Present: All the Justices 

W. S. CARNES, INC., ET AL. 

v. Record No. 960352 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 November 1, 1996 

BOARD OF SUPERVISORS OF 

CHESTERFIELD COUNTY, ET AL. 

 FROM THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD 

Herbert C. Gill, Jr., Judge 

 The primary issue in this appeal concerns the validity of 

two ordinances which impose a $125 increase in the fee charged 

for new residential building permits. 

 The Home Builders Association of Richmond, Inc. (the 

Association), and W. S. Carnes, Inc., a Chesterfield County 

homebuilder (collectively, the builders), filed a motion for 

declaratory judgment against the Board of Supervisors of 

Chesterfield County (the Board), and William D. Dupler, the 

Chesterfield County Building Official. The builders sought an 

order declaring invalid two ordinances adopted by the Board, 

which imposed a $125 increase in the permit fee charged for all 

new residential construction. 

 In their motion for declaratory judgment, the builders 

contended that the ordinances violate (1) Code § 36-105, which 

authorizes a locality to charge building permit fees only to 

defray the cost of building code enforcement and related appeals; 

(2) Uniform Statewide Building Code1 § 104.3, which states that 

building permit fees shall incorporate unit rates; and (3) Code 

 

 1The Uniform Statewide Building Code has been incorporated into 

Volume 13 of the Virginia Administrative Code (1996) at 5-60-10. 
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§ 15.1-37.3:9(B), which prohibits the direct or indirect use of 

building permit fee funds for the repair of residences damaged by 

moisture-related shrinking and swelling in soil having a high 

clay content. 

 The builders also alleged that the ordinances violate the 

"special laws" prohibition of the Virginia Constitution. Va. 

Const. art. IV, §§ 14 and 15. Finally, the builders contended 

that the revenue received from the ordinances exceed the County's 

costs of building code enforcement. The builders sought, among 

other things, entry of an order declaring the ordinances invalid. 

 During a bench trial, Dupler testified that in 1991, the 

Board became aware that many houses in the County had cracked 

foundations caused by the use of improper construction methods 

for building in soil having a high clay content. This type of 

soil is commonly referred to as "shrink/swell" soil. Dupler 

stated that special construction methods are necessary for 

building in this type of soil because the soil places greater 

than normal stress on foundations, since the soil expands when 

wet and contracts when dry. Dupler testified that the cracked 

foundations were evidence of possible violations of the Uniform 

Statewide Building Code (building code). 

 To address this problem, the Board directed the County 

Administrator to appoint a task force to work with the Building 

Inspection Department to develop a program which became known as 

the Citizen's Assistance Program, Phase I (CAP I). The Board 
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enacted the CAP I program in 1993. 

 CAP I provided for an ombudsman to render "assistance to 

citizens in resolving shrink/swell soil [problems] and other 

construction related issues." CAP I also included a provision 

authorizing the hiring of legal advisors to offer free advice to 

affected homeowners regarding their available legal remedies. 

 Under CAP I, homeowners who suspected that their houses had 

been constructed on "shrink/swell" soil could submit applications 

requesting the County to examine their house foundations. CAP I 

authorized the County to obtain the assistance of privatelyemployed engineers to work on these requests. 

 Dupler testified that the private engineering assistance was 

necessary because the County staff was unable to handle the large 

volume of homeowner requests for investigations. He also stated 

that his department did not have the necessary laboratory 

facilities to analyze the soil removed from the homeowners' 

building foundation sites. 

 Dupler further stated that, before he retained a private 

engineer to provide a foundation study of an existing house, his 

department would review the homeowner's CAP application to 

determine whether the house had foundation cracks. If Dupler 

noted conditions indicating a potential building code violation, 

he retained a private engineer on behalf of the County to 

determine the nature and extent of foundation damage due to 

"shrink/swell" soil. The engineer then prepared a report, for 
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the homeowner and the County, detailing the extent of damage, the 

recommended repairs, and an estimated cost of repair. 

 Although Dupler testified that the reports frequently 

contained evidence of building code violations, he stated that 

his department had not instituted criminal enforcement actions 

because such actions would have been barred by the statute of 

limitations. However, Dupler used the engineering reports to 

determine whether a homeowner's proposed repair plans met 

building code requirements and, thus, qualified for the issuance 

of a repair permit. 

 The engineering assistance portion of CAP I was funded from 

the $125 increase in permit fees authorized by the ordinances. 

The ombudsman and legal advisor portions of CAP I were paid for 

out of the general fund and application fees, because these 

services were not part of the building code enforcement process. 

 The Board later terminated CAP I and adopted a program known 

as CAP II, which was limited to providing engineering assistance 

to the Building Official. Under CAP II, the private engineers 

hired by the County performed essentially the same functions as 

the engineers hired by the County under CAP I. 

