BZA Appeals and Litigation Resulting
from Such Appeals
LGA Regional Seminar
Winchester, Virginia
June 28, 2013
J. Patrick Taves, Esquire
Greehan, Taves, Pandak & Stoner PLLC
14520 Avion Parkway, Suite 210
Chantilly, Virginia 20151
(703)378-5770
William M. Macali
Deputy City Attorney
Office of the City Attorney
Building 1, Room 260
2401 Courthouse Drive
Virginia Beach, Virginia 23456
(757) 385-8200
The authors wish to acknowledge
Daniel J. Wisniewski, Associate,
Greehan, Taves, Pandak & Stoner, PLLC,
for his assistance in preparing this outline.
Appeals of Administrative
Zoning Decisions to the BZA
Statutory Authorization for BZAs
• A BZA is a “creature of statute.” Adams Outdoor
Adv., Inc. v. Bd. of Zoning Appeals, 261 Va. 207, 544 S.E.2d 315
(2001).
• Va. Code §§ 15.2-2308 to -2314.
• These statutes come from the Standard State
Zoning Enabling Act (circa 1927).
What Can Be Appealed
• Any order, requirement, decision or determination
made by an “administrative officer.” § 15.2-2309(1).
• Note: PODs and site plans are different! They operate
under the statutes applicable to subdivision plat review
“mutatis mutandis.” See § 15.2-2258. Challenges to POD
and site plan disapprovals are therefore brought
directly to the circuit court. §§ 15.2-2259(D) (PODs and site
plans), -2260(E) (site plans only), and -2261(B)(2) (site plans only).
• PODs and site plans gain vested rights status
upon being approved, whereas other decisions,
orders, etc., must be no longer subject to appeal or
no longer subject to change, modification, or
reversal pursuant to 15.2-2311(c), before vesting.
• Decisions of the zoning administrator after notice
and hearing. § 15.2-2309(3).
Why Appeal to the BZA?
• If you do not appeal, the matter becomes a “thing
decided and not subject to attack.” Gwinn v. Alward,
235 Va. 616, 621, 369 S.E.2d 410, 412 (1988).
• You must first “exhaust adequate and available
administrative remedies.” Gayton Triangle Land Co. v.
Bd. of Supervisors, 216 Va. 764, 766–67, 222 S.E.2d 570, 572
(1976).
• But where there is “no administrative remedy
equal to the relief sought” then appeal to the BZA is
not required. Town of Jonesville v. Powell Valley Vill. Ltd.
P’ship, 254 Va. 70, 74, 487 S.E.2d 207, 210 (1997) (BZA does not
have authority to declare zoning ordinances invalid).
Who Can Appeal to the BZA?
• Any “person aggrieved” can appeal. § 15.2-2311(A).
• Appellant “must show that he has an immediate,
pecuniary and substantial interest in the [matter],
and not a remote or indirect interest.” Va. Beach
Beautification Comm’n v. Bd. of Zoning Appeals, 231 Va. 415,
419, 344 S.E.2d 899, 902 (1986).
• The statute contemplates a “substantial grievance
and means a denial of some personal or property
right, legal or equitable, or the imposition of a
burden or obligation . . . different from that suffered
by the public generally.” Id. (emphasis added); accord
Virginia Marine Res. Comm’n v. Clark, 281 Va. 679, 687, 709
S.E.2d 150, 155 (2011).
Who Can Appeal to the BZA?
• “Person Aggrieved”: A Two-Step Test. See Friends of
the Rappahannock v. Bd. of Zoning Appeals, 2013 WL 2443349,
Record No. 120874 (June 6, 2013).
1. Ownership or Occupancy of Nearby Land
2. Particularized Harm Different from the General
Public
• Note: Local governing bodies have standing
because they have an “immediate and substantial
interest” in the ordinance. Bd. of Supervisors v. Bd. of
Zoning Appeals (Hickerson), 268 Va. 441, 604 S.E.2d 7 (2004).
Who Can Appeal to the BZA?
