A reader sent in a reminder to the Mirror that in the event people think the Annexations Orders and Agreements of 1991, effective January 1, 1992 – is old history, remember that the Town of Cape Charles had the Virginia Legislature re-enact the Annexation Orders and Agreements again in March 2002.
Public Law 27 Order – entered into the land records of Northampton County Clerk’s Office in 1991, was re-enacted by the Virginia Legislature in March 2002, recorded in the Civil Common Law Order Book, page 619, also into the Northampton County Clerk’s Office “be enforced’.
Therefore, no Statute of Limitations on any of the Agreements or exhibits attached to Public Law 27 would have expired:
The legislative acts of both the Town of Cape Charles, through its properly enacted Municipal Ordinances of 1990, 1991 and 1993 as amended from time to time and Law No. 27 enacted by both the Special Annexation Court for Northampton County and the Circuit Court of Northampton County, effective January 1, 1992, and reaffirmed by the Virginia General Assembly in March 2002 is also recorded in the Civil Common Law Order Book, at page 619, in the Clerk’s Office of said Court.
Reference: Martinsville v. Henry County: “The enactment of the required ordinance is a legislative act. Southern Railway Co. City of Danville, 175 Va. 300, 305, 7 S.E.2d 896, 898; 13 Mich. Jur., Municipal Corporations, | 52, p. 427. Consequently, if a change in a legislative enactment is necessary or desirable, it must be effected by the legislative branch of the government and not by the judiciary. Mich. Jur., Vol. 4, Constitutional Law, | 53, p. 140; Mich. Jur., Vol. 17, Statutes, | 33, p. 282; Id., | 34, p. 283. As has been said, no such legislative action has been shown in the present case.”
- The Annexation Orders, by both Courts included all of the Agreements, exhibits, evidence and Report of the Commission on Local Government February 1991.
- The Town Agreements were argued, settled. As a result, the legislative acts: the Ordinances and the Orders included the Annexation Agreement of November 25, 1991, between the Town and the County, specifically settling the ‘related issues of concern to the parties’, by which the County withdrew its “objections to the proposed annexation by the Town….” and the Town “agreed to a settlement of the pending annexation suit with the County subject to the approval of this [Annexation] Agreement by the Court.….”
- Further, the Town, the County, and Brown & Root I, Inc., filed as evidence with the Courts, an AGREEMENT, known as the Settlement Agreement, dated November 25, 1991, which identified “the subsequent purchasers of individual lots or other incidents of individual ownership….” as a party to the annexation proceedings and provided relief to such subsequent purchasers from any obligation of Brown and Root contained herein. This Settlement Agreement further stated that the obligations of Brown & Root, contained herein, except as provided above, run with the land and be binding upon the subsequent owners of Accawmacke Plantation, which owners shall assume all of those obligations and relieve the prior owner thereof.” Such obligations as to the contractual details as found in the Town Agreements of March 1990 and November 1991, include the contractual specifics found in ¶ 5 of the Town Agreements between the Town and Brown & Root. The Settlement Agreement by its own admission into the Courts’ Order, a legislative Act, provided third-party beneficiary status to purchasers of property formerly owned by Brown & Root, Baymark, Bay Creek, LLC, Bay Creek Marina and Resort, LLC, and Bay Creek South, L.L.C., as a class.
- See: Supreme Court of Virginia. Oludare OGUNDE v. PRISON HEALTH SERVICES, INC., et al. Record No. 061121 Decided: June 08, 2007. A third-party beneficiary can sue to enforce the contract if he/she was intended to have enforceable rights (e.g., “running with the land”, especially if the Town has abandoned the Contract. See: Mut. R. Fund Ass’n v. Taylor, 99 Va. 208, 37 S.E. 854, 1901. ([W]hen one party to a contract has entirely abandoned it, or has absolutely refused to perform it, the other party may elect to sue on it without waiting for the time of performance to arrive: Mut. R. Fund Ass’n v. Taylor, 99 Va. 208, 37 S.E. at 855-56.
- Jurisdiction. Annexation Orders prescribed and proscribed with or without dates and or limitations are not subject to the statute of limitations as if it were a contract, and not legislative acts.
