Board of Supervisors v. Board of Zoning

• Decision Date: 03 March 2006
• Docket Number: Record No. 051269.
• Citation: 626 S.E.2d 374
• Court: Virginia Supreme Court
• Parties: BOARD OF SUPERVISORS OF FAIRFAX COUNTY, et al. v. BOARD OF ZONING APPEALS OF FAIRFAX COUNTY, et al.

626 S.E.2d 374

BOARD OF SUPERVISORS OF FAIRFAX COUNTY, et al. v. BOARD OF ZONING APPEALS OF FAIRFAX COUNTY, et al.

Record No. 051269.

Supreme Court of Virginia.

March 3, 2006.

COPYRIGHT MATERIAL OMITTED

Cynthia A. Bailey, Assistant County Attorney (David P. Bobzien, County Attorney; Jan L. Brodie, Senior Assistant County Attorney, on briefs), for appellants.

James G. Smalley, Fairfax; Brian M. McCormack (Cyron & Miller; Dunn, McCormack & MacPherson, on briefs), for appellees.

Present: All the Justices.

KINSER, Justice.

The primary issue in this appeal concerns the timeliness of a petition for a writ of certiorari filed by the Fairfax County Board of Supervisors (the Supervisors) and the Fairfax County Zoning Administrator (the Zoning Administrator) (collectively the County), seeking review of a final decision of the Fairfax County Board of Zoning Appeals (the BZA). Because the 30-day filing requirement set forth in Code § 15.2-2314 is not an aspect of the circuit court's subject matter jurisdiction to hear the appeal, the County's failure to timely file its petition for a writ of certiorari cannot be raised for the first time before this Court.

This appeal also involves the interpretation of a 1941 zoning ordinance and whether a garage apartment built over 50 years ago presently qualifies as a lawful nonconforming use. Because the relevant zoning ordinance permitted only one principal dwelling on a single lot, we will reverse the judgment of the circuit court.

I. RELEVANT FACTS AND PROCEEDINGS

Donald J. and Jaki S. McCarthy (the McCarthys) own approximately 1.475 acres of real estate located in Fairfax County. The property is currently situated in a residential zoning district known as R-1, meaning that there cannot be more than one dwelling unit on any one lot nor can "a dwelling unit be located on the same lot with any other principal building." Fairfax County Zoning Ordinance (Zoning Ordinance) § 2.501. The property is developed with a single-family dwelling, built in 1945, and a two-story detached garage that contains an apartment on the second floor. The garage apartment was constructed in 1950.

On February 5, 2004, a zoning inspector informed the McCarthys that the existence of the garage apartment violated Zoning Ordinance § 2.501.¹ The McCarthys appealed the violation notice to the BZA. They claimed that the garage apartment was a qualified nonconforming use on the basis that it was lawfully established under the 1941 Fairfax County Zoning Ordinance (1941 Ordinance).

In 1941, the subject property was zoned as agricultural. In the "Agricultural District," permitted uses included any use that was allowed in the "Rural Residence District." 1941 Ordinance § III(A)(2). Permitted uses in the Rural Residence District included a "[s]ingle family detached dwelling" and a "[p]rivate garage which shall not be used to house more than two vehicles in excess of those used by the residents of the premises on which the garage is located." Id. at §§ IV(A)(1), IV(A)(7). The term "single-family dwelling" was defined as "[a] dwelling constructed to accommodate only one family, and containing only one housekeeping unit." Id. at § I(6). The 1941 Ordinance defined the term "garage" as "[a] building used for the housing or storing of motor driven vehicles" and listed it as an example of an "accessory building" in the definition provided for that term. Id. at §§ I(1), I(9). No structure in the agricultural district could be erected "on a lot or building site containing an area of less than one-half ... acre." Id. at § III(C)(1).

At a public hearing before the BZA held on May 25, 2004, the McCarthys argued that there was nothing in the 1941 Ordinance prohibiting "a property from having two dwelling units." They presented testimony from the daughter of the original owner of the subject property. She stated that the "apartment was built with the specific intended use as a dwelling.... The apartment was built in accordance with the Zoning Ordinance in effect at that time. It has been continually operated as a rental apartment ever since."

After hearing the evidence, the BZA agreed with the McCarthys and voted to overturn the decision of the Zoning Administrator. One member of the BZA noted that the language in the 1941 Ordinance was ambiguous. Another member stated, "it sounds to me like, as long you [sic] had enough room, a half-acre per structure, you could still do a structure on something other than a lot." Since the 1941 Ordinance specifically said "one or more," the member reasoned that the second dwelling would have been allowed. The perceived ambiguity in the 1941 Ordinance, coupled with the fact that the garage apartment had been continually used since it was built, led the BZA to find in favor of the McCarthys.

