Can a Virginia town council member or sitting member of a town historic review board or building code appeals board also serve on the town's wetlands board?

Plain-English summary

The Town of Cape Charles needed to staff its wetlands board, but Virginia's wetlands statute (§ 28.2-1303(A)) contains a clause that limits who can serve: members "shall hold no public office in the county or city" except for specifically enumerated local commissions like the planning commission, zoning commission, and a few others. Cape Charles, a town in Northampton County, asked Delegate Lynwood Lewis to find out whether that prohibition extended to town officials too, or only to county and city officials.

Attorney General Bob McDonnell read the statute literally: it says "county or city," not "town." The General Assembly's word choice was deliberate. Towns, in Virginia local-government law, are legally distinct from counties and cities; they have their own subset of authorities, and when a statute excludes them from a prohibition, it's not a typo. So town council members and sitting members of other town boards (historic review board, building code appeals board) may also serve on the town wetlands board.

The opinion is a tight piece of statutory construction. The AG cites Virginia Supreme Court cases for the rule that an omission from a statute, especially when the omitted item is named elsewhere in related provisions, is a deliberate legislative choice. Section 28.2-1303(A) named "county or city" and omitted "town"; the omission means towns are not subject to the rule.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Section 28.2-1303 has been amended since 2008, and anyone in a current Virginia wetlands board appointment dispute should consult the current statute.

Background and statutory framework

Chapter 13 of Title 28.2 (§§ 28.2-1300 through 28.2-1320) governs the state's wetlands protection regime. Any county, city, or town that enacts a local wetlands zoning ordinance must create a wetlands board to administer the ordinance. Section 28.2-1303(A) prescribes the board's composition: five or seven residents of the jurisdiction, appointed by the local governing body for five-year staggered terms.

The dual-office restriction in § 28.2-1303(A) reads: "Members of the board shall hold no public office in the county or city other than membership on the local planning or zoning commission, the local erosion commission, the local board of zoning appeals, a board established by a local government to hear cases regarding ordinances adopted pursuant to the Chesapeake Bay Preservation Act and regulations promulgated thereunder, or as director of a soil and water conservation board."

Notice the structure: a prohibition on holding "public office in the county or city," followed by a list of specific board memberships that are excepted from the prohibition (so a wetlands board member can also sit on the planning commission, for instance). The whole sentence is about counties and cities. Towns are not mentioned.

That structural choice is the AG's hook. He relies on the well-known canon that when the legislature names some items in a list and omits another item of the same nature, the omission is treated as deliberate. Williams v. Matthews and Va. Beach v. Va. Rest. Ass'n are the canonical Virginia citations on point.

What the AG concluded, point by point

The text excludes only "county or city" public officials. Section 28.2-1303(A) says wetlands board members shall hold no public office "in the county or city" with the listed exceptions. The plain language does not reach town public officials.

The omission of "town" is significant. Citing Williams v. Matthews and Va. Beach v. Va. Rest. Ass'n, the AG reads the omission as a deliberate legislative choice to leave towns unaffected by the dual-office bar. Virginia local-government law treats counties, cities, and towns as legally distinct categories.

Town public office holders may serve on the town wetlands board. A town council member, mayor, or other town public official may be appointed to the town's wetlands board.

Town board members may also serve. The town's historic review board and board of building code appeals are town boards, not county or city boards. Their members may serve on the town wetlands board.

What this meant at the time

For Town of Cape Charles and similar Virginia towns (as of 2008)

You had statutory clearance to draw wetlands board members from your sitting town officials and existing town boards. This was practically important for small towns, where the pool of qualified, interested volunteers is often limited and where the same engaged citizens often serve on multiple boards.

For counties and cities (as of 2008)

This opinion confirms the inverse: § 28.2-1303(A)'s prohibition does apply to you. Wetlands board members in counties and cities may not hold other public office in the county or city except for the specifically listed boards (planning, zoning, BZA, Chesapeake Bay Preservation board, soil and water conservation director).

