Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Russell, S.J.

ALLFIRST TRUST COMPANY, N.A., et al.
                                        OPINION BY
v.   Record No. 032554      SENIOR JUSTICE CHARLES S. RUSSELL
                                    September 17, 2004
COUNTY OF LOUDOUN, et al.

          FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
       John E. Wetsel, Jr., Catherine C. Hammond, and
                 William L. Wellons, Judges

     This is an appeal from the final order of a special

three-judge annexation court dismissing a landowner-

initiated annexation proceeding then pending before the

Commission on Local Government (COLG).    The sole question

is whether the court correctly decided that the landowners’

notice of intent to petition for annexation, filed with the

COLG, failed to meet the statutory requirements for the

initiation of such a proceeding.

                            BACKGROUND

     In 1979, the General Assembly enacted a thorough

reform of the statutory framework governing annexation

proceedings, 1979 Acts, Ch. 85, now codified in Title 15.2,

Chapters 29-39 of the Code, as amended.   Code § 15.2-

3203(A) provides, in pertinent part, that 51% of the

“owners of real estate in number and land area in a

designated area” of any territory adjacent to a city or

town may petition the circuit court of the county for the
annexation of that territory to the city or town.   This

statute also requires that the petition set forth the metes

and bounds of the territory sought to be annexed.

     Code § 15.2-2907(A) provides, in pertinent part, that

no annexation proceeding shall be initiated in any court

until the petitioner shall have first given notice to the

COLG of its intention to bring such an action and the COLG

has held hearings, investigated the case, made findings of

fact and issued its final report.    The court hearing any

subsequent annexation action must consider the report of

the COLG but is not bound thereby.

     Code § 15.2-3002 provides for the appointment by this

Court of a panel of fifteen circuit judges for the purpose

of hearing annexation and similar cases.   Code § 15.2-3000

provides that this Court designate three judges from that

panel to hear any annexation or other case filed in a

circuit court arising under the provisions of Chapters 32-

36 and 38-41 of Title 15.2 of the Code.

                   FACTS AND PROCEEDINGS

     On July 6, 2001, Allfirst Trust Company, N.A. and D.C.

Welsh, Trustees, along with three other parties

(collectively, the Landowners), filed with the COLG a

notice of their “intent to petition for annexation of

unincorporated territory within Loudoun County, Virginia


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into the Town of Leesburg.”   The notice contained copies of

deeds to included parcels, with tax map references, but

failed to include a metes and bounds description of the

entire area sought to be annexed.

     On December 26, 2002, prior to any hearings before the

COLG, the County of Loudoun and its Board of Supervisors

(collectively, the County), filed a motion for declaratory

judgment in the circuit court, asserting that the

Landowners’ notice was fatally defective, seeking an

adjudication that the COLG lacked jurisdiction of the case

and praying for an injunction against any further

proceedings until the matter could be decided by a special

three-judge court.   This Court designated three judges from

the statutory panel as a special court to hear and decide

the case.   The special court set the case for hearing on

June 11, 2003.

     Before the hearing, on February 13, 2003, the

Landowners filed a second “notice of intent” with the COLG,

containing a metes and bounds description of the territory

sought to be annexed, but otherwise substantially the same

as the first.    On June 6, 2003, the Landowners filed a

third “notice of intent” with the COLG, deleting two

parcels of land and eliminating one landowner, but

otherwise substantially the same as the second.


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     The County argued before the special court that the

lack of a metes and bounds description in the original

notice was fatal and could not be remedied by subsequent

amendment.   The County further pointed out that the

territory sought to be annexed consisted of two non-

contiguous tracts of land “divided by a multiplicity of

parcels lying just south of the Leesburg Airport property

and generally on the east and west sides of Sycolin Road.”

     The County contended that in the proposed annexation

area west of Sycolin Road, four different landowners owned

the ten parcels that constituted that area, but that only

two of the four were petitioning for annexation, thus

falling short of the statutory requirement that 51% of the

“owners of real estate in number . . . in a designated

area” may initiate an annexation proceeding. Code § 15.2-

3203(A) (emphasis added).   As to the area east of Sycolin

Road, the County pointed out that petitioning landowners

owned only 42.8% of the total acreage in that area, while

the County itself, which opposed the annexation, owned the

remaining 57.2%.    Thus, the County argued, the petitioning

Landowners failed to meet the statutory requirement that

51% of the “owners of real estate in . . . land area in a

designated area” initiate an annexation proceeding.    Id.

(emphasis added).


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     The Landowners, by responsive pleadings, asserted that

they had recently filed a second “notice” with the COLG

which contained a metes and bounds description, but that in

any event the requirement for such a description applied

only to annexation petitions filed in court, not to

proceedings before the COLG.   The Landowners further argued

that there was no statutory requirement that a landowner’s

annexation proceeding be restricted to contiguous parcels

of land and that if the tracts east and west of Sycolin

Road were considered together as the “designated area,”

they had met the statutory 51% requirements as to both

number and land area.

     The parties submitted the case to the special court on

stipulated facts and exhibits, supported by briefs and

arguments of counsel.   On June 11, 2003, the special court

issued a letter opinion ruling that the Landowners’

“initial filing did not substantially comply with the

statutory requirement for a metes and bounds description,

which defect could not be cured by subsequent filings” and

that the Landowners had further failed to meet the “51%

statutory requirements in each of the two separate areas

proposed to be annexed.”   The court entered a final order

dismissing the proceedings before the COLG and directing




                               5
the COLG “to terminate all review of the same.”    We awarded

the Landowners an appeal.

