Norton v. City of Danville

PRESENT: All the Justices

CARL T. NORTON
                                             OPINION BY
v.   Record No. 032805                 JUSTICE G. STEVEN AGEE
                                         September 17, 2004
CITY OF DANVILLE, ET AL.

          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                    Joseph W. Milam, Jr., Judge


      In this appeal, we consider whether the Danville City

Council (the “city council”) acted contrary to law or so

arbitrarily as to constitute an abuse of discretion when it

affirmed the decision of the Danville Commission of

Architectural Review (the “commission”) not to grant a

certificate of appropriateness.     Carl T. Norton, appellant, also

argues that the city ordinances at issue creating the commission

exceed the power granted by Virginia Code § 15.2-2306, and are

therefore ultra vires and void.     For the reasons discussed

below, the judgment of the trial court will be reversed.

                 I.   BACKGROUND AND PROCEEDINGS BELOW

      Norton owns a home on Main Street in the historic district

of the City of Danville on what is commonly referred to as

“Millionaires Row.”     Norton’s house, constructed in 1884, is

described as an outstanding example of the Italianate style of

architecture.    Across Main Street from Norton’s house is the

Sutherlin mansion which is considered to be the best example of

Italianate architecture in the city.
        During the spring and summer of 2001, Norton’s house was

burglarized on three separate occasions.    That fall, upon the

recommendation of Danville police, Norton replaced the existing

wooden front door of his home with a door containing glass panes

to help officers patrolling Norton’s neighborhood see into the

house.

        Approximately four months after the installation of the new

glass door, Kenneth C. Gillie, Jr. (“Gillie”), the director of

the Danville Planning Division and the city’s zoning

administrator, drove by Norton’s home and saw the new door.

Gillie sent a letter to Norton informing him that he would need

to obtain a certificate of appropriateness from the commission

if he wanted to keep the glass-paned front door.    Otherwise,

Norton would have to reinstall a wooden door or be subject to a

criminal charge.

        The city council established the seven-member commission

pursuant to Code § 15.2-2306 to review improvements made in the

Danville historic district within view of a public right-of-way

or place.    For any such improvement to be lawful, the commission

must issue a certificate of appropriateness.

        In March 2002, the commission denied Norton’s application

for a certificate of appropriateness for the glass-paned front

door.    The commission instructed Norton to restore the front

door to its “original condition,” which the commission


                                   2
determined to be a wooden door with no glass panes.    Norton

reapplied for a certificate of appropriateness which the

commission again denied in May 2002 with a commission member

stating the Norton home was “perhaps one of the few remaining

original wooden door houses in this City.”

     Norton appealed the commission’s decision to the city

council, which affirmed the commission’s decision, noting “the

CAR [the commission] feels the door was wooden when it was

built.”   Neither the commission nor the city council recited a

factual basis for determining the appearance or composition of

the original door or whether it was indeed a solid wooden door

at the time the house was built.

     As authorized by the city code, Norton appealed to the

Circuit Court of the City of Danville, arguing the commission’s

action was “arbitrary.”    Norton also averred the applicable

municipal ordinances exceeded the power granted by state statute

rendering those ordinances, and the actions taken under them,

ultra vires and void.     In affirming the city council decision,

the trial court ruled that the issue of whether Norton’s home

should have a glass front door was fairly debatable and

therefore “the Court cannot substitute its judgment for that of

City Council.”   We awarded Norton this appeal.

                             II. ANALYSIS




                                   3
     We have not previously examined the scope of judicial

review under the historical preservation area statute, Code

§ 15.2-2306.    Accordingly, we begin our analysis with Norton’s

challenge to the validity of the municipal ordinances, enacted

pursuant to that statute, which is the basis of his initial

assignments of error.1

               A.   Validity of the Municipal Ordinances

     Virginia Code § 15.2-2306(3) and Danville City Code § 41-

109 authorize a limited appeal from the city council’s decision

regarding historic preservation matters.    In pertinent part,

Virginia Code § 15.2-2306(3), states:

     The court may reverse or modify the decision of the
     governing body, in whole or in part, if it finds upon
     review that the decision of the governing body is contrary
     to law or that its decision is arbitrary and constitutes an
     abuse of discretion, or it may affirm the decision of the
     governing body.

Code § 15.2-2306(3).     Accordingly, the Danville City Code

provides that a person aggrieved by a final decision of the city

council may file a petition with the circuit court as follows:

     The Circuit Court may reverse or modify the decision of the
     City Council, in whole or in part, if it finds upon review
     that the decision of the City Council is contrary to law or
     that its decision is arbitrary and constitutes an abuse of
     discretion; or, it may affirm the decision of the City
     Council.


