VIRGINIA: IN THE CIRCUIT COURT FOR FREDERICK COUNTY TOWN OF STEPHENS CITY ) VIRGINIA, ) ) )

Plaintiff, ) ) v. ) Case No. CL15000591-00 ) FREDERICK COUNTY ) SANITATION AUTHORITY, ) SET FOR OCTOBER 5, 2016 HEARING

) )

Defendant. )

FREDERICK COUNTY SANITATION AUTHORITY’S BRIEF IN SUPPORT OF DEMURRER AND MOTION TO DISMISS THE AMENDED COMPLAINT

COMES NOW the defendant, Frederick County Sanitation Authority (the “Authority”),

by counsel, pursuant to Rule 4:15(c) of the Rules of the Supreme Court of Virginia and timely

submits this Brief in Support of its Demurrer and Motion to Dismiss the Amended Complaint,

previously filed on June 24, 2016. As demonstrated in that filing, and as further demonstrated

below, Plaintiff Town of Stephens City (the “Town”) has failed to state a claim upon which

relief may be granted with respect to the allegations contained in Counts I, II, IV and V, relating

to and premised upon Article VII, Section 9 of the Constitution of Virginia and implementing

statutes. Additionally, Counts II, III, and IV fail to state a claim for trespass or breach of

contract to the extent that they are premised on the legally mistaken ground that all provisions of

the Water Contract, dated June 8, 1992, terminated with the passage of twenty years. Finally,

Count II improperly seeks a declaratory judgment even though non-declaratory claims are fully

mature. For all of these reasons, as explained in greater detail below, the Authority’s Demurrer

and Motion to Dismiss should be granted, and the challenged counts dismissed with prejudice.

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I. INTRODUCTION

Plaintiff, a town of 1,829 persons as of the 2010 census, filed a five-count Complaint on

August 15, 2015 against the Authority, alleging entitlement to an Injunction (Count I),

Declaratory Judgment (Count II), Breach of Contract (Count III), Trespass (Count IV), and

Quantum Meruit (Count V). The Authority filed its Demurrer and Motion to Dismiss with

respect to all Counts on September 21, 2015.

The Court sustained the Demurrer to Counts I, II, IV and V on November 25, 2015, with

leave to amend. By order of December 31, Plaintiff was given until January 19, 2016 to file its

Amended Complaint. Plaintiff did so on January 19, 2016. By Order dated March 18, 2016 the

period in which the Authority was to respond was extended until June 24, 2016, at which time

the Authority filed its demurrer and motion to dismiss as well as a plea in bar.1 On September 9,

2016, and in accordance with Local Rule 3:1(a), the Authority noticed by praecipe its demurrer

and motion to dismiss for a hearing on October 5, 2016, a regularly scheduled motions day,

having been unable to obtain available dates from the Town’s counsel for some months.2 In

accordance with Rule 4:15(c), the Authority files this brief in support of its demurrer and motion

to dismiss.

In accordance with the parties’ contract, the Town bears the obligation to bill and collect

monies from its residents for water and sewer services. Although the residents of the Town

continue to be billed and to pay for these services, the Town has not paid the Authority since

March of 2015, accumulating well over $1 million in accounts receivable. The total due and

1 In light of the need for additional discovery, which is ongoing, the Authority reserves its plea in bar for the taking of evidence on a date to be set by the Court. 2 Counsel for the Town responded to the Authority’s email of September 8, notifying it of the filing of a counter-praecipe, but not in the form provided by Local Rule 3:1(a), and purporting to set a hearing on scheduling briefing and a hearing, without reference to any pending motion.

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owed is roughly equal to half the 2014-15 budget for the Town, see Ryan Cornell, Stephens City

approves budget with tax hike THE NORTHERN VIRGINIA DAILY (June 26, 2014),

http://www.nvdaily.com/news/2014/06/stephens-city-approves-budget-with-tax-hike/ (reporting

that the 2014-15 budget “totals $2.1 million, an increase of about $600,000 from the current

year’s budget”), and roughly equivalent to the amount of monies budgeted from the general fund

for the 2016-17 Town budget, see Rachel Mahoney, Stephens City adopts 2016-2017 budget THE

NORTHERN VIRGINIA DAILY (June 7, 2016), http://www.nvdaily.com/news/2016/06/stephens-

city-adopts-2016-2017-budget/ (“The 2016-2017 budget will spend $1,093,350 from the general

fund, a .3 percent increase from the current fiscal year’s general fund budgeted expenditures of

$1,089,600.”).

