Bd. of Zoning Appeals v. Kahhal

• Decision Date: 17 April 1998
• Docket Number: Record No. 971655.
• Court: Virginia Supreme Court
• Parties: BOARD OF ZONING APPEALS OF THE CITY OF NORFOLK v. Mehri KAHHAL, et al.

499 S.E.2d 519

255 Va. 476

BOARD OF ZONING APPEALS OF THE CITY OF NORFOLK v. Mehri KAHHAL, et al.

Record No. 971655.

Supreme Court of Virginia.

April 17, 1998.

Daniel R. Hagemeister (Bernard A. Pishko, on brief), Norfolk, for appellant.

H. Joel Weintraub (Decker, Cardon, Thomas & Weintraub, on brief), Norfolk, for appellees.

Present: All the Justices.

LACY, Justice.

In this appeal, we consider whether the circuit court erred in reversing the decision of a board of zoning appeals because the board applied erroneous principles of law.

Mehri Kahhal and Mahmoudi Zarandi (collectively, the owners) purchased property located at 4000 Parker Avenue in the City of Norfolk, in 1990. The property was zoned for commercial use. The owners leased the property to Frederick Holloway, who held a business license from the City to operate "D & H Grocery." In 1992, the City rezoned the property for residential use. However, the zoning ordinance allowed nonconforming uses to continue subject to § 12-9 of the ordinance. That section provides:

If a nonconforming use is discontinued for a period of two years, then that use shall not be renewed or reestablished and any subsequent use of the lot or structure shall conform to the use regulations of the Zoning District in which it is located.

In 1994, following a fire in the store, Holloway abandoned his lease. He surrendered his business license on June 16, 1994. The owners decided to operate the grocery store themselves and secured a loan to finance the necessary repairs to the property. On October 9, 1995, the City issued the owners a business license to operate a grocery store on the property. That same day, the owners also paid a meal tax cash bond to the City in the amount of $300. A second business license was later issued with an expiration date of December 31, 1996.

On February 9, 1996, the owners obtained a building permit from the City to repair the property, and the City subsequently issued permits for electrical and plumbing work. City inspectors approved the repair work on a number of occasions from June through August of 1996. On August 21, 1996, the owners received a Notice of Zoning Violation from the zoning inspector informing them that the property could not be used as a grocery store because it had lost its nonconforming use status.

The owners appealed to the Board of Zoning Appeals (the Board). At the public hearing, the zoning administrator testified that the property had lost its nonconforming use status on June 16, 1996, pursuant to § 12-9 of the zoning ordinance, because it had not been operated as a grocery store for a period of two years. The administrator measured the two-year period from the date the owners' lessee had surrendered his business license. The administrator also testified that, at the time the building permit was issued, the owners were told that the business had to be in operation by June 16, 1996.

The owners presented evidence of the repair and renovation work they had done on the property, as well as the business licenses, building permits, and inspection approvals they had received from the City. They denied they were told that they had to be operating the business by June 16. A number of neighborhood representatives testified both for and against the owners. One resident of the neighborhood, Mr. Isaiah Rogers, testified that the property had not been used as a grocery store since "about `88, something like that."

The Board upheld the zoning administrator's decision. The owners filed a petition for a writ of certiorari with the circuit court arguing that the Board applied erroneous principles of law in making its decision. The circuit court did not take additional evidence, but relied on the record of the hearing before the Board and argument of counsel. The owners argued, as they had before the Board, that continuation of the nonconforming use under § 12-9 is not limited to the actual operation of the "use," but includes preparatory actions such as securing financing to repair the property, paying the meal tax bond, and getting business licenses as well as building permits. They asserted that, even though § 12-9 is silent as to its scope, other sections of the zoning ordinance support their interpretation of § 12-9.

The owners pointed to § 12-8 of the ordinance, which allows restoration or reconstruction of a nonconforming use in the event of a fire as long as the owners diligently prosecute the repairs to completion. This provision, they argued, not only is applicable to their specific situation because of the 1994 fire, but it also shows that actual operation is not a prerequisite for avoiding a determination that a nonconforming use has been discontinued. Similarly, the owners suggested that the definition of "used or occupied" as "intended, designed or arranged to be used or occupied" in § 1-4.8 of the ordinance is consistent with their interpretation of § 12-9. This definition is relevant, the owners argued, because § 1-4 of the zoning ordinance, which includes § 1-4.8, states that "[t]he regulations contained in this ordinance shall be interpreted and applied in accordance with the general rules set out in this section." Finally, the owners claimed that the Black's Law Dictionary definition of "discontinuance"—an ending, causing to cease, ceasing to use, giving up—supports their position that a nonconforming use is not abandoned or discontinued as long as affirmative actions are...