     1
       In various iterations, Norton assigns error to the
enactment of the city ordinances regarding the establishment of
the commission, and its actions in his case, as ultra vires acts
and void under the Dillon rule.

                                   4
Danville City Code § 41-109.2

       Similar to a board of zoning appeals, an architectural

review commission “is a creature of statute possessing only

those powers expressly conferred upon it.”      Lake George Corp. v.

Standing, 211 Va. 733, 735, 180 S.E.2d 522, 523 (1971).       In

Board of Zoning Appeals v. University Square Associates, 246 Va.

290, 435 S.E.2d 385 (1993), this Court held that judicial review

of a decision of a board of zoning appeals is limited to the

issues delineated in the statute governing the appeal to a

circuit court.      We recognized under the limited standard of

review provided in the statute governing zoning appeals, “the

certiorari process does not authorize a trial court to rule on

the validity or constitutionality of legislation underlying a

board of zoning appeals decision.”       Id. at 294, 435 S.E.2d at

398.       Therefore, “a party seeking judicial review of a board of

zoning appeals decision may not challenge the validity of

underlying zoning legislation.”      Id. at 295, 435 S.E.2d at 388.

The same analysis applies in judicial review of a governing

body’s decision derived from an architectural review commission

action.

       The historical preservation area statute, Code § 15.2-

2306(3), limits judicial review of a governing body’s decision


       2
       Danville City Code Section 41-408 authorizes the initial
appeal of a commission action to city council.

                                     5
to whether that decision is “arbitrary and constitutes an abuse

of discretion,” or “is contrary to law,” similar to the

standards applied by the courts in reviewing zoning decisions

under Code § 15.2-2314.   As in University Square Associates,

Norton’s challenge to the underlying ordinance as ultra vires

and violative of the Dillon rule,3 is barred from consideration

in judicial review of the city council’s action concerning the

certificate of appropriateness.   Code § 15.2-2306(3), and the

derivative municipal ordinance, grant the trial court authority

to review the city council’s specific act under the ordinance,

not the validity of the ordinance itself.4   Therefore, we do not

consider Norton’s initial assignments of error because they are

beyond the scope of review authorized by Code § 15.2-2306.

   B. The City Council’s Actions as Arbitrary and Unreasonable

     Norton’s remaining assignment of error challenges the city

council’s action on the certificate of appropriateness as

“arbitrary and unreasonable.”   He contends his evidence showing

city council’s action was unreasonable was not met by evidence

     3
       The Dillon rule provides that municipal corporations
possess and can exercise only those powers expressly granted by
the General Assembly, those necessarily or fairly implied
therefrom, and those that are essential and indispensable. City
of Richmond v. Confrere Club of Richmond Virginia, Inc., 239 Va.
77, 79, 387 S.E.2d 471, 473 (1990).
     4
       If Norton wished to challenge the underlying ordinance, he
could have done so in a direct action against the city council.
University Square Associates, 246 Va. at 295 n.2, 435 S.E.2d at
388 n.2.

                                  6
of reasonableness by the city council so as to make the issue

fairly debatable.    Norton avers the trial court’s holding to the

contrary is reversible error.   For the reasons discussed below,

we agree with Norton.

     "When a governing body of any locality reserves unto itself

the right to issue special exceptions, the grant or denial of

such exceptions is a legislative function."   Board of

Supervisors v. McDonald's Corp., 261 Va. 583, 589, 544 S.E.2d

334, 338 (2001) (citing Cole v. City Council of Waynesboro, 218

Va. 827, 837, 241 S.E.2d 765, 771 (1978)).    Such legislative

actions are presumptively correct.    Id.; see also County of

Lancaster v. Cowardin, 239 Va. 522, 525, 391 S.E.2d 267, 269

(1990).   We have often acknowledged this presumption in cases

involving applications for “deviations” from zoning regulations.

See e.g., Board of Supervisors v. Robertson, 266 Va. 525, 532,

587 S.E.2d 570, 575 (2003); see generally Board of Supervisors

v. Stickley, 263 Va. 1, 556 S.E.2d 748 (2002).    The city

council’s legislative action regarding Norton’s application for

a certificate of appropriateness is analogous and subject to the

same presumption and standard of review.

     “Legislative action is reasonable if the matter in issue is

fairly debatable.”   Board of Supervisors v. Lerner, 221 Va. 30,

34, 267 S.E.2d 100, 102 (1980).   An issue may be said to be

"fairly debatable when the evidence offered in support of the


                                  7
opposing views would lead objective and reasonable persons to

reach different conclusions."   Board of Supervisors v. Williams,

216 Va. 49, 58, 216 S.E.2d 33, 40 (1975).    “The burden of proof

is on him who assails it to prove that it is clearly

unreasonable, arbitrary or capricious, and that it bears no

reasonable or substantial relation to the public health, safety,

morals, or general welfare.”    Turner v. Board of Supervisors,

263 Va. 283, 288, 559 S.E.2d 683, 686 (2002).

     As we stated in Board of Supervisors v. Snell Constr.