The Town has fashioned legal theories which, if valid, would offset the accounts

receivable, leading the Town to remove payment of the Authority from its 2016-2017 budget.

As a consequence, it is unlikely that the Town and the Authority can adjust their dispute until the

validity of the Town’s legal theories is determined. Because those theories as set out in the

Amended Complaint fail to state a claim, the Court should sustain the Authority’s demurrer and

grant its motion to dismiss.

II. GROUNDS FOR SUSTAINING DEMURRER AND FOR GRANTING MOTION TO DISMISS THE AMENDED COMPLAINT

A. The Virginia General Assembly and the Attorney General Have Long

Construed Article VII, § 9’s Limitations Strictly, and Consistently with Their Limited Purpose of Preventing Private Enrichment, and Therefore to be Inapplicable to Transfers of Property Between Public Bodies for Public Use.

Counts I, II, IV and V allege that the agreements dated December 9, 1991, June 8, 1992,

and October 22, 1992, the deeds dated October 30, 1992, the deed of easement dated May 18,

1994, the deed dated August 18, 1994, and the deed and deed of easement dated July 14, 1995

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(the “Transfers”), see Am. Compl. ¶¶ 3, 5, 7, are subject to a supermajority vote requirement, if

deemed a sale, and to an advertising and bid requirement, if deemed a lease. These requirements

are allegedly imposed on the Transfers by Article VII, Section 9 of the Constitution of Virginia

and by the parallel Virginia Code Section, 15.2-2100. Am. Compl. ¶ 46. See also id. at ¶¶ 9, 12,

13, 14, 32, 47, 48, 52, 60, 62, 63, 67, 81, and 85.

Article VII, Section 9 of the Constitution of 1971 provides:

No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the governing body.

No franchise, lease, or right of any kind to use any such

public property or any other public property or easement of any description in a manner not permitted to the general public shall be granted for a longer period than forty years, except for air rights together with easements for columns of support, which may be granted for a period not exceeding sixty years. Before granting any such franchise or privilege for a term in excess of five years, except for a trunk railway, the city or town shall, after due advertisement, publicly receive bids therefore. . . .

As the 1969 Report of the Commission on Constitutional Revision made clear, Article

VII, Section 9 was a carry-over of section 125 of the Constitution of 1902. THE CONSTITUTION

OF VIRGINIA, REPORT OF THE COMMISSION ON CONSTITUTIONAL REVISION TO HIS EXCELLENCY,

MILLS E. GODWIN, JR., GOVERNOR OF VIRGINIA, THE GENERAL ASSEMBLY OF VIRGINIA, AND THE

PEOPLE OF VIRGINIA 237–38 (1969); CONSTITUTION OF VIRGINIA OF 1902, art. 8, § 125.

The Comment section of the Report noted that “[p]roposed section 9 continues section

125 with only one important change dealing with air rights.” Id. at 238. The Report also noted

that proposed section 9 altered section 125 “to eliminate excess verbage and to use language that

conforms with other sections,” although “[n]o change of substance [was] effected.” The

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provision was not extended to counties because “traditionally most counties in Virginia have not

had the franchise power and do not presently have such power” and “[i]f the General Assembly

allows counties to exercise the power of franchise, it can provide limitations it deems suitable.”

Id. at 239. This discussion of counties is consistent with the long-held view that the restrictions

now found in Article VII, Section 9 apply to grants of franchises to private actors and not to

grants to other subdivisions of government. See II REPORT OF THE PROCEEDINGS AND DEBATES

OF THE CONSTITUTIONAL CONVENTION STATE OF VIRGINIA 1991-2005, 2030-31, 2033–40 (1906)

(demonstrating through debate on the Report of the Committee on Cities and Town in the

Committee of the Whole that what became Section 125 of the Constitution of 1902 was directed

exclusively to the sale of valuable public property to private interests and to leasing of valuable

franchise rights to private interests). In conformity with this purpose, trunk railways were

excluded because “the franchise of these switch tracks is not worth anything.” Id. at 2034.

