Does Virginia's industrial development authority statute let a county-level IDA finance subsidized single-family housing, even though the statute's purpose paragraph only mentions 'municipalities'?

Plain-English summary

Virginia's industrial development authority law (the Industrial Development and Revenue Bond Act) lets localities create IDAs to finance economic development. The Pulaski County IDA wanted to use IDA authority for subsidized single-family housing. The County Attorney asked the AG whether § 15.2-4901, which describes the legislative purpose and refers to "industrial development authorities created by one or more municipalities," extends that authority to a county-created IDA.

The literal reading of § 15.2-4901 would say no, because Virginia statutory definitions limit "municipality" to cities and towns (§ 15.2-102). The Pulaski County Attorney pressed the AG on that point.

Acting AG William Mims worked through the statute and reached a different answer. Two provisions sit in tension. Section 15.2-4901 states the General Assembly's purpose using "municipalities." Section 15.2-4902 defines "authority facilities" to include "facilities used primarily for single or multi-family residences" with the limitation that the clause "applies only to industrial development authorities created by one or more localities whose housing authorities have not been activated as provided by §§ 36-4 and 36-4.1." The word "localities," as defined in § 15.2-102, means counties, cities, or towns.

The amendment history resolves the conflict. The original 1997 versions of both sections used "municipality." The 2006 General Assembly amended § 15.2-4902(xiii) to substitute "localities" for "municipalities." It did not amend the parallel language in § 15.2-4901. Under the Virginia rule that the most recent expression of legislative intent controls when statutes conflict, the 2006 amendment to § 15.2-4902 governs. So county-created IDAs (where the county's housing authority is not activated under §§ 36-4 and 36-4.1) may finance facilities used primarily for single or multi-family residences.

The AG also flagged the limit in § 15.2-4905(13): no IDA "shall have the power to operate any single or multi-family housing facilities." So the Pulaski County IDA may finance such facilities (issue bonds, lease, convey them), but it may not operate them. Operation is the housing authority's job, but only one of those exists at a time per locality (the IDA's housing authority must be inactive for the IDA's housing financing power to attach).

Currency note

This opinion was issued in 2009. 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.

Background and statutory framework

The Industrial Development and Revenue Bond Act (§§ 15.2-4900 to 15.2-4920) authorizes localities to create IDAs to promote industry and develop trade. IDAs primarily issue revenue bonds, acquire and lease "authority facilities," and otherwise support development. The Act's powers are tightly tied to a list of permissible facilities in § 15.2-4902 (the definition of "authority facilities").

Section 15.2-4901 contains the statement of legislative purpose and policy. Among the purposes is granting IDAs "created by one or more municipalities whose housing authorities have not been activated as provided by §§ 36-4 and 36-4.1 ... the powers contained herein with respect to facilities used primarily for single or multi-family residences in order to promote safe and affordable housing." The language uses "municipalities" specifically.

Section 15.2-4902 defines the operative term "authority facilities" or "facilities," with clause (xiii) covering "facilities used primarily for single or multi-family residences" and limiting that clause to IDAs "created by one or more localities" whose housing authorities have not been activated. The 2006 amendment is what made the localities/municipalities distinction matter. The AG's "most recent expression controls" reasoning resolves the conflict in favor of the broader "localities."

Section 36-4 sets up the framework for creating local housing authorities by referendum (§ 36-4.1). Many Virginia counties have not activated a housing authority. The IDA's housing financing power applies in exactly those localities where the housing authority is inactive, preserving a financing pathway for housing without overlapping with the housing authority's operating role.

The opinion also raises the canon expressio unius est exclusio alterius implicitly: when the General Assembly amended one section to add "localities" and did not amend the parallel section, that choice could be read as deliberate. But the AG chose the more-recent-controls rule because it produces a coherent answer that gives effect to the actual 2006 statutory change.

Common questions

Can the Pulaski County IDA actually own and operate a subsidized housing development?

It can finance and acquire title, but it cannot operate. Section 15.2-4905(13) explicitly withholds the power "to operate any single or multi-family housing facilities" from all IDAs. So the typical IDA role here is acquisition and lease (or conveyance) of the facility, while operation is undertaken by another entity, often a private operator or a housing authority where one is activated.

What if Pulaski County activates its housing authority later?

The opinion suggests that activation would end the IDA's housing-financing power for the facilities, because § 15.2-4902(xiii) is keyed to localities "whose housing authorities have not been activated." Existing transactions might be grandfathered, but new IDA-led housing financing would have to be reconsidered.

Why didn't the AG read § 15.2-4901's 'municipalities' as limiting authority to cities and towns?