Corp., 214 Va. 655, 202 S.E.2d 889 (1974):

     Where presumptive reasonableness is challenged by
     probative evidence of unreasonableness, the
     challenge must be met by some evidence of
     reasonableness. If evidence of reasonableness is
     sufficient to make the question fairly debatable,
     the ordinance ‘must be sustained’. If not, the
     evidence of unreasonableness defeats the
     presumption of reasonableness and the ordinance
     cannot be sustained.

Id. at 659, 202 S.E.2d at 893; see also Board of Supervisors v.

Jackson, 221 Va. 328, 333, 269 S.E.2d 381, 385 (1980).

     As the applicant for a certificate of appropriateness,

Norton bore the burden of presenting evidence that the city

council’s actions were unreasonable.   If Norton presented such

evidence, the burden shifted to the city council to produce some

evidence that its actions were reasonable thereby rendering the

issue fairly debatable.   In this case, the city council failed

to meet its evidentiary burden.


                                  8
     Norton presented evidence to the trial court that many

other houses in the historic preservation district had glass

doors.   A house of similar Italianate style, the Sutherlin

mansion, directly across the street from Norton’s home, had a

wooden door facing Main Street but commercial glass doors on a

side entrance visible from a public street.   He also produced

evidence showing his home has three other glass doors, besides

the front door at issue, which are visible from the street.

     Norton called Gillie as a witness during the trial, who

testified as follows on direct examination:

           Q.   What evidence do you have to show that
                the initial door was all wood?
           A.   We have seen photos of the door that
                was all wood. I have seen the door
                personally and it was all wood.
           Q.   Well, when was the house built?
           A.   In the 1880s.
           Q.   1884?
           A.   Somewhere around that.
           Q.   So you weren’t around in 1884, you
                didn’t see the doors?
           A.   No, sir.
           Q.   When you say “initially,” you mean the
                way it was when you first saw it?
           A.   Yes.
           Q.   You don’t know what it was initially?
           A.   No.
           Q.   But you’re saying the reason that you
                eliminated the glass part was that
                initially it had wooden doors.
           A.   To the best of my knowledge, it had
                wooden doors.
           Q.   And that’s to your knowledge?
           A.   Yes.
           Q.   And you first saw it when?
           A.   1992.



                                 9
     Norton thus met his burden to show probative evidence of

unreasonableness in the city council’s action to compel him to

install a wooden door.   Norton’s evidence reflected that the

commission and the city council acted to compel him to install a

wooden door on the unsupported supposition such a door existed

in 1884, although no evidence directly established that the

house featured a wooden door before 1992.

     To meet Norton’s evidence of unreasonableness, the city

council was obligated to put forth some evidence of

reasonableness for its decision in order to carry its burden to

render the matter fairly debatable.   Despite this low

threshold, the city council failed to present evidence

demonstrating that its decision was reasonable.   This is due, in

large part, to the fact that the city council presented no

witnesses and offered no exhibits to demonstrate there was a

wooden door before 1992, such as demonstrative historical

photographs or similar items of evidence.

     No witness testified for the city council to verify how the

original nature of the door was determined.   Although Norton was

ordered to restore the door to its deemed original condition,

the commission and the city council admitted in their

proceedings that they did not know what type of door was on the

house when it was originally constructed.   Similarly, the city

council offered no explanation why its mandate that Norton’s


                                10
house have a wooden front door was reasonable, when other glass-

paned doors on the house are clearly viewable by the public.

     The city council did not meet Norton’s evidence that its

actions were unreasonable with evidence of reasonableness.   The

trial court thus erred in concluding the issue was fairly

debatable because the city council failed to meet its burden of

proof.   As a matter of law, the trial court could not conclude

the issue was fairly debatable because the city council adduced

no evidence of reasonableness.

                         III.    Conclusion

     For these reasons, we conclude the trial court could not in

this proceeding consider Norton’s challenges to the validity of

the Danville City ordinances.    We also conclude that the city

council failed to meet its evidentiary burden to demonstrate

that its actions were reasonable in affirming the commission’s

refusal to grant the certificate of appropriateness.

Accordingly, the trial court erred in holding the city council’s

action to be fairly debatable.    The judgment of the trial court

will be reversed and final judgment will be entered.

                                       Reversed and final judgment.




                                  11