Committee of v. City of Norfolk

• Court: Supreme Court of Virginia
• Decided: June 8, 2007
• Docket: 061329
• Status: Published

Opinion

Present: All the Justices

COMMITTEE OF THE PETITIONERS FOR REFERENDUM, BY WILLIAM S. KERRY, AND OTHERS

v. Record No. 061329 OPINION BY JUSTICE ELIZABETH B. LACY June 8, 2007 CITY OF NORFOLK, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Alfred W. Swersky, Judge

In this appeal we consider whether the circuit court

erred in holding that a petition filed in a referendum process

did not comply with the requirements of that process and in

allowing certain parties to intervene and challenge the

validity of the petition.

Facts and Proceedings

Since the 1980s, the City of Norfolk has targeted the

Ocean View area for revitalization. As part of that effort,

on July 19, 2005, the Norfolk City Council adopted four

related ordinances affecting 17 acres of land owned by the

Norfolk Redevelopment and Housing Authority (NRHA) and 3

privately owned acres (the Property). The first, Ordinance

No. 41,934, closed a portion of 4th Bay Street that runs

directly through the Property. The second, Ordinance No.

41,935, amended the City's zoning ordinance to include a new

planned development district designed specifically for the

Property. The third, Ordinance No. 41,936, mandated certain open space and public area and facility requirements. The

fourth, Ordinance No. 41,937, rezoned the property from R-12

(medium-density residential) and IN-1 (institutional) to the

new planned development zoning category created via Ordinance

No. 41,935. Under the ordinances, only single-family

dwellings and town homes would be constructed and at least

one-half of the Property would be dedicated as open space.

A number of Norfolk residents opposed the development of

the Property as a planned residential community. The

residents decided to utilize the referendum process set out in

the Norfolk City Charter to repeal the ordinances by popular

vote. The referendum process required that the residents file

documents announcing their intent to circulate the petition

necessary to place the matter on the referendum ballot, secure

a specified number of signatures for that petition, and

present the petition to the City Council. Norfolk City

Charter § 35. If the City Council did not repeal the

ordinances within 30 days, the residents were required to

request that the petition be sent to the circuit court for

entry of an order placing the question on the ballot and

setting the election date. Norfolk City Charter § 36.

The residents formed "The 'Bay Oaks Parks' Committee of

the Petitioners" (the Committee) and filed an amended notice

of intent to circulate and file a referendum petition (the

2 Petition) on July 25, 2005. The Petition stated that it was a

petition "to repeal Ordinance No. 41,934, Ordinance No.

41,935, Ordinance No. 41,936, and Ordinance No. 41,937 adopted

on July 19, 2005." The Committee filed the Petition with the

clerk of the City of Norfolk on August 18, 2005. The City

Council did not repeal the ordinances within thirty days and,

at the Committee's request, the Petition was sent to the Clerk

of the Circuit Court of the City of Norfolk on September 20,

2005. After the Clerk of the Court certified that the

Petition contained the requisite number of signatures of

qualified voters, the Committee then presented the Petition to

the Circuit Court.

The City and NRHA each filed a motion to intervene, which

the circuit court granted over the Committee's objections.

The matter was set for an evidentiary hearing on February 23,

2006. At that hearing, the circuit court dismissed the claim

raised by the City and NRHA that the Petition was invalid

because the Committee used false and misleading statements and

promotional materials in the circulation process but held, as

a matter of law, that the Petition was invalid because it

presented all four ordinances in a single petition. The

circuit court entered a final order declining to set a

referendum election and dismissing the Petition with

prejudice.

3 The Committee filed a timely appeal to this Court

asserting the circuit court erred in 1) granting the City and

NRHA leave to intervene; 2) finding that the Petition was

legally defective because the Petition sought repeal of four

related Ordinances in a single petition instead of listing

each of the four challenged ordinances in a separate petition;

and 3) granting summary judgment for the City and NRHA sua

sponte. We granted the Committee an appeal.

Discussion

I. Motion to Intervene

We first address the Committee's assertion that the

circuit court erred in granting the City's and NRHA's motions

to intervene. The Committee claims the motions to intervene

were untimely because they were not filed until nearly two

months after the City received notice that the Petition was to

be circulated and over one month after the completed Petition

was officially presented to the City Council.