As explained by the Supreme Court of Virginia in 1922, “[s]uch restrictions in the

Constitution are strictly construed, and unless they clearly apply, the council in such cases is

governed by general rules,” and may dispose of property under otherwise applicable law. Town

of Victoria v. Victoria Ice, Light & Power Co., 134 Va. 124, 128–29, 114 S.E. 89, 90 (1922).

Whether the easements are claimed to be a sale of rights in public property, governed by clause 1

of Article VII, Section 9, or claimed to be an unlimited easement governed by clause 2 of Article

VII, Section 9, the construction of section 125 as incorporated into Article VII, Section 9 of the

Constitution of 1971 must be guided by the purpose for which it was adopted: to “prevent[] the

permanent dedication of publicly owned property to private use.” 1989 Va. Att’y Gen. Op. 125,

1989 Va. AG LEXIS 119, *3–4, 1989 WL 433212, at *2 (Sept. 13, 1989); accord 2008 Va. Att’y

Gen. Op. 73, 2008 WL 5195967, at *1 & n.8 (Dec. 1, 2008) (same, and collecting four other

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attorney general opinions so stating); 1999 Va. Att’y Gen. Op. 63, 64, 2000 WL 1875534, at *2

(Nov. 3, 2000) (“The clear intent of the constitutional provision is to safeguard public property

and ensure that it not be appropriated by private self-interests for an extended term to the

detriment of the public without due consideration by council members.” (emphasis added)); see

also JOHN DINAN, THE VIRGINIA STATE CONSTITUTION: A REFERENCE GUIDE 161 (2006) (“As

for the purpose of this section, … the Virginia Supreme Court of Appeals remarked in Victoria v.

Victoria LLC, Light & Power Co. (1922) that its ‘prime object’ was ‘to restrict municipalities in

the methods by which their power to grant the use of their streets (otherwise conferred) is

exercised.”). It is a general rule that, in construing constitutional provisions, “[t]he purpose and

object sought to be attained by the framers of the constitution is to be looked for, and the will and

intent of the people who ratified it is to be made effective.” Dean v. Paolicelli, 194 Va. 219,

226, 72 S.E.2d 506, 511 (1952); accord Kopalchick v. Catholic Diocese of Richmond, 274 Va.

332, 340, 645 S.E.2d 439, 442 (2007); see Commonwealth v. City of Newport News, 158 Va.

521, 545, 164 S.E. 689, 696 (1932) (affirming that the provisions of the Virginia Constitution

“must also be construed in the light of the purposes for which it was ordained”).

“In responding to numerous questions that have arisen in regard to these restrictions,

Attorneys General have been guided by this understanding, which was affirmed most recently in

a 2004 opinion, that ‘the clear intent of Article VII, § 9 is to safeguard public property and

ensure that it not be appropriated by private self-interests for an extended term to the detriment

of the public without due consideration by the governing body’ (2004 Va. AG LEXIS 28, pp. 8-

9).” DINAN, A REFERENCE GUIDE at 161; accord 2008 Va. Att’y Gen. Op. 73, 2008 WL

5195967, at *1. In that Attorney General opinion construing application of the clause and

implementing statutes governing sales, the question presented involved the sale of a parcel of

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land by Charlottesville “for construction of the Meadow Creek Parkway,” a public highway.

DINAN, A REFERENCE GUIDE at 161. “[T]he Attorney General concluded that ‘there cannot be

any suggestion that the city council is disposing of valuable public property at a fraction of its

worth for private benefit, or that some private business interests are being favored over the public

interests in the specific property of the city’s public park property.’ (p. 17).” Id. at 161–62. See

also, 2004 Va. Att’y Gen. Op. 4, 2004 Va. AG LEXIS 28, at *17, 2004 WL 1237158, at *5 (Apr.

16, 2004) (“Clearly the city simply is changing the use of its park property to city highway

property. Both of these uses are for the benefit of, and use by, the general public.”).

Accordingly, the Attorney General concluded “that the provisions of Article VII, § 9 and § 15.2-

2100 are [not] implicated in any manner in this specific factual context,” and that no

supermajority vote was required. 2004 Va. Att’y Gen. Op. 4, 2004 Va. AG LEXIS 28, at *17,

2004 WL 1237158, at *5.

Similarly, the Attorney General has long construed the clause governing leases, and

implementing statutes, to apply to transfers to other public entities only if those transfers were

made subject, by statute, to the public bidding requirements. The Attorney General has

consistently read the General Assembly’s decision not to require public bidding in these

circumstances as a constitutional construction by that body that the constitutional provision was

not implicated. See 1989 Va. Att’y Gen. Op. 125, 1989 Va. AG LEXIS 119, at *5, 1989 WL

433212, at *2 (concluding that this statutory omission “indicate[s] that the General Assembly

generally has construed the requirements of Article VII, § 9 and §§ 15.1-307 and 15.1-310 as

inapplicable when the municipally owned real property is leased to a governmental entity.”).

