Does Surry County have to charge the new regional transportation taxes that HB 2313 imposed on Hampton Roads localities?

Plain-English summary

HB 2313 (Chapter 766) was the 2013 Transportation Funding Bill, which imposed additional sales tax, recordation fee, and transient occupancy tax on localities "located in" any planning district meeting specific population, registered vehicle, and transit ridership criteria. Only two planning districts met the criteria: District 8 (Northern Virginia) and District 23 (Hampton Roads).

Surry County is physically located in Planning District 19 (Crater Planning District). But Surry had previously exercised its option under Va. Code § 15.2-4220 to become a member of the District 23 (Hampton Roads) Planning District Commission. The County Attorney needed to know whether Surry's voluntary membership in the District 23 Commission made it "located in" District 23 for HB 2313 purposes.

The AG said no.

Statutory reading. HB 2313's taxes apply to localities "located in" a qualifying planning district. The ordinary meaning of "located in" refers to physical location, not voluntary commission membership. Surry is physically in District 19. Membership in another district's commission is a cooperative-planning decision, not a relocation.

One district at a time. A locality has one physical location. Va. Code § 15.2-4220 lets a locality be a member of more than one planning district commission, but that membership doesn't shift the locality's underlying physical location. Two memberships, one location.

Result. Because Surry is in District 19 (not a qualifying district), HB 2313's regional transportation taxes did not apply to Surry as of July 1, 2013.

Currency note

This opinion was issued in 2013. 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.

HB 2313's regional tax framework remains in Virginia statutes but has been amended. The list of qualifying planning districts could in theory expand if Planning District 19 ever met the population, vehicle, and ridership criteria, but that has not happened as of the 2014 opinion.

Common questions

What is a planning district?
A multi-county region created under Va. Code § 15.2-4201 to facilitate regional cooperation on planning matters. Virginia has 21 planning districts. Each has a Planning District Commission with member localities.

What's the difference between Planning District 19 and 23?
Planning District 19 is the Crater Planning District (Petersburg, Hopewell, Prince George, Surry, Sussex, etc.). Planning District 23 is the Hampton Roads Planning District Commission (Norfolk, Virginia Beach, Chesapeake, Newport News, Hampton, etc.). They are geographically distinct.

Why was Surry a member of District 23's commission?
Surry has economic and transportation ties to Hampton Roads (the Jamestown-Scotland Ferry connects Surry to James City County). Voluntary commission membership lets Surry participate in regional planning for issues affecting both areas.

Does Surry have any voice on HB 2313 spending?
Through its commission membership in District 23, Surry can participate in planning conversations. But it doesn't pay the District 23 regional taxes and doesn't get to vote on the specific tax expenditure decisions in the same way as fully-located member localities.

Could the AG's interpretation have gone the other way?
The statute could have been read to include voluntary commission members as "located in" the district, but the AG declined to stretch it that far. The ordinary meaning of "located in" controls geographic interpretation.

What about Hampton Roads localities not on the original list?
The HB 2313 statute itself defined which localities are part of the Hampton Roads Region (the list was specific). Localities not on the list were excluded by definition, regardless of commission membership.

Does this opinion bind the Department of Taxation?
AG opinions are persuasive authority, not binding. The Department of Taxation has its own interpretive role, but in practice the AG's opinion would carry significant weight in tax administration.

Background and statutory framework

• 2013 Va. Acts ch. 766: HB 2313, the Transportation Funding Bill.
• Va. Code § 15.2-4201: planning district creation.
• Va. Code § 15.2-4220: locality may be a member of more than one planning district commission.

The interpretive moves:

• Plain meaning of "located in" refers to physical location (Moyer, McKeon).
• One physical location per locality.
• Voluntary commission membership is a separate cooperative arrangement, not a relocation.

Citations

• 2013 Va. Acts ch. 766
• Va. Code § 15.2-4201
• Va. Code § 15.2-4220
• Moyer v. Commonwealth, 33 Va. App. 8, 513 S.E.2d 580 (2000)
• McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-055_Hefty.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

June 14, 2013

William H. Hefty, Esquire
County Attorney for Surry County
Hefty & Wiley, P.C.
Old City Hall, Suite 230
1001 East Broad Street
Richmond, Virginia 23219

Dear Mr. Hefty:

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

Issue Presented

Your inquiry concerns whether Surry County is subject, on July 1, 2013, to the regional transportation taxes and fees included in the 2013 Transportation Funding Bill, Chapter 766 of the Virginia Acts of Assembly, 2013 Reconvened Session ("the Act").

Response

It is my opinion that on July 1, 2013, Surry County will not be subject to the regional transportation taxes and fees included in the Act.

Background

You relate that Surry County is physically located in Planning District 19. You further relate that Surry County, pursuant to § 15.2-4220 of the Code of Virginia, has elected to become a member of the Planning District Commission for Planning District 23.

Applicable Law and Discussion

The Act provides for the imposition of certain specific taxes and fees by localities "located in" a planning district that meets certain population, registered vehicle, and transit ridership criteria. Currently, Planning District 23 and Planning District 8 are the only districts that meet these criteria. Planning District 8 is located in Northern Virginia and is not germane to the discussion here.

Surry County is located in Planning District 19. The fact that Surry County is also a member of the District 23 Planning District Commission does not change the fact that Surry County is located in Planning District 19. Section 15.2-4220 of the Code of Virginia does provide that a county or other locality can be a member of more than one planning district commission. Nevertheless, a locality can be physically "located in" only one planning district. Ordinarily when a particular word or phrase in a statute is not defined therein one must give it its ordinary meaning. Surry County is located in Planning District 19. The additional local taxes provided by the Act do not apply to localities located in Planning District 19.

Conclusion

Accordingly, it is my opinion that on July 1, 2013, Surry County will not be subject to the regional transportation taxes and fees included in the Act.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General