Background and Text from the 2002 SESSION
CHAPTER 125 – An Act to amend and reenact §§ 1.2, 2.2, 2.3, 3.1, 3.5, 4.1, 4.4, 4.5, 4.8 and 4.9 of Chapter 340 of the Acts of Assembly of 1974, which provided a charter for the Town of Cape Charles, in Northampton County, to amend Chapter 340 by adding a section numbered 5.2, and to repeal § 6.1 of Chapter 340, relating to boundaries, powers, eminent domain, council elections and terms, duties of mayor, council appointments, duties of town manager, town treasurer and chief of police, revenues, and schools.[H 611]Approved March 11, 2002
Be it enacted by the General Assembly of Virginia:
1. That §§ 1.2, 2.2, 2.3, 3.1, 3.5, 4.1, 4.4, 4.5, 4.8 and 4.9 of Chapter 340 of the Acts of Assembly of 1974 are amended and reenacted and that Chapter 340 is amended by adding a section numbered 5.2 as follows:
§ 1.2. Boundaries.
The territory embraced within the town of Cape Charles is that territory in the county of Northampton, Virginia, established in Chapter 367 of the Acts of
the General Assembly of 1938, pages 582-609, and that territory added by the orders in the annexation proceedings in the Circuit Court of Northampton County, Virginia, entered on November 13, 1957, and recorded in the Common Law Order Book 19, at pages 107-108 in the Clerk’s Office of said Court, and another;such order of annexation entered on September 24, 1965, and recorded in the Common Law Order Book 20, at page 341, in the Clerk’s Office of said Court; and an order of annexation entered on November 21, (Sic) 1991, and recorded in the Civil Common Law Order Book, at page 619, in the Clerk’s Office of said Court.
§ 2.2. Adoption of Certain Sections of Code of Virginia.
The powers set forth in
§§ 15.1-837 through 15.2-907, both inclusive of Chapter 18 of Title 15.1 Article 1 (§ 15.2-1100 et seq.) of Chapter 11 of Title 15.2 of the Code of Virginia, as in force on January 1, 1974 2002, and as may hereafter be amended, are hereby conferred on and vested in the town.
§ 2.3. Eminent Domain.
The powers of eminent domain set forth in Title
15.1 15.2 ,; Chapter 1.1 (§ 25-46.1 et seq.) of Title 25 , Chapter 1.1; and § 33.1-121 of the Code of Virginia, as amended, and all acts amendatory thereof and supplemental thereto, mutatis mutandis, are hereby conferred upon the town , subject to the provisions of § 25-233.
(a) In any case in which a petition for condemnation is filed by or on behalf of the town, a true copy of a resolution or ordinance duly adopted by the town council declaring the necessity for any taking or damaging of any property, within or without the town, for the public purposes of the town, shall be filed with the petition. The town may employ the procedures conferred by the foregoing laws, mutatis mutandis, and may, in addition thereto, proceed as hereinafter provided.
(b) Certificates issued pursuant to § 33.1-121 of the Code of Virginia, as amended, and acts amendatory thereof and supplemental thereto, may be issued by the town council, signed by the mayor and countersigned by the town treasurer. Such
certificate certificates shall have the same effect as certificates issued by the State Highway Commissioner, under the aforesaid laws, and may be issued in any case in which the town proposes to acquire property of any kind by the exercise of its powers of eminent domain for streets, water, sewers, and related matters, whether within or without the town.
(c) In addition to the powers conferred by the aforesaid laws, such certificates may be amended or canceled by the court having jurisdiction of the proceedings, upon petition of the town, at any time after the filing thereof; provided, that the court shall have jurisdiction to make such order for the payment of costs and damages, if any, or the refund of any excessive sums theretofore paid pursuant to such
certificate certificates as shall, upon due notice and hearing, appear just. The court shall have jurisdiction to require refunding bonds, for good cause shown by the town or any other person or party in interest, prior to authorizing any distribution of funds pursuant to any certificate issued or deposit made by the town.
§ 15.2-1100. Powers conferred; exercised by council. Perhaps the Town was insuring its power and authority to maintain taxes per ¶ 5 ?, clearly the town was seeking clarity and such was received by this amendment to its charter in 2002.
A municipal corporation shall have and may exercise any or all powers set forth in this article, regardless of whether such powers are set out or incorporated by reference in a municipal charter. All powers vested in a municipal corporation by this chapter shall be exercised by its governing body. Code 1950, § 15-77.2; 1958, c. 328; 1962, c. 623, § 15.1-838; 1979, c. 297; 1997, c. 587.
Note: N.B. Mutatis mutandis is a Medieval Latin phrase meaning “the necessary changes having been made” or “once the necessary changes have been made”, perhaps for the benefit of the ‘connector road’? Why else would the Town in 2002 be seeking this clarification?