If Fairfax County converted to an independent city, what would happen to the existing City of Fairfax and Town of Vienna, and could the converted county use the same name 'City of Fairfax'?

Plain-English summary

Senator J. Chapman Petersen, whose district includes the City of Fairfax and parts of Fairfax County, asked the Attorney General what would happen if Fairfax County decided to convert from a county into an independent city under Chapter 39 of Title 15.2. The questions: what happens to the existing City of Fairfax and Town of Vienna; what does it mean that towns become "townships" inside a new city; do the City and Town keep their legal powers; and can the converted county even use the name "City of Fairfax" given that there already is one?

Acting AG William Mims walked through each question.

First, the existing City of Fairfax and the Town of Vienna keep their charters. Section 15.2-3917 freezes the legal status of any city "declared to be such prior to July 1, 1978." The Town of Fairfax was incorporated in 1892, made a city of the second class by Fairfax County Circuit Court order in 1961, and given a new charter by the General Assembly in 1962. So the City of Fairfax sits squarely inside § 15.2-3917's protection, and Chapter 39 cannot disturb it.

Second, the Town of Vienna would "automatically continue as a township within the city" under § 15.2-3916(A). The town's charter becomes the township's charter. The relationship between Vienna and what is now Fairfax County is governed by current general law, which "continues in effect." Within the four corners of Chapter 39, there is no substantive legal difference between a town and a township: the only operational change is that the geographic county boundary becomes the city boundary, so the town becomes a township-inside-a-city instead of a town-inside-a-county.

Third, neither the City of Fairfax nor the Town/Township of Vienna loses any legal powers or limitations as a result of the conversion. Sections 15.2-3915 (county may convert without town action), 15.2-3916(A) (townships keep their powers), and 15.2-3917 (preexisting cities preserved) work together to preserve the status quo of the existing municipalities.

Fourth, the name "City of Fairfax" presents a practical (but soluble) problem. The General Assembly must approve any charter for a new city, and the charter includes the name. The AG concluded that the General Assembly may approve the new city's charter using the name "City of Fairfax" (because constitutional and statutory authority lets the legislature make that call), but to avoid confusion with the existing City of Fairfax it would also have to pass special legislation amending the existing City's charter to change its name. That is a legislative choice, not an automatic consequence of conversion.

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

Title 15.2, Chapter 39 (Va. Code Ann. §§ 15.2-3900 to 15.2-3919) sets out the process by which a Virginia county can convert into an independent city. The chapter is largely a procedural roadmap (special court, referendum, certification of charter to General Assembly), but several provisions address the effect on existing municipal entities inside the county:

• § 15.2-3915 confirms that the county may convert without action by any town inside it.
• § 15.2-3916(A) automatically reconstitutes each town inside the converting county as a "township" within the new city, keeping the town's charter as the township's charter and continuing the law of town-to-county relationships in effect.
• § 15.2-3917 carves out cities "declared to be such prior to July 1, 1978." Their organization, government, officers, charter, and governing laws are not affected by Chapter 39. The City of Fairfax (declared a city in 1961-1962) is one of those cities.

The opinion notes that the Virginia Constitution is a "restraining instrument," not a grant of legislative power. The General Assembly may take any action not prohibited by the state or federal Constitutions. So the General Assembly's role at the end of Chapter 39 (approving the proposed charter, including its name) is broad. The opinion does not preview what the General Assembly would actually do; it just outlines the legal options.

Common questions

Would Fairfax County's conversion abolish or change the City of Fairfax?

No. Section 15.2-3917 freezes the City of Fairfax's legal status because the City was declared a city before July 1, 1978. The county's conversion under Chapter 39 cannot disturb the existing city's charter, government, officers, or governing laws.

What practical changes does the Town of Vienna see if Fairfax County becomes a city?

The Town of Vienna becomes a "township" inside the new city, with its charter unchanged and its powers preserved under § 15.2-3916(A). The relationship between Vienna and the new city is governed by the same general law that today governs the Vienna-Fairfax County relationship. Day-to-day, Vienna keeps doing what it does.