• The statute also allows any officer, department,
board, or bureau of the locality affected by an
administrative decision to appeal. § 15.2-2311(A).
• A Zoning Administrator is not required to appeal
their own incorrect decision to the BZA in order to
change it. Gwinn v. Collier, 247 Va. 479, 482, 443 S.E.2d 161,
163 (1994).
Pleading Aggrievement
• Grounds for aggrievement must be affirmatively
plead.
• “Conclusory” allegations are not enough.
• Must present a “factual background” sufficient
to show that the particular decision being
appealed would cause the loss of some personal
or property right different from the public in
general. Friends, 2013 WL 2443349.
Pleading Aggrievement in Friends
• In Friends, the Court held that the following
“general objections” to a permit allowing a sand and
gravel mining operation were insufficient (i.e.,
plaintiffs were not “aggrieved”):
• Land disturbance, noise, and industrial activity
will frighten away the wildlife.
• The operation will end scenic beauty of the
location.
• Activities will increase noise, dust, and traffic
from barges and commercial boats.
• Use will harm their recreational use of the river
for wading and observing wildlife.
• Concern about the long term health and well
being of children nearby, one of whom had
asthma.
Case Law Principles Also
Apply to Appeals to BZAs
• Cases discuss appeals to the circuit court from the
BZA.
• Logically, these principles also apply to appeals to
the BZA.
• There is no statutory provision for waiver of the
“person aggrieved” standing requirement.
When Must the Appeal be Taken?
• Within thirty days of the issuance of:
1. A written notice of a zoning violation (NOV) or
a written order of the Zoning Administrator.
or
2. Any other decision of the Zoning
Administrator or other administrative officer
that is not an NOV or a written order.
What’s the difference?
When Must the Appeal be Taken?
• For a written notice of a NOV or a written order of
the Zoning Administrator, the following statements
must be included with the notice/order:
1. Recipient may have a right to appeal within 30
days.
2. The Decision shall be final and unappealable if
not appealed within 30 days.
3. The applicable appeal fee.
4. Where additional information may be obtained
regarding an appeal.
§ 15.2-2311(A).
When Must the Appeal be Taken?
•For NOVs localities have more leeway in
prescribing shorter appeal periods for certain
violations:
Notwithstanding the provisions of § 15.2-2311, a
zoning ordinance may prescribe an appeal period
of less than 30 days, but not less than 10 days,
for a notice of violation involving temporary or
seasonal commercial uses, parking of
commercial trucks in residential zoning districts,
maximum occupancy limitations of a residential
dwelling unit, or similar short-term, recurring
violations.
§ 15.2-2286(A)(4) (emphasis added).
When Must the Appeal be Taken?
• For any other decision of the Zoning Administrator
or other administrative officer there are no required
notice statements, and the 30 day clock starts on the
date of decision. See § 15.2-2311(A).
•
•
These decisions can be made orally. See Lilly v.
Caroline County, 259 Va. 291, 296, 526 S.E.2d 743, 745
(2000).
HOWEVER, written decisions are preferred,
and it is better practice to include the required
statements for NOVs and written orders in
anything that could be construed to be an
appealable decision.
How to Give Written Notice
• For NOVs or written orders, registered or certified
mail or posting is sufficient.
• For other decisions, there is no statutory guidance
for the notice method, but registered or certified
mail, or service in person, is recommended.
§ 15.2-2311(A).
How Must an Appeal be Taken?
• By filing with the zoning administrator and the BZA
a “notice of appeal specifying the grounds thereof.”
• Must be included:
1. Bases for aggrieved status.
2. Substantive bases for the appeal.
See § 15.2-2311(A).
The “Stay” Provisions
• An appeal stays “all proceedings in furtherance of
the action appealed from,” unless the zoning
administrator certifies to the BZA that a stay would
in his opinion cause imminent peril to life or
property.
• The stay provisions apply to zoning enforcement
actions, not where someone has received a
favorable decision from the zoning administrator
See § 15.2-2311(B).