Such legislative constructions are afforded substantial deference by the courts, Montgomery Cty.

v. Virginia Dep't of Rail & Pub. Transp., 282 Va. 422, 435, 719 S.E.2d 294, 300 (2011) (“this

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Court ‘will declare the legislative judgment null and void only when the statute is plainly

repugnant to some provision of the state or federal constitution”), and “[l]ong acquiescence in

such an announced construction so strengthens it that it should not be changed unless plainly

wrong.” Dean, 194 Va. at 227, 72 S.E.2d at 511; see also City of Roanoke v. James W.

Michael’s Bakery Corp., 180 Va. 132, 143, 21 S.E.2d 788, 793 (1942) (“Framers of the

Constitution are presumed to have been aware of prior decisions of their own courts and of

legislative acts construing words or phrases in the light of such construction.”).

The General Assembly has evinced a belief for almost 70 years that these constitutional

restrictions do not apply to water and sewer authorities. In 1950, the General Assembly first

adopted as part of the organic statute for water and sewer authorities a statutory exemption from

the public bidding regime for transfers of property rights to those authorities, thereby evincing

the view that such transfers were also exempt from the bidding provisions of Article VII, Section

9. See 1950 Va. Acts c. 577, § 5(m), at 1320 (Apr. 11, 1950). Now codified, without substantial

change, at Virginia Code Section 15.2-5148, the statute provides that

Any unit, notwithstanding any contrary provision of law, may transfer jurisdiction over or lease, lend, grant or convey to an authority, upon the request of the authority and upon such terms and conditions to which the governing body and authority may agree, such real or personal property as may be necessary or desirable in connection with the acquisition, construction, improvement, operation or maintenance of a system by the authority, including public roads and other property already devoted to public use.

Section 19 of that same 1950 Act, now codified at Virginia Code Section 15.2-5147, also

provided that localities were “authorized and empowered: (a) to convey or lease to any Authority

created hereunder, with or without consideration, any water system or any facilities for the

collection, treatment or disposal of sewage or any right or interest in such facilities or any

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property appertaining thereto, upon such terms and conditions as the governing body thereof

shall determine to be for the best interests of such county, municipality or other public body.”

1950 Va. Acts c. 577, § 19(a), at 1330. And Section 20 specifically stated that “[t]his act shall

constitute full and complete authority, without regard to the provisions of any other law, for the

doing of the acts and things herein authorized, and shall be liberally construed to effect the

purposes hereof.” Id. § 20, at 1330. Although “[t]he General Assembly, of course, may not

construe away a constitutional provision, . . . its legislative interpretation of a constitutional

provision is considered persuasive. See City of Richmond v. Hospital, 202 Va. 86, 94, 116

S.E.2d 79, 84 (1960),” 1989 Va. AG LEXIS 119, at *5, 1989 WL 433212, at *2, particularly

when so longstanding as here, and after surviving the constitutional revision of 1971. Because

the framers of the Constitution are presumed to know that the General Assembly did not construe

the words of Section 125 as applying to transfers of public property to water and sewer

authorities and made no substantive change to the language when adopting Article VII, Section 9

of the Constitution of 1971, the words of that provision will not bear a construction making them

applicable to transfers to such authorities. See City of Roanoke, supra.

Moreover, the passage of time, without legislative action, confirms that the Attorney

General has properly divined the intent of the Virginia General Assembly, and also confirms the

constitutionality of Code Sections 15.2-5147 and 5148. Although a construction adopted by the

Virginia Attorney General is not binding on the judiciary, the Virginia Supreme Court has

deemed such a construction “of persuasive character,” Clinchfield Coal Co. v. Robbins, 261 Va.

