standards.
     Amend development standards for the
     agricultural 1(A-1) district.

     Chapter 23, Article 6, Division 2, subparagraph 4 (§ 23-

6.2.4 of the Code of the County of Spotsylvania) is entitled

“Development standards” and encompasses regulations addressing

maximum density, road frontage, open space requirements,

minimum lot requirements, and other characteristics.    On

February 12, 2002, the Board voted to amend these “development

standards.”

     Raynold C. Glazebrook and Realco-Route 3, L.L.C.

(collectively, “Glazebrook”), along with a number of parties

not before us at this time, brought suit against the Board on

multiple grounds including a claim that the Board had failed

to publish adequate notice of its proposed amendments as

required by Code § 15.2-2204(A).   The Board demurred and the

trial court sustained the Board’s demurrer on all but two

counts, which did not apply to Glazebrook.   On appeal,

                               2
Glazebrook’s two assignments of error challenge the sustaining

of the demurrer and encompass only one issue.   Glazebrook

maintains that the publication in the Fredericksburg Free

Lance-Star provided insufficient notice in violation of Code

§ 15.2-2204(A).   Glazebrook asserts that the Board’s notice

that it would “[a]mend development standards” for the named

zoning districts was not specific enough to satisfy the

requirement that the Board publish a “descriptive summary” of

the action it planned to consider at its hearing.   Because of

the defect in notice, Glazebrook argues that the ordinance is

void ab initio.

                     II.   Standard of Review

     A demurrer tests the legal sufficiency of facts alleged

in pleadings, not the strength of proof.   We accept as true

all facts properly pleaded in the bill of complaint and all

reasonable and fair inferences that may be drawn from those

facts.   W.S. Carnes, Inc. v. Board of Supervisors, 252 Va.

377, 384, 478 S.E.2d 295, 300 (1996); Burns v. Board of

Supervisors, 218 Va. 625, 627, 238 S.E.2d 823, 824-25 (1977);

Chippenham Manor, Inc. v. Dervishian, 214 Va. 448, 450, 201

S.E.2d 794, 796 (1974).    Because appellate review of the

sustaining of a demurrer involves a matter of law, we review

the trial court’s judgment de novo.

                                 3
                          III.   Analysis

     The heart of this controversy is the meaning of the

phrase “descriptive summary” in Code § 15.2-2204(A) which

provides:

     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.

(emphasis added).   If the notice published by the Board did

not meet the requirements of Code § 15.2-2204, the Board acted

outside the authority granted by the General Assembly and the

amendments are void ab initio.    See City Council of the City

of Alexandria v. Potomac Greens Assoc., 245 Va. 371, 378, 429

S.E.2d 224, 228 (1993)(failure to give required notices

rendered an ordinance “void ab initio”).

               A.   Definition of “Descriptive Summary”

     Parsing the phrase “descriptive summary” into its

component parts, the word “descriptive” modifies the word

“summary.”   “Descriptive” means “serving to describe.”

“Describe” means “to represent by words written or spoken for

the knowledge or understanding of others.”     Webster’s Third

New International Dictionary 610 (1993).     A summary “cover[s]
                                 4
the main points concisely” but “lack[s] detailed explanation.”

Id. at 2289.   Thus, 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.

     This literal definition of the phrase establishes the

foundation for interpretation of what satisfies the

requirements of Code § 15.2-2204(A).    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.

     Other language of Code § 15.2-2204(A) requires that the

notice published by a locality “specify the time and place of

hearing at which persons affected may appear and present their

views.”   Code § 15.2-2204(A).   This language 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

                                  5
hearing or to decide what their interests may be in a proposed

amendment.   See also Lawrence Transfer & Storage Corp. v.

Board of Zoning Appeals of Augusta, 229 Va. 568, 571, 331

S.E.2d 460, 462 (1985) (determining that the intent of

subsection B of the statute replaced by Code § 15.2-2204 was

“to afford property owners who are closest to the land

involved an opportunity to be heard by the Board.”).

     In City of Portsmouth v. County of Suffolk, 198 Va. 247,

251, 93 S.E.2d 296, 300-01 (1956), we held that former Code

§ 15.1-152.5, requiring publication of an “informative

summary” of proposed annexations, was designed to “supply

those who may be affected thereby, or interested therein, with

certain information from which they may determine whether or

not to act in support of or against the proposed annexation.” 2

Although it involves a different portion of the Code, the

opinion expresses the same concerns that drive the need for

adequate public notice in the zoning context.   We have

previously stated that, as a whole, Virginia’s zoning statutes

are designed to prevent zoning changes from being made

“suddenly, arbitrarily, or capriciously.”   Bd. of Supervisors


     2
       The General Assembly has since changed the language to
require a “descriptive summary” of the annexation ordinance.
Code § 15.2-3204. The motivation for the change is not clear
and the two phrases are not, on their faces, significantly
different.
                               6
of Fairfax County v. Snell Construction Corp., 214 Va. 655,

658, 202 S.E.2d 889, 892 (1974).

     The history of Code § 15.2-2204(A) adds further

illumination.   Prior to 1992, the statute did not require the

notice published by the locality to contain a “descriptive

summary” or a summary of any kind.   In 1992, the General

Assembly inserted the “descriptive summary” requirement.    Acts

1992 ch. 757.   This change by the General Assembly suggests

that it is not enough to provide information that will merely

direct readers to the physical location of the actual text of

the proposed amendments.   The “descriptive summary”

requirement goes beyond referral to the primary document.

                            B.   The Notice

     We must determine whether the notice published by the

Board in the Fredericksburg Free Lance-Star contained a

“descriptive summary” as required in Code § 15.2-2204(A).    The

notice merely stated that the “development standards” for the

specified zoning districts in question would be amended.

“Development standards,” as the phrase is used in the

ordinance, is a heading within which are a number of

subheadings describing specific regulations.   In other words,

“development standards” is the umbrella title for regulations

including minimum road frontage, residential and non-

                                 7
residential densities, lot areas for various uses, minimum lot

width, and maximum height of structures on the land.

     We hold that the notice published by the Board did not

contain a sufficiently descriptive summary of the proposed

amendments to the Spotsylvania 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.   Both the evolution of the

statute and the treatment of analogous statutes illustrate

that such a notice is inadequate under Code § 15.2-2204(A).

     We do not, in this opinion, attempt to dictate the exact

language of future notices, nor do we seek to establish a

bright line rule.   However, considering the intent and

language of the statute, the notice in this case was

inadequate.   Because the notice was inadequate in failing to

provide a “descriptive summary,” the Board acted outside the

                                8
powers granted to it.   See Code § 15.2-2204; Potomac Greens

Assoc., 245 Va. at 378, 429 S.E.2d at 228.    Consequently, the

zoning ordinances passed pursuant to the notices published on

January 23, January 30, and February 6, 2002 and at issue in

this case are void ab initio.

                         IV.   Conclusion

     For these reasons, we reverse the judgment of the trial

court and remand for further proceedings consistent with this

opinion.

                                            Reversed and remanded.




                                 9