For municipal attorneys generally (as of 2008)

The opinion is a clean illustration of the legislative-omission canon in Virginia. The same logic applies in other statutes where "county or city" or "county, city, and town" language is used: small differences in phrasing translate into substantive scope differences.

Common questions

Q: Why does Virginia treat counties, cities, and towns differently?
A: Virginia has a hierarchical local-government structure. Cities are independent of counties; counties cover the rest of the state. Towns sit inside counties and have a more limited set of statutory powers. The General Assembly often legislates with one or two categories in mind, not all three.

Q: What if my town and county both have wetlands boards?
A: This opinion addresses town wetlands boards specifically. The county would have its own wetlands board, and the dual-office rule applies to that one with respect to county/city public office. A person could theoretically serve on the town wetlands board while also being a town council member, but not a county supervisor.

Q: Is there any practical concern about dual service even where it's legal?
A: Yes. Even if legally permissible, simultaneous service on multiple boards can create recusal headaches, conflicts of interest, or political optics issues. Boards that frequently consider matters together (planning and zoning, for instance) may need conflict-of-interest protocols.

Q: What about state-level office-holders?
A: The opinion does not address state office, only local. Anyone in dual state/local service should check the Conflicts of Interest Act and other generally applicable rules.

Citations and references

Statutes:

• Va. Code Ann. § 2.2-505
• Va. Code Ann. §§ 28.2-1300 through 28.2-1320 (wetlands)
• Va. Code Ann. § 28.2-1303

Cases:

• Williams v. Matthews, 248 Va. 277 (1994), significance of statutory omission
• Va. Beach v. Va. Rest. Ass'n, 231 Va. 130 (1986), word omission shows different intent
• Marsh v. City of Richmond, 234 Va. 4 (1987), plain-meaning rule
• Commonwealth v. County Bd., 217 Va. 558 (1977), respecting legislative intent
• Lincoln Nat'l Life Ins. Co. v. Commonwealth Corrugated Container Corp., 229 Va. 132 (1985), ambiguity standard
• Brown v. Lukhard, 229 Va. 316 (1985), no need for construction if statute clear
• Va. Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97 (1987)
• Ambrogi v. Koontz, 224 Va. 381 (1982)
• Gillespie v. Commonwealth, 272 Va. 753 (2006)
• Lynch v. Commonwealth Transp. Comm'r, 255 Va. 227 (1998)
• Sch. Bd. v. Sch. Bd., 219 Va. 244 (1978)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-087-Lewis.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell, Attorney General

December 8, 2008

The Honorable Lynwood W. Lewis, Jr.
Member, House of Delegates

Dear Delegate Lewis:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether individuals holding public offices in a town may be appointed to serve on that town's wetlands board created pursuant to a wetlands zoning ordinance under Chapter 13 of Title 28.1. You specifically ask whether an individual serving on a historic review board or board of building code appeals may be appointed to such wetlands board.

Response

It is my opinion that individuals holding public offices in a town may be appointed to serve on that town's wetlands board, which was created pursuant to a wetlands zoning ordinance under Chapter 13 of Title 28.1. It further is my opinion that an individual serving on a town board of historic review or board of building code appeals may be appointed to the town's wetlands board.

Applicable Law and Discussion

You advise that the Town of Cape Charles has requested that you inquire about appointments of persons to the Cape Charles Wetlands Board. Specifically, you ask whether persons serving in public offices in the town and persons who serve on the town's historic review board or board of building code appeals may be appointed to the Wetlands Board.