Because of the 2006 amendment to § 15.2-4902. When the more-recent amendment broadened "municipalities" to "localities" in the definitional and operative provision, the AG concluded that the broader definition controlled even though the policy statement in § 15.2-4901 was not similarly updated. The opinion treats the policy section as expressing the General Assembly's older drafting; the substantive granting language carries the more recent intent.

Does this opinion let any county-level IDA finance housing?

Only if the county's housing authority has not been activated under §§ 36-4 and 36-4.1. That condition is part of the statutory hook. The opinion is also explicit that operation of the housing facility is barred to the IDA in any case.

Is 'subsidized' a different statutory category than ordinary housing?

The statute does not use the term "subsidized" as a defined classification. The opinion's headline reference to "subsidized single family housing facilities" tracks the Pulaski County request. The actual statutory hook is "facilities used primarily for single or multi-family residences."

Citations

• Va. Code Ann. § 15.2-102 (definitions of "town," "municipality," "locality")
• Va. Code Ann. §§ 15.2-4900 to 15.2-4920 (Industrial Development and Revenue Bond Act)
• Va. Code Ann. § 15.2-4901 (purpose, mentioning "municipalities")
• Va. Code Ann. § 15.2-4902(xiii) (post-2006 amendment using "localities")
• Va. Code Ann. § 15.2-4905(13) (no IDA power to operate single/multi-family housing)
• Va. Code Ann. §§ 36-4, 36-4.1 (housing authority creation by referendum)
• 2006 Va. Acts ch. 324 (substituting "localities" for "municipalities" in § 15.2-4902)
• Petersburg v. Gen. Baking Co., 170 Va. 303, 196 S.E. 597 (1938) (latest expression of legislative intent controls)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-058-McCarthey.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

September 21, 2009

Thomas J. McCarthy, Jr., Esq.
Pulaski County Attorney
P.O. Box 878
Pulaski, Virginia 24301

Dear Mr. McCarthy:

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

Issue Presented

You ask whether § 15.2-4901, which relates in part to subsidized single family housing facilities, is applicable to the Industrial Development Authority of Pulaski County.

Response

It is my opinion that § 15.2-4901, as it relates to subsidized single family housing facilities, is applicable to the Industrial Development Authority of Pulaski County.

Background

You advise that the Industrial Development Authority of Pulaski County (the "Authority") seeks guidance regarding enabling legislation for the Authority related to subsidized single family housing facilities. You observe that § 15.2-4901 authorizes the Commonwealth to grant certain powers to industrial development authorities created by municipalities regarding facilities used primarily for single or multi-family residences. You advise that Pulaski County is not a municipality; it is a county. Further, you note that § 15.2-4902 refers to "authority facilities" or "facilities" and to "localities" without defining the term "localities." Finally, you observe that § 15.2-4905(13) provides that an authority "shall not have the power to operate any single or multi-family housing facilities."

Therefore, you conclude that the powers related to single or multi-family housing facilities have not been granted to county industrial development authorities. You believe that if the General Assembly had intended for such powers to be granted, it would have granted the authority to "municipalities and counties."[1]

Applicable Law and Discussion

Industrial development authorities are created under the Industrial Development and Revenue Bond Act (the "Act").[2] The General Assembly has expressed its intent, by authorizing the creation of industrial development authorities, "that such authorities may acquire, own, lease, and dispose of properties and make loans"[3] in furtherance of specific purposes. The purposes for an industrial development authority include the promotion of industry and the development of trade.[4] In § 15.2-4901, the General Assembly set forth an additional purpose "to grant to industrial development authorities created by one or more municipalities whose housing authorities have not been activated as provided by §§ 36-4 and 36-4.1[5] ... the powers contained herein with respect to facilities used primarily for single or multi-family residences in order to promote safe and affordable housing." Section 15.2-102 defines certain terms, as used in Title 15.2, "unless [the definition] would be inconsistent with the context or manifest intent" of a particular statute in Title 15.2. The definition of the term "municipality" and "words or terms of similar import shall be construed to relate only to cities and towns."[6] Because § 15.2-4901 and the Act do not define the term "municipalities," the definition of "municipality" contained in § 15.2-102 must be applied.[7]

Furthermore, § 15.2-4905 of the Act grants to authorities certain powers "together with all powers incidental thereto or necessary for the performance" of the powers expressed in the Act. An industrial development authority has the power to acquire, to improve or equip, to lease, and to convey "authority facilities."[8] Section 15.2-4902(xiii) defines "authority facilities" to include "facilities used primarily for single or multi-family residences." However, "[c]lause (xiii) applies only to industrial development authorities created by one or more localities whose housing authorities have not been activated as provided by §§ 36-4 and 36-4.1."[9] Neither § 15.2-4902, nor the Act, defines the term "localities." Thus, as discussed in the analysis regarding "municipalities," the definition of "locality" in § 15.2-102 would apply. In § 15.2-102, the General Assembly requires that the term "locality" or "local government" "shall be construed to mean a county, city, or town as the context may require."