In a letter to the McCarthys, the BZA confirmed its May 25, 2004 action but advised the McCarthys that the date of the BZA's final decision was June 2, 2004. On July 1, 2004, the County petitioned the circuit court, pursuant to Code § 15.2-2314, for a writ of certiorari to review the BZA's decision. The circuit court granted the writ and ordered the BZA "to make a verified return of its record." The circuit court subsequently heard the appeal and affirmed the decision of the BZA. The court concluded that the BZA had not "applied erroneous principles of law [or] that its decision was plainly wrong."

The County appealed from the circuit court's judgment to this Court. In the opening brief, the County admits that, under the Court's decision in West Lewinsville Heights Ass'n v. Board of Supervisors, 270 Va. 259, 618 S.E.2d 311 (2005), its petition for a writ of certiorari seeking review of the BZA's final decision was not timely filed. The County, however, argues the timeliness of the petition for a writ of certiorari cannot be raised for the first time before this Court. The BZA did not participate in the proceedings before the circuit court, nor did the McCarthys question the timeliness of the petition in the circuit court. The BZA, however, entered an appearance in this Court to address the issue of timely filing.

II. ANALYSIS

We will first address the issue concerning the timeliness of the County's petition for a writ of certiorari and whether that issue can be raised for the first time in this Court. We will then consider the merits of the County's assignments of error challenging the decision of the circuit court finding that the McCarthys' garage apartment is a lawful nonconforming use.

1. Timeliness

The provisions of Code § 15.2-2314 govern appeals from a final decision of a board of zoning appeals to a circuit court. In pertinent part, the statute states:

Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved ... department, board or bureau of the locality, may file with the clerk of the circuit court for the county or city a petition specifying the grounds on which aggrieved within 30 days after the final decision of the board.

Code § 15.2-2314. Thus, under the terms set forth by the General Assembly, the County had 30 days from the BZA's final decision to file a petition for a writ of certiorari.

Even though the County admits that it did not file its petition within that 30 days, the question that remains is whether the timeliness of the petition for a writ of certiorari can be questioned for the first time before this Court. Stated differently, is the failure to file the petition within the required 30-day period a defect in the circuit court's subject matter jurisdiction and therefore a claim not capable of being waived? See Earley v. Landsidle, 257 Va. 365, 371, 514 S.E.2d 153, 156 (1999) ("[t]he lack of subject matter jurisdiction may be raised at any time during a proceeding," including on appeal).

We have not previously determined the nature of the 30-day period specified in Code § 15.2-2314 for filing a petition for a writ of certiorari to review the final decision of a board of zoning appeals. The County, however, asserts that we decided this issue in Board of Supervisors of Fairfax County v. Board of Zoning Appeals of Fairfax County, 225 Va. 235, 302 S.E.2d 19 (1983). We do not agree.

There, the question was "whether the successful applicant before the board of zoning appeals must be made a party to the certiorari proceeding within the thirty-day period prescribed by" former Code § 15.1-497 (now Code § 15.2-2314). Id. at 237, 302 S.E.2d at 20. We concluded that, because the statute required

only that an aggrieved person file a petition for certiorari within the prescribed thirty-day period and that the petition specify the grounds upon which the petitioner is aggrieved .... no action other than the filing of a proper petition within the prescribed period [was] necessary to complete the institution of the proceeding.

Id. at 238, 302 S.E.2d at 21. Until the board of zoning appeals made a return on the writ of certiorari, "the only necessary parties [were] the aggrieved person and the board." Id. Unlike the present case, the aggrieved party in Board of Supervisors had timely filed the petition for a writ of certiorari in the circuit court.

In order to decide whether the County's failure to timely file the petition for a writ of certiorari can be raised for the first time before this Court, we must revisit the term "jurisdiction." "Jurisdiction ... is the power to adjudicate a case upon the merits and dispose of it as justice may require." Shelton v. Sydnor, 126 Va. 625, 629, 102 S.E. 83, 85 (1920). In order for a court to have the power to adjudicate a particular case upon the merits, i.e., to have "active jurisdiction," Farant Inv. Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E. 141, 144 (1924), several elements are needed. See also Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990). Those elements are

subject matter jurisdiction,² which is the authority granted through constitution or statu...