12, 18, 541 S.E.2d 289, 292 (2001) (quotation marks omitted), and, where sufficiently

longstanding to afford the General Assembly the occasion to learn of it and respond, has

concluded that the Assembly’s “‘failure to make corrective amendments evinces legislative

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acquiescence in the Attorney General’s view,’” Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d

195, 200 (2004) (quoting Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161–62, 300

S.E.2d 603, 605–06 (1983)). Neither Virginia Code Section 15.2-2100, implementing Article

VII, Section 9’s provisions, nor Virginia Code Sections 15.2-5147 and 5148, exempting transfers

to water authorities, have been amended in pertinent part since these Attorney General Opinions

issued. Accordingly, the Attorney General’s constructions of the statutes implementing the

supermajority and public bid requirements of Article VII, Section 9 to not include sales to public

entities for public purposes or leases to public bodies not subject to parallel statutory bidding

requirements should be understood to be the settled view of the Assembly. This Court should

defer to that view and conclude that because the Authority is a political subdivision created

pursuant to the Virginia Water and Wastewater Authorities Act, Va. Code § 15.2-5100 et seq.,

Am. Compl. ¶ 2, Article VII, Section 9 is simply not implicated by the Transfers.

Besides these rules of construction, the Authority also notes that the notice and bid

requirement would make no sense where property was transferred from a town to another public

body for a public purpose. Courts disfavor constructions that require futile acts and lead to

absurd results. See Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346

(1997); see also United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940) (“When that

meaning has led to absurd or futile results, however, this Court has looked beyond the words to

the purpose of the act.”).

There is an additional consideration that weighs heavily in favor of the conclusion that

the Town’s allegations based upon Article VII, Section 9 fail to state a claim on which relief can

be granted. In order to accept its claim, the Town would have to convince this Court that

Sections 15.2-5147 and 5148 are unconstitutional, because they plainly authorize the transfers

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without a super-majority vote, publication or a bid. Plaintiff, however, can never sustain that

heavy burden. Unlike the powers of the Congress, which are enumerated and therefore limited,

the powers of the General Assembly are plenary subject only to constitutional prohibition.

‘The Legislature represents the sovereign authority of the people, except so far as restrictions are enforced by the Constitution in express terms or by strong implication. We look to the Constitution of the State not for grants of power, but for limitations. When the prohibition is not found in the language of that instrument, or in its framework and general arrangement, there is no solid ground to pronounce the enactment void. The infraction must be clear and paplable.’ This conclusion follows from the accepted canon of construction applicable to the Constitution of this State, that it is a restraining instrument, and that the General Assembly of the State possesses all legislative power not prohibited by the Constitution.

Gallagher v. Commonwealth, 284 Va. 444, 452, 732 S.E.2d 22, 25–26 (2012) (quoting Whitlock

v. Hawkins, 105 Va. 242, 248, 53 S.E. 401, 403 (1906)). “In Virginia, it is firmly established

that [a]ll actions of the General Assembly are presumed to be constitutional.” L.F. v. Breit, 285

Va. 163, 180, 736 S.E.2d 711, 720 (2013) (internal quotation marks omitted). “There is, indeed,

no stronger presumption known to the law. Accordingly, th[e Virginia Supreme] Court must

resolve any reasonable doubt regarding a statute’s constitutionality in favor of its validity.

Further, . . . [that] Court will declare the legislative judgment null and void only when the statute

is plainly repugnant to some provision of the state or federal constitution.” Montgomery County,

282 Va. at 435, 719 S.E.2d at 300 (internal citations and quotation marks omitted); accord

Elizabeth River Crossings OpCo, LLC v. Meeks, 286 Va. 286, 301, 749 S.E.2d 176, 183 (2013)

(“[O]nly where the statute in issue is plainly repugnant to a constitutional provision will we

declare it null and void.” (quotation marks omitted)).

For all of these reasons, Virginia “Attorneys General historically have refrained from

opining that a statute is unconstitutional unless the statute clearly is unconstitutional beyond a

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reasonable doubt.” 2007 Va. Att’y Gen. Opi. 30, 34–35 & n.8, 2007 Va. AG LEXIS 10, at *4 &

n.8, 2007 WL 835415, at *1 & n.8 (Mar. 5, 2007) (Opi. No. 06-099) (collecting authorities);

accord 2011 Va. Att’y Gen. Opi. 31, 2011 Va. AG LEXIS 31, at *13–14 & n.17, 2011 WL

2163624, at *5 n.17 (May 27, 2011) (Opi. No. 11-039).

