Belle-Haven Citizens Ass'n v. Schumann
| Decision Date | 22 June 1959 |
| Docket Number | BELLE-HAVEN,No. 4941,4941 |
| Court | Virginia Supreme Court |
| Parties | CITIZENS ASSOCIATION, INCORPORATED, ET AL. v. HERBERT F. SCHUMANN, JR., ZONING ADMINISTRATOR, ETC., ET AL. Record |
E. A. Prichard (Frederick A. Ballard; Livingston, McCandlish, Prichard & Ryan; Kilpatrick, Ballard & Beasley, on brief), for the appellants.
Robert C. Fitzgerald and William A. Moncure (Glenn U. Richard; Stanford E. Parris; Clarke, Richard, Moncure & Whitehead, on briefs), for the appellees.
This is an appeal from a decree affirming the action of the Board of Zoning Appeals of Fairfax county which approved the action of the Zoning Administrator in issuing building permits to River Towers, Incorporated, to construct two 17-story apartment buildings on a tract of 26 acres, the undeveloped part of 110 acres for which a multiple housing permit had been issued in 1947 under the Fairfax Zoning Ordinance.
The case was heard on the pleadings, exhibits and stipulated facts. The court found that the action of the Zoning Administrator and of the Board of Zoning Appeals 'was in all respects correct.' The appellants are three corporations and four individuals who assert they are aggrieved by this decree. The appellees are the Zoning Administrator, the Board of Zoning Appeals, the Board of County Supervisors, the corporate owners of the 26 acres and their vendee, River Towers, Inc.
Section 6-12 of the Zoning Ordinance of Fairfax county in effect in 1947 (Code of Fairfax County, Vol. II) established a Board of Zoning Appeals. See Code of Virginia, § 15-850. Section 6-12(f) 5 thereof empowered this Board 'to grant special exceptions and authorize the zoning administrator to issue use permits for the erection of multiple housing projects in the Urban Residence District,' in which this 110-acre tract was located, the application therefor to be first submitted to the county planning commission for its recommendations, and if granted the layout to be approved by the planning commission 'as being in conformance with the regulations as set forth in section 6-14 of this volume, and a subdivision plat * * * shall be approved and recorded before any construction permits shall be issued.' 1
Section 6-14 provided that the Board of Zoning Appeals may permit the erection of multiple housing projects 'subject to the regulations set forth in this section,' as provided in § 6-12(f) 5. It then defined a multiple housing project and in subsection (b) provided against limiting the height of the structures.
On February 25, 1947, the owners of the 110-acre tract applied to the Board of Zoning Appeals for permission to erect a multiple housing development on this tract. The Chairman of the Board asked for the report of the Planning Commission, which thereupon recommended that the application be granted 'subject to the construction of the project in conformance with the type of architectural design indicated by the perspective rendering submitted with the application.'
A member of the Board thereupon moved that the application be granted 'providing the builders conformed to the recommendation of the Planning Commission,' and the motion unanimously carried.
Pursuant to the permission so granted and under building permits severally issued the first on June 18, 1947, two in 1949 and one in 1950, four sections of apartment buildings were constructed from 1949 to May 9, 1951, containing 972 apartment units on 70.5 acres of the tract. In May, 1947, 13.5 acres of the 110-acre tract were zoned for general business purposes, and an office building and 20 stores were constructed thereon from 1951 to 1955 under building permits issued in 1950, 1953 and 1954.
On or before May 22, 1957, the Board of Supervisors directed the Building Inspector to hold up the issuance of the permits applied for by River Towers, Inc., to construct the two 17-story apartment buildings, but on June 5, 1957, the Board rescinded that order and the permits were then duly issued. On appeal to the Board of Zoning Appeals and after extended hearings on July 9 and July 23, 1957, the permits were approved by a 3 to 2 vote of the Board members. The appeal to the circuit court resulted in the decree confirming these actions as noted above.
Under their assignments of error the appellants contend, first, that under the terms of § 6-12(d) 2 of the Zoning Ordinance the right of River Towers, Inc., to erect the two 17-story apartment buildings had expired because the building permits therefor were not issued within six months after February 25, 1947, the date on which the right to erect the multiple housing development on the 110 acres was granted by the Board of Zoning Appeals. Section 6-12(d) 2 under the heading 'General powers and duties' reads as follows:
'No order of the board approving the erection, alteration or use of a building shall be valid for a period longer than six months, unless:
a. A building permit for such erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with such permit, or
b. Such use is established within such period; provided, however, that where the use permitted is dependent upon the erection or alteration of a building, such order shall continue in force if a building permit for such erection or alteration is obtained and such erection or alteration is started and proceeds to completion as provided above.'
The contention of the appellants reflects a mistaken view of the meaning of this section. The words 'order of the board' in the section relate in this instance to the order entered by the board under § 6-12(f) 5, granting to the predecessors of River Towers the special exception giving it the right to erect its multiple housing project on the 110 acres, and authorizing the Zoning Administrator to issue use permits therefor. This order of the Board established a use which the owners could then make of their land. It was not the duty of the Board of Zoning Appeals to issue building permits for the buildings to be erected in the exercise of that use. Section 6-13 of the Zoning Ordinance provided that building permits be issued by such officer as may be designated by the Board of Supervisors after the application for the permit has been approved by the Zoning Administrator.
Section 6-12(d) 2, so far as the situation here involved is concerned, requires that a person who has been granted a special exception use involving the erection of buildings shall get a building permit and start building operations within six months from the date of the grant and proceed to completion of that building. It does not require that building permits for all buildings that may at any time be erected on the premises shall be obtained and construction started within six months. The requirement is that 'a building permit' be obtained and construction started within the stated time, which concededly was done in this case. Zoning laws should be given a fair and reasonable construction, as said in Mooreland v. Young, 197 Va. 771, 775, 91 S.E.2d 438, 441. It is not to be supposed that the...
To continue reading
Request your trial
-
Foster v. Geller, s. 931783
...nor the director, however, possesses the power to amend or repeal portions of zoning ordinances. Belle-Haven Citizens Ass'n, Inc. v. Schumann, 201 Va. 36, 41-42, 109 S.E.2d 139, 143 (1959). There is nothing in the record to contradict the BZA's conclusion that the director's decision to all......
-
Coots v. J. A. Tobin Const. Co., WD
...§ 101, at 368-369 (1979); Daniel D. Rappa, Inc. v. Engelhardt, 256 A.2d 744, 746(3) (Del.1969); Belle-Haven Citizens Association, Inc. v. Schumann, 201 Va. 36, 109 S.E.2d 139, 142(2) (1959). In revising Platte County's zoning laws, the county court replaced the former industrial zones with ......
-
Patton v. City of Galax
...Transfer & Storage Corp. v. Board of Zoning Appeals, 229 Va. 568, 571, 331 S.E.2d 460, 462 (1985); Citizens Association v. Schumann, 201 Va. 36, 40, 109 S.E.2d 139, 141 (1959). Applying this standard, we hold that the term "designated streets" in Galax City Code § 160-93(E) denotes those pu......
-
Virginia Beach Beautification Com'n v. Board of Zoning Appeals of City of Virginia Beach, 850570
...subsection (f) above was added to the Code in 1962 (Acts 1962, ch. 407 at 643) following the decision in Citizens Association v. Schumann, 201 Va. 36, 42, 109 S.E.2d 139, 143 (1959). In that case, the Court mentioned but did not decide a similar question of standing. The Commission argues t......