The 60 Day Deadline Provision
• After sixty days, no “change, modification, or
reversal” can be made to a written order,
requirement, decision, or determination by the
administrator if the person aggrieved has already 1)
materially changed his position, 2) in good faith
reliance.
• Exceptions:
1. The decision was obtained through
malfeasance or fraud.
2. For the correction of clerical errors, where the
attorney for the governing body concurs.
See § 15.2-2311(C).
When the BZA Hears the Appeal
• The BZA has 90 days to render a decision. But see Tran v.
Bd. of Zoning Appeals, 260 Va. 654, 536 S.E.2d 913 (2000) (90-day
period is directory, not mandatory).
• A majority vote is required to overturn an administrative
decision.
• The BZA Chair can administer oaths and compel
attendance of witnesses.
• Consistent administrative interpretations of an
ordinance by the officials charged with its enforcement
are entitled to great weight. Masterson v. Bd. of Zoning
Appeals, 233 Va. 37, 353 S.E.2d 727 (1987).
See § 15.2-2312.
Consistent Administrative Interpretation
• Zoning Administrators and BZAs “develop
expertise in the relationship between particular
textual language and a local government’s overall
zoning plan.” Lamar Co., LLC v. Bd. of Zoning Appeals, 270
Va. 540, 620 S.E.2d 753 (2005).
• But Zoning Administrators do not get any special
deference in their interpretation of textual language
when the ordinance language is plain and
unambiguous. See Bd. of Zoning Appeals v. 852 L.L.C., 257
Va. 485, 514 S.E.2d 767 (1999).
Bd. of Zoning Appeals v. 852 L.L.C.
257 Va. 485, 514 S.E.2d 767 (1999)
• Rule: There is no room for interpretation or
construction of zoning ordinances when the ordinance
language is plain and unambiguous.
• Facts: Zoning Administrator awarded an 18.6% density
credit for an existing lake on a landowner’s property
when the locality’s zoning ordinance only allowed for
either a 0%, 50%, or 100% credit (depending on the type
of body of water: existing lake, tidal wetland, or
stormwater management pond).
• Held: The Zoning Administrator did not have the
authority to interpret the zoning ordinance to provide for
a reduced density credit because the ordinance was
clear and unambiguous.
Equitable Principles and the BZA
• Equitable concerns cannot be a basis for the BZA’s
decision in an administrative appeal. Bd. of
Supervisors v. Bd. of Zoning Appeals, 271 Va. 336, 351, 626
S.E.2d 374, 383 (2006).
• Rationale applicable to the 852 L.L.C. case.
The Safety Valve
• A narrow safety valve exists for neighbors if they
did not appeal a decision: Va. Code § 15.2-2313.
• If a building permit is issued, and abatement of
construction is sought, then an aggrieved neighbor
must satisfy several requirements:
1. Cannot have had actual notice of the building
permit,
2. There must be a violation of the zoning
ordinance, and
3. Suit must be filed within 15 days of the start of
construction.
Appeals of BZA Decisions
to the
Circuit Court
Initial Observations:
1.
The controlling statute, Va. Code §15.22314, is not a model of clarity. It leaves some
open questions concerning procedures in
appeals of BZA decisions to the Circuit Court.
2.
In light of the above, local practices may
vary from locality to locality. Needless to say,
when in doubt, check the local practice.
Va. Code §15.2-2314. Certiorari to review
decision of board.
•
Initiated by filing Petition for Writ of Certiorari
with Clerk of the Circuit Court
•
Styled "In Re: [date] Decision of the Board of
Zoning Appeals of [locality name]"
•
Must specify the grounds on which petitioner is
aggrieved
•
Must be filed within 30 days after the date of the
final decision of the Board (not when the
decision is filed)
A “final decision” of the BZA is one that resolves the
merits of an appeal or application before the BZA or
dismisses them with prejudice on a procedural basis. West
Lewinsville Heights Citizens Ass’n v. Board of Zoning
Appeals, 270 Va. 259 (2005).