 The engineers' reports did not contain any repair 

specifications and, therefore, could not be used by the 

homeowners' contractors to perform the necessary repair work. 

The homeowners were required to retain engineers at their own 

expense to draw foundation repair specifications, which were 
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submitted to the County with their applications for building 

repair permits. 

 After the Building Official issued a repair permit, the 

homeowner's contractor performed the necessary repairs using the 

homeowner's repair plan. When the repairs were completed, the 

Building Official conducted a final inspection to determine 

whether the repairs had corrected the building code violation. 

 Like the engineering assistance provided by CAP I, the 

engineering assistance provided by Cap II was funded by the 

Board's adoption of an ordinance which increased by $125 the fee 

charged for new residential building permits. The balance of the 

permit fee was computed by use of a unit charge of $4.25 for each 

$1,000, or fraction thereof, of the estimated construction cost. 

 The trial court also received evidence concerning the 

builders' contention that the total permit fees exceeded the 

actual costs necessary to enforce the building code. Their 

allegations were based on the results of an audit of the 

Chesterfield Building Inspection Department (BID) commissioned by 

the Board. The audit, performed by the accounting firm of 

Coopers & Lybrand in December 1992, indicated that, between 1981 

and 1992, BID's revenues exceeded its costs by almost $2,000,000. 

 The Board presented evidence that the Coopers & Lybrand 

audit did not include the total expenditures relating to building 

code enforcement. Specifically, Dupler, James J.L. Stegmaier, 

the County's Budget Director, and Christine Zitzow, a cost 
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accounting expert, testified that, in order to ascertain the true 

cost of building code enforcement, the enforcement-related costs 

of three other County departments needed to be added to BID's 

expenses. 

 The three departments, Utilities, Fire, and Environmental 

Engineering, review all building plans and perform building 

inspections for the Building Official relating to building code 

requirements that are within those departments' expertise. The 

cost of these reviews and inspections were not reflected in the 

Coopers & Lybrand audit because the audit included only BID 

budget documents. Stegmaier testified that the revenues received 

by the County from the building permit fees, including the 

increases authorized by the fee ordinances, were less than the 

total cost of building code enforcement in 1993 and 1994. 

 Finally, the evidence showed that the Association does not 

build houses in Chesterfield County and has not paid any building 

permit fees such as those at issue in this suit. The Association 

is a nonstock corporation, which functions as a trade association 

and has members who are homebuilders in Chesterfield County. 

 The trial court initially ruled that the Association had 

standing to bring this action "in a representative capacity." 

The court also sustained the County's demurrer to Count III, 

ruling that the ordinances in question were not special laws 

within the meaning of Article IV of the Virginia Constitution. 

 The trial court granted the defendants' motion in limine to 
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exclude evidence of the Board's minutes taken at the time the 

ordinances were passed. The court stated that, because the fee 

ordinances adopted by the Board were unambiguous, an examination 

of the Board's legislative intent was not appropriate. After 

considering the evidence presented, the trial court held that the 

CAP ordinances were valid, and that the County did not charge 

building permit fees in excess of the cost of building code 

enforcement. 

 On appeal, we first consider the assignment of cross error 

raised by the Board and Dupler (collectively, the County), that 

the trial court erred in ruling the Association had standing to 

bring this declaratory judgment action. The County argues that 

the Association does not have any rights which are affected by 

the ordinances, and that the Association is not authorized by law 

to bring this action on behalf of its member builders. 

 In response, the Association argues that, as a nonstock 

corporation which operates as a trade association for the common 

benefit of its members, the Association has standing to bring 

this suit. The Association notes that its status as a nonstock 

corporation permits it to sue or be sued in its corporate name. 

See Code § 13.1-826. The Association further argues that the 

declaratory judgment statutes are remedial in nature and must be 

liberally interpreted. See Code § 8.01-191. Thus, the 

Association asserts that it is a proper party to this declaratory 

judgment action. We disagree with the Association. 
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 A plaintiff has standing to institute a declaratory judgment 

proceeding if it has a "justiciable interest" in the subject 

matter of the proceeding, either in its own right or in a 

representative capacity. Henrico County v. F. & W., Inc., 222 

Va. 218, 223, 278 S.E.2d 859, 862 (1981); Lynchburg Traffic 

Bureau v. Norfolk and Western Railway, 207 Va. 107, 108, 147 

S.E.2d 744, 745 (1966). In order to have a "justiciable 

interest" in a proceeding, the plaintiff must demonstrate an 

actual controversy between the plaintiff and the defendant, such 

that his rights will be affected by the outcome of the case. See

Code § 8.01-184; Cupp v. Board of Supervisors, 227 Va. 580, 589, 

318 S.E.2d 407, 411 (1984). 

 Here, the Association has failed to demonstrate that it has 

any rights that will be affected by the outcome of this case. 