Obviously, Virginia Code Sections 15.2-5147 and -5148 cannot be unconstitutional

beyond a reasonable doubt because of the limited historical purpose of Article VII, Section 9 and

the consistent views of the General Assembly and the Attorney General over a long period that

Article VII, Section 9 is not implicated by transfers to a public body. See Howell v. McAuliffe,

___ Va. ___, ___, 788 S.E.2d 706, 717, 718 (2016) (recognizing that in construing the Virginia

Constitution “‘a page of history is worth a volume of logic’” and that “Lewis counsels that we

accord interpretive respect to the unbroken historical record . . .”).

B. As This Court Previously Found, the Town Fails to State a Claim to the Extent That It Depends upon Construing the Easement Rights Conveyed by the Water Contract to Terminate after Twenty Years, Contrary to that Agreement’s Plain Language.

In Counts II, III and IV of the Amended Complaint, the Town alleges that all continuing

use of the easements following the supposed expiration of the Water Contract’s twenty-year term

in 2012, Am. Compl. ¶¶ 49, 60, 66, 73, 74, 77–80, is a trespass and a breach of contract, and

seeks a declaration of the same. As the terms of the Water Contract plainly show, and as this

Court held in its November 25, 2015 Order, Plaintiff’s allegations “ignore[] the fact that the

agreement conveyed . . . easement rights to withdraw water that . . . are [not] fixed by that term

of years,” but “are perpetual subject only to the possibility of reverter . . . .” Nov. 25, 2015

Order at 6. This was the proper role of the Court because “[i]t is the court’s duty to declare what

the instrument itself says it says. [W]hat the parties claim they might have said, or should have

said, cannot alter what they actually said.” Babcock & Wilcox Co. v. Areva NP, Inc., 292 Va.

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165, __, 788 S.E.2d 237, 249–50 (2016) (internal citation, footnote, and quotation marks

omitted). Because the documents attached to the Amended Complaint confirm that the

easements granted did not terminate with the end of the term provided in the Water Contract’s

for the Town’s purchase of water, see Water Contract § 2, this Court should dismiss the Town’s

Amended Complaint insofar as it is premised upon the contrary view, see Dodge v. Trs. of

Randolph-Macon Woman’s Coll., 276 Va. 1, 5–6, 661 S.E.2d 801, 803–04 (2008); Ward’s

Equip., Inc. v. New Holland N. Am., Inc., 254 Va. 379, 382–84, 493 S.E.2d 516, 518–20 (1997).

C. Because the Town’s Claims Are Fully Mature, Declaratory Relief Is Not Available, and the Town’s Request for the Same Should Be Dismissed.

Finally, in Count II of the Amended Complaint, the Town seeks declaratory relief as to

past or continuing acts of the Authority for which it also seeks coercive relief. However,

“‘where claims and rights asserted have fully matured, and the alleged wrongs have already been

suffered, a declaratory judgment proceeding, which is intended to permit the declaration of rights

before they mature, is not an available remedy.’” Charlottesville Area Fitness Club Operators

Ass’n v. Albemarle Cty. Bd. of Supvrs., 285 Va. 87, 99, 737 S.E.2d 1, 7 (2013) (quoting Bd. of

Supvrs. v. Hylton Enters., 216 Va. 582, 585, 221 S.E.2d 534, 537 (1976)); accord Cherrie v. Va.

Health Servs., Inc., __ Va. ___, ___ & n.2, 787 S.E.2d 855, 859 & n.2 (2016); see also Small v.

Fed. Nat’l Mortgage Ass’n, 286 Va. 119, 134 n.3, 747 S.E.2d 817, 825 n.3 (2013) (McClanahan,

J., concurring in part and dissenting in part) (noting that “in a suit seeking damages for breach of

contract, plaintiffs are neither required nor permitted to file a separate claim for a declaratory

judgment that the defendant breached the terms of the contract. Instead, plaintiffs simply prove

the breach as part of the legal claim for damages, and existence of a normal contract remedy

makes declaratory relief unavailable”; collecting cases). As before, see Nov 25, 2015 Order at 6-

7, the Amended Complaint seeks declaratory relief as to claims that have long ago accrued. As

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800 East Canal Street Richmond, Virginia 23219-3916 (804) 775-4710 (Telephone)

(804) 698-2098 (Facsimile)

Counsel for the Frederick County Sanitation Authority