Clearly, § 15.2-4901, which expresses the intent of the General Assembly to grant industrial development authorities created by a municipalities the powers contained in the Act related to facilities with a primary use as single or multi-family residences, is in direct conflict with the definition of the term "authority facilities" or "facilities" in § 15.2-4902. In § 15.2-4901, the General Assembly limits the grant of power to industrial development authorities regarding facilities used primarily for single or multi-family residences to the authorities of cities and towns. However, the definition of "authority facilities" or "facilities" in § 15.2-4902 grants such power to the industrial development authorities of counties, cities, or towns.

The primary goal of statutory interpretation is to ascertain and give effect to the intent of the General Assembly.[10] When the language of a statute is plain and unambiguous and its meaning is clear and definite, it must be given effect.[11] When resolving an apparent conflict between two statutes, the applicable rule of statutory construction is that the most recently enacted expression of legislative intent controls.[12] In this instance, both §§ 15.2-4901 and 15.2-4902 were amended by the 1997 Session of the General Assembly.[13] However, the 2006 Session of the General Assembly (the "2006 Amendment") further amended the definition of "authority facilities" or "facilities" in § 15.2-4902 to provide that:

"Authority facilities" or "facilities" means any or all ... (xiii) facilities used primarily for single or multi-family residences. Clause (xiii) applies only to industrial development authorities created by one or more municipalities localities whose housing authorities have not been activated as provided by §§ 36-4 and 36-4.1.[14]

The 2006 Amendment did not expressly amend the intent of the legislature contained in § 15.2-4901; however, the 2006 Amendment is the most recent enactment by the General Assembly concerning the Act related to facilities used primarily as single or multi-family residences. Thus, the 2006 Amendment must control in determining the General Assembly's intent related to the powers of industrial development authorities regarding such facilities. Based on the principles of statutory construction, I am required to apply the changes in the 2006 Amendment to the definition of "authority facilities" or "facilities," which now includes facilities used primarily for single or multi-family residences created by one or more "localities," as defined in § 15.2-102. Therefore, § 15.2-4901 and the definitions contained in § 15.2-4902, which pertain to subsidized single family housing facilities, are applicable to the Authority.[15]

Conclusion

Accordingly, it is my opinion that § 15.2-4901, as it relates to subsidized single family housing facilities, is applicable to the Industrial Development Authority of Pulaski County.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. Section 2.2-505(B) requires that an opinion request from a county attorney "shall itself be in the form of an opinion embodying a precise statement of all facts together with such attorney's legal conclusions."
2. See VA. CODE ANN. tit. 15.2, ch. 49, §§ 15.2-4900 to 15.2-4920 (2008 & Supp. 2009).
3. Section 15.2-4901 (2008).
4. Id.
5. Section 36-4 provides for the creation of housing authorities to be authorized by the qualified voters of a locality in a referendum election, held in accordance with § 36-4.1, to determine whether there is a need for such an authority prior to its activation for the transaction of business.
6. Section 15.2-102 (2008).
7. See id. (limiting construction of the term "municipality" to "cities and towns").
8. Section 15.2-4905(4)-(6) (2008).
9. Section 15.2-4902 (2008) (emphasis added).
10. See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
11. Temple v. Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944); 1997 Op. Va. Att'y Gen. 16, 17.
12. See Petersburg v. Gen. Baking Co., 170 Va. 303, 311, 196 S.E. 597, 600 (1938); Commonwealth v. Sanderson, 170 Va. 33, 39, 195 S.E. 516, 519 (1938); Commonwealth v. Rose, 160 Va. 177, 180, 168 S.E. 356, 357 (1933); Op. Va. Att'y Gen.: 1980-1981, 330, 331; 1974-1975 at 415, 416.
13. See 1997 Va. Acts chs. 758, 763, at 1808, 1808-11, 1821, 1821-24, respectively (amending §§ 15.1-1375, 15.1-1374, predecessors to §§ 15.2-4901, 15.2-4902, respectively); see also id. ch. 587, at 976 (recodifying Title 15.1 as Title 15.2).
14. 2006 Va. Acts ch. 324, at 402, 403.
15. As you note, in enacting § 15.2-4905, the General Assembly expressly withholds from all industrial development authorities the "power to operate any single or multi-family housing facilities."