What is the legal difference between a 'town' and a 'township'?

In this context, essentially none. Section 15.2-102 defines "town" for Title 15.2 purposes. The General Assembly did not define "township" separately, and § 15.2-3916(A) is the only place "township" appears as a term of art. The AG concluded that "township" describes geographic location inside a new city; the entity continues to operate under its town charter and town powers. The label changes; the substance does not.

Could the new city actually use the name 'City of Fairfax'?

Only if the General Assembly approves a charter using that name, and only with companion legislation to change the existing City of Fairfax's name. Both pieces of legislation would be required under the AG's analysis. The General Assembly has constitutional authority to do either, but it is not automatic.

Why does the General Assembly have to approve the new city's name?

Section 15.2-3914 requires the proposed charter for the new city to be certified to the General Assembly in the form of a proposed bill, then introduced and enacted as legislation. The charter, including the city's name, comes into legal existence through that statute. Without General Assembly action, the conversion process does not complete.

Citations

• Va. Code Ann. § 15.2-102 (definition of "town")
• Va. Code Ann. § 15.2-3914 (certification of proposed charter to General Assembly as a bill)
• Va. Code Ann. § 15.2-3915 (county may convert without town action)
• Va. Code Ann. § 15.2-3916(A) (towns become townships in new city)
• Va. Code Ann. § 15.2-3917 (cities declared before July 1, 1978 unaffected)
• 1962 Va. Acts ch. 360 (City of Fairfax charter)
• Harrison v. Day, 201 Va. 386, 111 S.E.2d 504 (1959) (Virginia Constitution as restraining instrument)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-046-Petersen.pdf

Original opinion text

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

August 24, 2009

The Honorable J. Chapman Petersen
Member, Senate of Virginia
P.O. Box 1066
Fairfax, Virginia 22038

Dear Senator Petersen:

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 inquire regarding what effect Fairfax County becoming a city would have on the existing charter for the City of Fairfax (the "City") and the Town of Vienna (the "Town"). You also ask whether there is any difference between a town and a township as those terms are used in § 15.2-3916, and whether Fairfax County becoming a city would have any impact on the legal powers or limitations of the City and the Town. Finally, you ask whether Fairfax County is prevented from using the name City of Fairfax should it become a city.

Response

It is my opinion that should Fairfax County become a city pursuant to Chapter 39 of Title 15.2, there would be no effect on the existing charters of the City of Fairfax and the Town of Vienna. It further is my opinion that a town and a township, as those terms are used in § 15.2-3916, essentially are the same. Further, should Fairfax County become a city, it is my opinion that there will be no impact on the legal powers of or limitations on the City and the Town. Finally, it is my opinion that the General Assembly would have to approve the charter for the new city, which would include its name.

Applicable Law and Discussion

Chapter 39 of Title 15.2, §§ 15.2-3900 through 15.2-3919, governs the process for the transition of counties to cities. Section 15.2-3915 provides that:

A county may become an independent city in accordance with the foregoing provisions of [Chapter 39] without the necessity of any action being taken by the council of any town situated in such county and without the necessity of separate referenda in any such town on the question of the transition of the county to a city.

Furthermore, § 15.2-3916(A) provides:

Each town located within any county which becomes a city pursuant to the provisions of [Chapter 39] shall automatically continue as a township within the city, and the charter of each such town shall become the charter of the township with the law governing the relationship of the town to the county continuing in effect. Such townships established pursuant to this subsection shall continue to exercise such powers and elect such officers as the township charter may authorize and such other powers as the former town previously exercised under general law.

Finally, § 15.2-3917 provides Chapter 39 "shall in no way affect the organization, government, officers, charter or laws governing any city declared to be such prior to July 1, 1978."

The 1892 Session of the General Assembly originally incorporated the City of Fairfax as a town.[1] By order of the Circuit Court of Fairfax County, dated June 30, 1961,[2] the Town of Fairfax was made a city of the second class, and the 1962 Session of the General Assembly enacted a new charter for the City of Fairfax.[3] Therefore, the City was "declared to be such prior to July 1, 1978."