We apply an abuse of discretion standard when reviewing a

circuit court's decision to grant a motion to intervene. See

Hudson v. Jarrett, 269 Va. 24, 33, 606 S.E.2d 827, 831 (2005)

(granting motion to intervene is within discretion of court

but intervenor must meet requirements for intervention). The

Committee does not question the interests of the City and NRHA

in the subject matter of these proceedings; its challenge is

4 limited solely to the timeliness of the intervention. The

circuit court found the interventions timely "since at any

time prior to the City Council's completion of the

reconsideration mandated by law, the issue could have been

made moot and . . . there are no statutory, charter, or

constitutional provisions requiring earlier filing."

The circuit court's rationale reflects a reasoned

evaluation of the circumstances. The fact that the City or

NRHA could have brought its objections to the Petition to the

attention of the Committee at some earlier time is not

relevant to whether the intervention in circuit court was

timely. Accordingly, we hold that the circuit court did not

abuse its discretion in granting the motion to intervene.

II. Petition for Referendum

"A referendum is 'an exercise by the voters of their

traditional right through direct legislation to override the

view of their elected representatives as to what serves the

public interest.' " R.G. Moore Bldg. Corp. v. Committee for

the Repeal of Ordinance R(C)-88-13, 239 Va. 484, 489, 391

S.E.2d 587, 589 (1990) (quoting City of Eastlake v. Forest

City Enters., Inc., 426 U.S. 668, 678 (1976)). The referendum

process "is a means for direct political participation,

allowing the people the final decision, amounting to a veto

5 power, over enactments of representative bodies." Id.

(quoting City of Eastlake, 426 U.S. at 673).

Petitions for initiating the referenda process are the

subject of § 35 of the City Charter. That section states that

a petition does not have to contain the text of the "ordinance

or ordinances" sought to be repealed. Norfolk City Charter

§ 35. This language implies but does not specifically address

whether a single petition may be submitted for the repeal of

more than one ordinance.

In the absence of clear legislative direction on this

issue, the City and NRHA argue, and the circuit court agreed,

that because a referendum is "legislative in nature and

effect," Collins v. City of Norfolk, 244 Va. 431, 434, 422

S.E.2d 782, 783 (1992), the petition is subject to the same

restrictions that apply to a City ordinance. One of those

requirements is that City ordinances "shall be confined to one

subject." Norfolk City Charter § 14.1. Applying this

section, the City contends that the circuit court was correct

in concluding that because the four ordinances contained in

the Petition could not be considered in a single ordinance,

they likewise could not be combined in a single petition for

referendum, and therefore, the Petition was invalid. We

disagree with this analysis.

6 First, nothing in the City Charter indicates that the

provisions applicable to City ordinances are also applicable

to a petition for referendum. Furthermore, the City and NRHA

equate the petition for referendum with the referendum itself.

However, the petition is the mechanism for placing the issue

before the electorate; the referendum is the vote of the

electorate. More importantly, nothing in the Petition

precludes a separate vote on each of the ordinances referenced

in the Petition.

The Committee contended at trial and reiterated here that

the Petition only ensures the placement of the ordinances on

the ballot and that each ordinance could be voted upon

independently. Code § 24.2-684 specifically states that

"[t]he court order calling a referendum shall state the

question to appear on the ballot." This provision does not

reference the petition and, contrary to the argument of the

City and NRHA, the language of the Petition reciting the

ordinances in the conjunctive, does not require the circuit

court to structure the ballot to require a single vote on the

combined ordinances.

The Committee's Petition complied with all stated

requirements of the City Charter and the Code. The Petition

was not invalid because it listed multiple ordinances and the

Committee was not required to circulate a separate petition

7 for each of the four challenged ordinances. Accordingly, the

circuit court erred in finding the Petition invalid and in

declining to certify and order the referendum requested by the

Committee.*

In summary, we will affirm that portion of the judgment

of the circuit court allowing the City and NRHA to intervene.

We will reverse that portion of the judgment holding that the

Petition was invalid, and remand the case for further

proceedings.

Affirmed in part, reversed in part, and remanded.

* In light of this holding, we need not address whether the circuit court improperly granted summary judgment for the City and NRHA.