Failure to timely file an appeal of the BZA’s decision is a
bar to the action. Id. However, if a PWC is timely filed but
does not name all necessary parties, the action is not
barred, as the 30-day time limit is not a statute of
limitations. Parker v. Miller, 250 Va. 175 (1995).
The 30-day rule is not an aspect of subject matter
jurisdiction, and failure to file within 30 days is thus waived
if not asserted in the trial court. Board of Supervisors v.
Board of Zoning Appeals, 271 Va. 336 (2006).
Upon the “presentation” of a Petition for Writ of
Certiorari:
Court shall allow a Writ of Certiorari to review the
decision of the board
(Note that “certiorari,” i.e., bringing up the record for
review by a higher body, generally refers to a
discretionary grant of review – not here, though)
Practice note: The Writ should be tendered to the Clerk along
with the Petition. Some clerks may just attach a Notice of
Motion for Judgment requiring a response if no Writ is filed,
but the better practice is to tender a Writ along with the
Petition.
The court shall prescribe in the Writ the time within which a
Return must be made, which shall not be less than 10 days
and may be extended by the court.
The statute does not say when the time begins (i.e., when
the writ is entered or served?).
Practice notes:
1.
Read the Writ and object to anything improper (e.g., discovery in
disguise).
2.
If you are not the Petitioner, and time is short, few attorneys will
object to an extension of time, but if they do, the court can
extend the date. Don’t accept a 10-day return period; that is
ridiculous.
The statute does not say who the Writ of Certiorari is to be
served upon (presumably, upon the necessary parties,
which does not include the BZA).
Practice note: Since the Writ is essentially an order to
file the papers acted upon by the BZA, one would think
that the service of the Writ should be on the BZA. The
best practice is to serve the BZA as well the necessary
parties, and get on with the case. Of course, unless you
are challenging the BZA’s decision, you won’t have that
option – the Petitioner will.
.
The return consists of certified or sworn copies of the
papers acted upon by the BZA in making its decision or
the portions thereof as may be called for by the Writ.
Practice note: Just file all of the papers, even those not specified
in the Writ, and be done with it.
The Return shall “concisely set forth such other facts
as may be pertinent and material to show the grounds
of the decision appealed from” and shall be verified.
A statement that the BZA relied on its view of the property can,
and in many cases, should, be included in the Return.
The statute is also silent on responsive pleadings to be
filed by the Respondents (which, depending on who
brought the appeal to the BZA and who won the case,
could be the governing body, the landowner and/or
another aggrieved person).
Practice note: one approach is simply for them to file an
Answer or other responsive pleading (e.g., plea in bar).
Or, if they are not named in the Petition, they can
intervene (discussed later). In Virginia Beach, at least, the
accepted practice is to file the BZA’s papers with the
Return and to assert defenses in a separate Answer or
Plea in Bar.
This aspect of BZA appeals, like so much else, is probably
something in which local practice differs from locality to
locality.
Very important: the BZA has no authority to rule
on the validity or constitutionality of the ordinance
underlying the appeal. BZA v. University Square
Assocs., 246 Va. 290 (1993).
In this case, the ordinance consisted of a special
use permit, but the holding clearly applies to the
zoning ordinance text itself.
Service of the return is upon the secretary of the BZA or,
if none, the chair.
The statute requires that service of the return is to be on
the BZA. Thus, since the return is basically comprised of
the BZA papers, the BZA is required to serve its papers
on itself.
Prior to 2010, service of the return was to be made on the
“relator’s” (i.e., Petitioner’s) attorney. See 2010 Acts of
Assembly Ch. 241. This obviously made more sense
(assuming the relator’s attorney includes a pro se
relator).
Best practice – just serve all of the parties and get on with
the case.
Necessary Parties (per §15.2-2314)
• Governing body (why not the administrative
officer who made the decision appealed from
instead of the governing body?)
• Landowner
• Applicant before the BZA
The Board “shall not” be a party to the proceedings, but
“shall participate in the proceedings to the extent
required by this section.”