Statutory language is ambiguous when it may be understood in more than one way.[4] An ambiguity also exists when statutory language lacks clarity and precision, or is difficult to comprehend.[5] "The province of [statutory] construction lies wholly within the domain of ambiguity, and that which is plain needs no interpretation."[6] However, when statutory language is clear and unambiguous, the plain meaning and intent of the enactment will be given to it.[7] It is my opinion that §§ 15.2-3915, 15.2-3916 and 15.2-3917 are free of any ambiguities. Therefore, the existing charters for the City and the Town would not be affected should Fairfax County become a city under Chapter 39.

In § 15.2-102, the General Assembly defines the term "town" for purposes of Title 15.2 to mean

any existing town or an incorporated community within one or more counties which became a town before noon, July one, nineteen hundred seventy-one, as provided by law or which has within defined boundaries a population of 1,000 or more and which has become a town as provided by law.

Because § 15.2-3916 is a part of Title 15.2, the definition of "town" in § 15.2-102 is applicable. However, the General Assembly has not defined the term "township" as it is used in § 15.2-3916. The only difference between the use of the term "town" and the term "township" is set forth by the General Assembly in § 15.2-3916(A). When a county becomes a city under the provisions of Chapter 39 of Title 15.2, each town located within that county automatically becomes a township based on its geographical location within the county. In addition, § 15.2-3916(A) provides that the charter of the town becomes the charter of the township, "with the law governing the relationship of the town to the county continuing in effect." Furthermore, the townships formed as a result of a county becoming a city "shall continue to exercise such powers and elect such officers as the township charter may authorize and such other powers as the former town previously exercised under general law." In the context of this statute, there is no substantive legal distinction between a town and a township.

Finally, the General Assembly previously enacted a charter for the City when the Town of Fairfax was made a city of the second class by order of the Circuit Court of Fairfax County.[8] In considering the request of Fairfax County, pursuant to approval of its proposed charter as a city,[9] to use the name of the "City of Fairfax," the General Assembly must consider the fact that the name already exists and is used by the City. Accordingly, the General Assembly may permit the County to use the name "City of Fairfax" by approving the proposed charter upon certification by the special court. To prevent the confusion that would occur should two localities bear the name of the City of Fairfax, the General Assembly would need to pass special legislation to amend the existing charter of the City to change its name accordingly.

Conclusion

Accordingly, it is my opinion that should Fairfax County become a city pursuant to Chapter 39 of Title 15.2, there would be no effect on the existing charters of the City of Fairfax and the Town of Vienna. It further is my opinion that a town and a township, as those terms are used in § 15.2-3916, essentially are the same. Further, should Fairfax County become a city, it is my opinion that there will be no impact on the legal powers of or limitations on the City and the Town. Finally, it is my opinion that the General Assembly would have to approve the charter for the new city, which would include its name.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. See 1891-1892 Va. Acts ch. 282, at 464, 464-68.
2. See 1962 Va. Acts ch. 360, at 770, 770 (noting order of circuit court in enacting clause).
3. Id. at 770-83.
4. Supinger v. Stakes, 255 Va. 198, 205, 495 S.E.2d 813, 817 (1998); Va.-Am. Water Co. v. Prince William County Serv. Auth., 246 Va. 509, 514, 436 S.E.2d 618, 621 (1993); Va. Dep't of Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 101, 353 S.E.2d 758, 762 (1987).
5. Supinger, 255 Va. at 205, 495 S.E.2d at 817; Lee-Warren v. Sch. Bd., 241 Va. 442, 445, 403 S.E.2d 691, 692 (1991).
6. Winston v. City of Richmond, 196 Va. 403, 408, 83 S.E.2d 728, 731 (1954).
7. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).
8. See supra notes 2-3 and accompanying text.
9. Section 15.2-3914 requires that the proposed charter for a county that desires to become a city which is adopted by a majority voting at the required election, must be submitted by the special court "in the form of a proposed bill to grant the charter" and "shall be certified to one or more members of the General Assembly representing the county for introduction as a bill in the General Assembly."