The Association does not build houses in Chesterfield County and 

has not paid any building permit fees for new residential 

construction. Thus, the Association has not shown that an actual 

controversy exists between it and the County. 

 This conclusion is not altered by the fact that the 

Association purports to act in a "representative capacity" on 

behalf of its members. An individual or entity does not acquire 

standing to sue in a representative capacity by asserting the 

rights of another, unless authorized by statute to do so. See,

e.g., Code §§ 8.01-69, 20-88.45, 37.1-141. Therefore, we 

conclude that the trial court erred in ruling that the 
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Association had standing to bring this action. Nevertheless, 

since W. S. Carnes, Inc. (Carnes) paid several building permit 

fee surcharges to Chesterfield County, the present action remains 

viable based on the controversy existing between Carnes and the 

County. See Cupp, 227 Va. at 589-90, 318 S.E.2d at 411. 

 We next consider Carnes's argument that the trial court 

erred in sustaining the County's demurrer to Count III of the 

motion for judgment, which alleged that the fee ordinances 

violate "the prohibition against special laws contained in 

Article IV, Sections 14 and 15, of the Constitution of Virginia." 

 Carnes argues that the issue whether the ordinances were special 

laws was a matter for proof at trial, not susceptible of 

disposition as a matter of law. We disagree. 

 A demurrer will be sustained if the pleading, considered in 

the light most favorable to the plaintiff, fails to state a valid 

cause of action. See Luckett v. Jennings, 246 Va. 303, 307, 435 

S.E.2d 400, 402 (1993); Hop-In Food Stores, Inc. v. Serv-N-Save, 

Inc., 237 Va. 206, 209, 375 S.E.2d 753, 755 (1989). A demurrer 

tests only the legal sufficiency of a pleading, not matters of 

proof. Luckett, 246 Va. at 307, 435 S.E.2d at 402; Cox Cable 

Hampton Rds., Inc. v. City of Norfolk, 242 Va. 394, 402-03, 410 

S.E.2d 652, 656 (1991). The facts admitted on demurrer are those 

expressly alleged in the motion for judgment, those which fairly 

can be viewed as impliedly alleged, and those which can be 

reasonably inferred from the facts alleged. Rosillo v. Winters, 
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235 Va. 268, 270, 367 S.E.2d 717, 717 (1988). 

 We conclude that the trial court properly sustained the 

County's demurrer, because the fee ordinances are general, rather 

than special, laws.2

 "A law is general though it may immediately 

affect a small number of persons, places or things, provided, 

under named conditions and circumstances, it operates alike on 

all who measure up to its requirements." Bray v. County Board, 

195 Va. 31, 36, 77 S.E.2d 479, 482 (1953) (quoting Gandy v. 

Elizabeth City County, 179 Va. 340, 344, 19 S.E.2d 97, 99 

(1942)). By contrast, a law is "special" in a constitutional 

sense when it contains an inherent limitation that arbitrarily 

separates some persons, places, or things from those on which, 

without such separation, it would also operate. Id. at 36-37, 77 

S.E.2d at 482. 

 Here, the fee ordinances are general laws because, by their 

plain wording, they operate alike on any individual or entity who 

obtains a building permit for new residential construction. This 

result is not changed by Carnes's allegation in Count III that 

the underlying purpose of the fee ordinances was to benefit 

County residents who had sustained certain damage to their homes. 

 The alleged purpose of the fee ordinances cannot change their 

 

 2Based on this conclusion, we do not reach the issue whether 

Va. Const. art. IV, §§ 14-15, is applicable to the passage of 

local ordinances. 
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content or effect. 

 Carnes next argues that the trial court erred in granting 

the Board's motion in limine and in excluding from evidence all 

minutes of the Board meetings, except actual motions, 

resolutions, ordinances, and the votes cast on those items. 

Carnes contends that the excluded minutes would have provided "a 

clearer understanding of the purpose and the intent" of the 

ordinances. 

 We conclude that the trial court properly excluded the 

proffered evidence of the Board's minutes. Generally, evidence 

of the Board's intent or motive in enacting ordinances is 

irrelevant to our consideration whether they are valid laws. As 

this Court stated in Blankenship v. City of Richmond, 188 Va. 97, 

49 S.E.2d 321 (1948), 

 [c]ourts are not concerned with the motives which 

actuate members of a legislative body in enacting a 

law, but in the results of their action. Bad motives 

might inspire a law which appeared on its face and 

proved valid and beneficial, while a bad and invalid 

law might be, and sometimes is, passed with good intent 

and the best of motives. 

Id. at 105, 49 S.E.2d at 325 (citations omitted). 