Chapter 13 of Title 28.2, §§ 28.2-1300 through 28.2-1320 ("Chapter 13"), governs wetlands within the Commonwealth. Section 28.2-1303(A) provides, in part, that:

Every county, city, or town that enacts a wetlands zoning ordinance pursuant to [Chapter 13] shall create a wetlands board, consisting of five or seven residents of that jurisdiction appointed by the local governing body. All board members' terms shall be for five years, except that the term of at least one of the original appointments shall expire during each of the succeeding five years. The chairman of the board shall notify the local governing body at least 30 days prior to the expiration of any member's term and shall promptly notify the local governing body if any vacancy occurs. Vacancies shall be filled by the local governing body without delay upon receipt of such notice. Appointments to fill vacancies shall be for the unexpired portion of the term. Members may serve successive terms. A member whose term expires shall continue to serve until his successor is appointed and qualified. Members of the board shall hold no public office in the county or city other than membership on the local planning or zoning commission, the local erosion commission, the local board of zoning appeals, a board established by a local government to hear cases regarding ordinances adopted pursuant to the Chesapeake Bay Preservation Act and regulations promulgated thereunder, or as director of a soil and water conservation board.[1] When members of these local commissions or boards are appointed to a local wetlands board, their terms of appointment shall be coterminous with their membership on those boards or commissions.

Legislative intent is determined from the plain meaning of the words used.[2] Furthermore, "when legislative intent is plain," One is required "to respect it and give it effect."[3] Language is only ambiguous if it admits of being understood in more than one way or refers to two or more things simultaneously.[4] "If language is clear and unambiguous, there is no need for construction …; the plain meaning and intent of the [statute] will be given it."[5]

Section 28.2-1303(A) plainly directs that "[e]very county, city, or town that enacts a wetlands zoning ordinance pursuant to [Chapter 13] shall create a wetlands board." The portion of § 28.2-1303(A) about which you inquire clearly provides that members of the wetlands board "shall hold no public office in the county or city." The omission of towns from the prohibition contained in this sentence is significant and demonstrates a legislative intent to exclude towns from the operation of this specific prohibition.[6] Accordingly, I conclude that individuals holding public offices in towns may be appointed to serve on a wetlands board enacted pursuant to Chapter 13. For the same reasons, I conclude that individuals who serve on a town board, such as the historic review board or the board of building code appeals, may be appointed to serve on a wetlands board.

Conclusion

Accordingly, it is my opinion that individuals holding public offices in a town may be appointed to serve on that town's wetlands board, which was created pursuant to a wetlands zoning ordinance under Chapter 13 of Title 28.1. It further is my opinion that an individual serving on a town board of historic review or board of building code appeals may be appointed to the town's wetlands board.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. You advise that your inquiries arise from this emphasized portion of § 28.2-1303(A).

2. Marsh v. City of Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987); Va. Dept. of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 99, 353 S.E.2d 758, 760-61 (1987); Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982).

3. Commonwealth v. County Bd., 217 Va. 558, 579, 232 S.E.2d 30, 43 (1977).

4. Lincoln Nat'l Life Ins. Co. v. Commonwealth Corrugated Container Corp., 229 Va. 132, 136-37, 327 S.E.2d 98, 101 (1985); see also Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) ("An ambiguity exists when the language is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness.").

5. Brown, 229 Va. at 321, 330 S.E.2d at 87 (1985); accord Gillespie v. Commonwealth, 272 Va. 753, 757-58, 636 S.E.2d 430, 432 (2006); Lynch v. Commonwealth Transp. Comm'r, 255 Va. 227, 231, 495 S.E.2d 247, 249 (1998); Sch. Bd. v. Sch. Bd., 219 Va. 244, 250, 247 S.E.2d 380, 384 (1978).

6. See, e.g., Williams v. Matthews, 248 Va. 277, 284, 448 S.E.2d 625, 629 (1994) (noting that when statute contains provision with reference to one subject, omission of such provision is significant to show different legislative intent); Va. Beach v. Va. Rest. Ass'n, 231 Va. 130, 134, 341 S.E.2d 198, 200 (1986) (finding that omission of word "tax" in statute prohibiting certain actions was significant when word "tax" was used in other parts of act).