                            ANALYSIS

     Annexation proceedings are typically complex,

protracted and expensive to the governing bodies involved,

imposing a heavy fiscal burden upon taxpayers.    The

statutory revisions of 1979 addressed the problem in part

by the creation of the COLG, an impartial expert body, to

assist the courts.   Proceedings before the COLG, however,

add an additional step to the process, which necessarily

adds to its expense.   It is therefore imperative that a

special court promptly resolve any attack on the

jurisdiction of the COLG before such an expense is incurred

“all for naught.”    Bedford County v. City of Bedford, 243

Va. 330, 335, 414 S.E.2d 838, 841 (1992) (quoting King v.

Hening, 203 Va. 582, 586, 125 S.E.2d 827, 830 (1962).

     The County argued, and the special court agreed, that

the requirement of a metes and bounds description is

jurisdictional and was fixed at the time of the Landowners’

initial COLG filing, and could not be cured by amendment or

subsequent filings with the COLG, citing Code § 15.2-2908:

     An action or proceeding to which the Commission on
     Local Government has jurisdiction shall be deemed to
     have been instituted upon the initial notice to the
     Commission required by subsection A of § 15.2-2907.



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The County further relies on City of Roanoke v. Roanoke

County, 214 Va. 216, 198 S.E.2d 780 (1973) and City of

Charlottesville v. Albemarle County, 214 Va. 365, 200

S.E.2d 551 (1973), where we held that the jurisdictional

sufficiency of an annexation petition must be determined as

it stood on the date of its initial filing in court.

     Those cases, however, were decided before the

statutory revisions of 1979, which provided for

administrative proceedings before the COLG as a

prerequisite to annexation actions in court.   Although

those cases continue to apply to judicial proceedings, the

COLG is empowered by Code § 15.2-2903(1) “[t]o make

regulations, including rules of procedure for the

conducting of hearings.”   The rules adopted by the COLG

pursuant to that authority are more permissive:

     Any party giving notice to the commission of a
     proposed action . . . may submit with such notice as
     much data, exhibits, documents, or other supporting
     materials as it deems appropriate; however, such
     submissions should be fully responsive to all relevant
     elements of the applicable section of Part IV (1 VAC
     50-20-540 et seq.)

1 VAC § 50-20-190 (emphasis added).

     Section 50-20-540 of Title 1 of the Virginia

Administrative Code, referred to in the foregoing

regulation, requires a city or town to file with its notice

of proposed annexation a “written metes and bounds


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description of the boundaries of the proposed city having,

as a minimum, sufficient certainty to enable a layman to

identify the proposed new boundary.”   Neither the statutes

nor the COLG’s regulations require that a landowner’s

initial notice to the COLG contain a metes and bounds

description as a jurisdictional prerequisite.

     The County correctly argues that it would be

difficult, if not impossible, to ascertain whether the

Landowners met the statutory 51% requirements in the absence

of an adequate metes and bounds description, but the COLG

can, and did in this case, provide a remedy for that problem

under its rules.   Section 50-20-450 of Title 1 of the

Virginia Administrative Code permits an applicant, with

permission of the COLG, to supplement its initial filing

with additional materials.   The COLG took no action in this

case before the Landowners, having sought and obtained such

permission, had filed a metes and bounds description.

     We conclude that the special court erred in applying

to proceedings before the COLG the rules concerning a metes

and bounds description that would apply to an annexation

petition filed in court.   Nevertheless, because of the

conclusion we reach with respect to the 51% requirements,

the error was harmless.




                               8
     The dispositive question before us is whether

landowners may initiate an annexation proceeding under Code

§ 15.2-3203 by combining non-contiguous tracts of land,

without meeting the statutory requirement that they

constitute 51% of the owners of real estate “in number and

land area” within each separate tract sought to be annexed.

We conclude that they may not.

     We held, in Norfolk County v. City of Portsmouth, 186

Va. 1032, 1049-50, 45 S.E.2d 136, 144 (1947) that where a

city annexes non-contiguous tracts of suburban land, they

all become a part of the newly-constituted city and their

lack of contiguity is immaterial.    We further observed, in

that case, that the opposition of the majority of the

residents of the area sought to be annexed was immaterial

because the desirability of annexation was to be determined

from the standpoint of the needs of the area for urban

government, rather than the wishes of individual residents.

     By contrast, the General Assembly has provided a very

different design for annexation proceedings initiated by

landowners.   Code § 15.2-3203(A) allows such proceedings

only where they are initiated by “fifty-one percent of the

owners of real estate in number and land area in a

designated area.”   This language is plain and unambiguous.

Its obvious purpose is to ensure that the annexation is


                                 9
favored by the majority of the landowners, in both numbers

and acreage, in the area affected by it.   An equally

important purpose of the statutory language, as we construe

it, is to ensure that a non-contiguous area, in which the

majority may oppose the annexation, is not swept into it by

the sheer force of numbers in the area in which it is

favored.    Significantly, Code § 15.2-3203(A) explicitly

provides that in cases brought under it, “the special court

shall not increase the area of the territory described in

the petition,” while the court, in a city-initiated

proceeding, “may include a greater or smaller area than that

described in the ordinance or petition.”   Code § 15.2-

3211(1).

                           CONCLUSION

     We conclude that where landowners seek to initiate

annexation proceedings under Code § 15.2-3203 that include

non-contiguous territories, they must constitute 51% of the

“owners of real estate in number and land area” within each

separate territory.   That requirement is jurisdictional, and

if it is not met, the COLG has no authority to proceed with

the case.   Because the special court correctly so ruled, we

will affirm its final order.

                                                             Affirmed.




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