 We next consider Carnes's arguments that the fee ordinances 

are invalid. The trial court's rulings were based on its 

application of the evidence to the three statutes cited by 

Carnes. Under Code § 8.01-680, the trial court's judgment will 

not be set aside unless it appears from the evidence that the 

judgment is plainly wrong or without evidence to support it. 
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Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 57, 419 S.E.2d 

627, 630 (1992). Since the trial court heard the evidence ore 

tenus, its factual findings are entitled to the same weight as a 

jury's verdict. RF&P Corporation v. Little, 247 Va. 309, 319, 

440 S.E.2d 908, 915 (1994). Thus, on appeal we examine the 

evidence in the light most favorable to the County, the 

prevailing party at trial, and determine whether the evidence 

supports the trial court's decision. See Ravenwood Towers, Inc., 

244 Va. at 57, 419 S.E.2d at 630. 

 Carnes first contends that the fee ordinances violate Code 

§ 36-105, which provides, in relevant part, that "[building 

permit] [f]ees may be levied by the local governing body in order 

to defray the cost of [building code] enforcement and appeals." 

During oral argument in this case, Carnes contended that such 

enforcement is limited to the criminal prosecution and appeal of 

building code violations. We disagree. 

 The Building Official has many duties, only one of which is 

to prosecute building code violations under USBC § 112.3. The 

Building Official is also charged with responsibility for 

examining all plans and applications for building permits (USBC 

§ 105.6), issuing permits when satisfied that the proposed work 

conforms to building code requirements (USBC § 109.1), and 

conducting inspections to ensure compliance with the building 

code (USBC § 110.1). Under USBC § 103.3, the Building Official 

may delegate these duties and powers. 
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 Here, the evidence showed that the engineering assistance 

funded by the fee ordinances was necessary to enable the Building 

Official to perform these enforcement-related duties. The 

ombudsman and legal services provided under CAP I also did not 

violate Code § 36-105 because those services were paid for out of 

the general fund, rather than from the permit fee increases. 

Thus, the trial court's finding that the fee ordinances do not 

violate Code § 36-105 is supported by the evidence. 

 We next hold that the record supports the trial court's 

finding that the fee ordinances do not violate USBC § 104.3, 

which provides, in relevant part, that "local government[s] shall 

establish a [building permit] fee schedule. The schedule shall 

incorporate unit rates which may be based on square footage, 

cubic footage, cost of construction or other appropriate 

criteria." The evidence showed that the County's building permit 

fees incorporate both the $125 flat fee and a unit rate of $4.25 

for each one thousand dollars of estimated construction cost. 

This provision complies with USBC § 104.3, because that section 

requires only that the fee schedule incorporate unit rates, not 

that it be based exclusively on unit rates. 

 We also conclude that the record supports the trial court's 

finding that the fee ordinances do not violate Code § 15.1-

37.3:9(B), which permits a local governing body to enact an 

ordinance authorizing the use of public funds to repair 

foundation failures caused by "shrink/swell" soil. The statute 
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provides that public funds expended for this purpose shall be 

derived only from tax revenues from real and personal property, 

not from any special fee, assessment, or other tax or charge. 

The statute also states that localities "may not use fees 

collected for building permits . . . directly or indirectly, for 

purposes authorized under this subsection." 

 The evidence showed that the engineering reports funded by 

the permit fees under the CAP programs were not used to repair 

foundation failures, but were used to help the Building Official 

ascertain building code compliance during the various stages of 

the homeowners' repair efforts. Thus, the expended funds were 

not used, directly or indirectly, for purposes prohibited by Code 

§ 15.1-37.3:9(B).3

 Carnes next contends that the trial court erred in finding 

that the building permit fees did not exceed the cost of building 

code enforcement and appeals. Carnes relies on the results of 

the audit conducted by Coopers & Lybrand in support of its 

position. We disagree with Carnes's contention. 

 As stated above, the Coopers & Lybrand audit did not include 

 3Based on this conclusion, we need not address Carnes's 

argument that, prior to the enactment of Code § 15.1-37.3:9(B) in 

July 1993, a local governing body did not have the authority to 

expend public funds to repair existing foundations damaged due to 

"shrink/swell" soil. 
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all costs of building code enforcement, nor did the audit cover 

the time frame in which the CAP programs operated. Additionally, 

Stegmaier's testimony showed that building code enforcement costs 

for the years 1993 and 1994 had exceeded the building permit fees 

collected in those years. Thus, we hold that the evidence 

supports the trial court's ruling that the expenditures funded by 

the fee ordinances were rationally related to the cost of 

building code enforcement. 

 For these reasons, we will affirm in part, and reverse in 

part, the trial court's judgment and enter final judgment in 

favor of the County. 

 Affirmed in part,

reversed in part,

and final judgment.