The Court may permit intervention by “any other
person or persons jointly or severally aggrieved”
by the decision
The filing of a PWC or issuance of the WC does not stay
proceedings upon the decision appealed from, but the
court may, on application, on notice to the board and on
due cause shown, grant a restraining order.
Practice note: The automatic stay under §15.2-2312 ends as soon as
the BZA decides the case, such that if you seeks to maintain the
status quo ante, you will need to apply to the Court for a restraining
order.
•
At least one court has applied the familiar test in Blackwelder
Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977) in granting
a restraining order. Wahrhaftig v. Artman, 73 Va. Cir. 37 (2007).
Q. Why, if the Board is not a party and not the one enforcing the
ordinance, is notice given to it instead of the administrative
officer?
Practice note: serve everybody in the case and the BZA
Standing
A BZA decision may be appealed by:
(1)
Any person or persons jointly or severally aggrieved
by any decision of the board of zoning appeals; or
(2)
Any aggrieved taxpayer; or
(3)
Any officer, department, board or bureau of the
locality
Specifying the grounds aggrieved
The Petitioner must affirmatively show that he has standing (i.e.,
is “aggrieved”):
• Direct interest in the subject matter of the proceeding;
• An immediate, pecuniary and substantial interest in the
litigation, and not a remote or indirect interest;
• Denial of a right or imposition of a burden different from
that suffered by the public generally
• Not sufficient that the sole interest of the petitioner is
to advance some perceived public right or to redress
some anticipated public injury when the only wrong he
has suffered is in common with other persons similarly
situated.
Virginia Beach Beautification Comm’n, 231 Va. 415, 419-20.
A BOS is an aggrieved person within the meaning of Code § 15.22314, and thus has standing to challenge a decision of a BZA.
Board of Supervisors v. Board of Zoning Appeals, 268 Va.
441 (2004) (no discussion of standing of officers, etc. of locality)
New case - Friends of the Rappahannock.
Note: the Court said that “aggrieved person” status derives from
the fact that the Board of Supervisors has a strong interest in the
valid implementation of its zoning authority, which is a police
power conferred upon the County by the Commonwealth
It also held that a BOS is a “person” within the meaning of the
statue. Id. at 445
Q. In light of the disjunctive structure of the statute (any aggrieved
person OR any taxpayer OR any officer, department, board or
bureau of the locality [may appeal a BZA decision]), is the
aggrievement requirement applicable to taxpayers and officers,
etc. of a locality or does the statute say they can appeal just
because of their status as such?
A. There are no reported cases on this issue. But the fact that the
Court in the 2004 BOS v. BZA case was careful to explain why
the BOA was aggrieved suggests that the Court did not find the
BOS’s mere status sufficient to confer standing. It could have
simply pointed to the 3rd clause of the statute.
Practice note: The only likely appellants from a locality (e.g., the
ZA) are those that would be aggrieved, anyway, by reason of their
enforcement duties. But it might be an issue with “taxpayers” who
are not otherwise aggrieved. Reasonable people may disagree (and
have done so)
The Virginia Supreme Court has ruled that even the Zoning
Administrator lacks standing to appeal a BZA decision unless
authorized to do so by the governing body. Wolfe v. Board of Zoning
Appeals, 260 Va. 7 (2000). The Court rejected the argument that the
language of §15.2-2286(A)(4) allow the ZA to appeal without
authorization from the BOS. Wolfe has some odd facts and may be
distinguishable from the usual case.
The statute says:
The zoning administrator shall have all necessary authority on behalf of the
governing body to administer and enforce the zoning ordinance. His authority
shall include (i) ordering in writing the remedying of any condition found in
violation of the ordinance; (ii) insuring compliance with the ordinance,
bringing legal action, including injunction, abatement, or other appropriate
action or proceeding subject to appeal pursuant to § 15.2-2311.
Fairfax County’s ordinance essentially tracked this language, but the
Court ruled that the phrase “on behalf of the governing body”
required authorization for the ZA to appeal (not necessarily in every
case).
Q.
In order to be “aggrieved”, does a person have to
appear before the BZA in the matter being appealed?
A.
Once again, the law is unsettled. The statute is
silent, and there are no cases on point. Probably not
a bar to appeal, so long as the party seeking to
appeal meets the standing requirements.
For what it’s worth, in an unreported VB Circuit Court case, even
the ZA was barred from appealing a BZA decision because he did
not object to a variance application before the BZA.
However, the appeal to the Circuit Court is limited to the
issues before the BZA.
Presumptions & Burden of Proof
• §15.2-2314 distinguishes between cases involving
variances and those involving appeals of ZA and other
officers’ determinations
Appeal cases:
• Findings and conclusions of the board of zoning
appeals on questions of fact shall be presumed to
be correct, but may be rebutted by a preponderance
of the evidence (including BZA record) showing
BZA erred in its decision. Any party may introduce
evidence
• On questions of law, proceeding is de novo (no
presumption BZA decision is correct)
Presumptions re Zoning Administrator’s Decisions
• Masterson v. BZA, 233 Va. 37 (1987) (“consistent administrative
construction of an ordinance by the officials charged with its
enforcement entitled to great weight”). The Court noted:
While this rule is more often applied to cases in which the
administrative construction has continued and been
acquiesced in for a long period of time, it is not confined to
such cases. Id. at 44.
• Wolfe v. BZA, 260 Va. 7, 19 (2000) (determination of the Zoning
Administrator presumed to be correct) (citing Crestar Bank v.
Martin, 238 Va. 232, 236 (1989)).
Practice note – does the presumption survive the new “de novo”
standard the 2006 amendments?
On appeal to the Supreme Court, the rule has been that a
circuit court decision affirming a board of zoning appeals
determination is accorded the same presumption of
correctness as an appeal to the BZA. Natrella v. Board of
Zoning Appeals, 231 Va. 451 (1986).
Question:
given the fact that the 2010 amendments
ended the presumption of correctness in appeals to the
BZA, is there still a presumption of correctness to the trail
court’s decision?
Incidents of trial
Evidence
Per §15.2-2314:
If, upon the hearing, it shall appear to the court that testimony is
necessary for the proper disposition of the matter, it may take
evidence or appoint a commissioner to take evidence.
The 2003 amendments added the following language to the statute:
The appealing party may rebut that presumption by proving by a
preponderance of the evidence, including the record before the
board of zoning appeals, that the board of zoning appeals erred in its
decision. Any party may introduce evidence in the proceedings in
the court. The court shall hear any arguments on questions of law de
novo.
It would appear, then, that the taking of evidence would be allowed in
all but the exceptional case.
Findings of fact by the BZA are “crucial.” Hendrix v.
Board of Zoning Appeals, 222 Va. 57 (1981):
The General Assembly intended “that the record
transmitted on certiorari (pursuant to Code § 15.1-497)
reflect the findings underlying the board's decision. If it
does not, the parties cannot properly litigate, the circuit
court cannot properly adjudicate, and this Court cannot
properly review the issues on appeal." Id. at 60 (citing
Packer v. Hornsby, 221 Va.117,121 (1980)).
The court may reverse or affirm, wholly or
partly, or may modify the decision brought up
for review
Practice note: As BZA appeals are just that –
appeals – the Court surely may remand a case
back to the BZA, especially if the BZA’s
findings are insufficient
Nonsuits
• Not available in a BZA appeal to Circuit Court. Board of
Zoning Appeals v. Board. of Supervisors, 275 Va. 452
(2008) (holding that the nonsuit statute applies to trial
proceedings, not proceedings in the nature of an appeal,
such as a petition for certiorari filed pursuant to Code §
15.2-2314)
Costs:
• Not allowed against the BZA unless it acted in bad faith
or with malice in making the decision appealed from.
• If BZA decision is affirmed and the court finds that the
appeal was frivolous, the court may order petitioners to
pay the costs incurred in making the return.
• If the petition is withdrawn subsequent to the filing of
the return, the BZA may request that the court hear the
matter on the question of whether the appeal was
frivolous.