Gwinn v. Alward, 850698

• Decision Date: 10 June 1988
• Docket Number: No. 850698,850698
• Citation: 369 S.E.2d 410,235 Va. 616
• Parties: Jane W. GWINN, Zoning Administrator for Fairfax County, et al. v. Harry E. ALWARD. Record
• Court: Virginia Supreme Court

Page 410

369 S.E.2d 410

235 Va. 616

Jane W. GWINN, Zoning Administrator for Fairfax County, et al. v. Harry E. ALWARD.

Record No. 850698.

Supreme Court of Virginia.

June 10, 1988.

J. Patrick Taves, Asst. Co. Atty., David T. Stitt, Co. Atty.; George A. Symanski, Jr., Sr. Asst. Co. Atty., on brief, for appellants.

Dillard C. Laughlin, Douglass S. Mackall, III; Mackall, Mackall, Walker & Silver, Fairfax, on brief, for appellee.

Present: CARRICO, C.J., and POFF, COMPTON, STEPHENSON, THOMAS and WHITING, JJ.

THOMAS, Justice.

On June 29, 1984, Harry E. Alward applied to the Solid Waste Division of the Fairfax County Department of Public Works for a trash-hauling permit, listing 5635 Leesburg Pike as his business address. Alward had been granted such permits since the 1950's. His 1984 application was denied on the basis of zoning violations at the Leesburg Pike address.

Alward filed suit to compel the county to issue the permit. The Board of Supervisors of Fairfax County (the Board) and Jane W. Gwinn, Fairfax County Zoning Administrator (the zoning administrator), filed a cross-bill in Alward's suit alleging that he was in violation of the zoning ordinance because he maintained a junk yard on the property and because he parked operable trash-collection trucks on the property. The county officials requested an injunction against these violations.

A hearing was held on all issues. The trial court denied Alward the relief he sought. The trial court also refused to grant the injunction sought by the Board, although the court ordered Alward to remedy the problems complained of by the Board.

The Board and the zoning administrator appeal, arguing that the injunction they prayed for should have been granted. Alward filed a cross-appeal concerning the denial of the relief he requested; we denied all assignments of cross-error. Thus, the focus of this appeal is solely upon the question whether the injunction should have been granted. Because we agree that it should have been granted, we will reverse the judgment of the trial court.

Alward lived at 5635 Leesburg Pike from 1948 to 1973. He first raised hogs on the property, hauling feed for the animals in 12-foot and 16-foot open trucks. At times, he would park these trucks on the subject property.

In 1948, he started his trash-collection business. Alward began his business with three operable trash trucks. He parked his trash-collection trucks on the subject property. He kept inoperable trucks on the property from which he would take parts to use on the operable trucks. Also, he did repair and maintenance work on the property.

According to Alward, he was first required to secure a trash-collection permit sometime in the 1950's. He received a permit each year until July 1984, when his permit application was denied.

Alward admitted that for several years prior to trial, he had stored trash trucks on the property. He also admitted receiving a decision in August 1984 from the zoning administrator that trash-hauling and the storage of trash-hauling vehicles were not permitted uses on the property. He admitted further that he did not appeal this decision. He also admitted that he never secured a nonresidential use permit to use the property in connection with a trash-hauling business. Nor did he ever secure such a permit to use the subject property as a storage yard for trash-hauling vehicles. He denied that there was a junk yard on the property.

The Board proved, without contradiction, that at the time of trial, the property contained a vacant house, which was boarded up; a large accumulation of vehicles and vehicle parts; and miscellaneous debris. A police officer who had worked in the area of Alward's property for twelve years said "the entire yard ... was filled with old rusted trash dumpsters with rusted holes in them, and huge trash trucks, along with some pickup trucks." He testified that the vehicles did not appear capable of being operated. An engineer with the department of environmental management testified that he had received complaints concerning the property starting in 1980. The complaints concerned the condition of the property, the parking of trash trucks on the public streets near the property, and the presence of rats. Phillip Yates, who was zoning administrator at the time Alward's trash collection application was denied, testified that the property had been zoned C-8 since 1978, and that neither a junk yard nor a storage yard was permitted in that zoning classification.

The trial court also considered a series of letters to Alward from the health department, the zoning administrator, and the public works department, all citing Alward for various violations of County ordinances. Of particular importance are three letters written in 1984. By letter dated April 17, 1984, a senior zoning inspector advised Alward "that the use of 5635 Leesburg Pike is considered by the Fairfax County Zoning Ordinance to be a junk yard.... Consequently, the use of this commercial property as a repository for junk vehicles, trash service equipment, and miscellaneous junk and debris is in violation of the Ordinance." By copy of a letter dated August 8, 1984, Phillip Yates, then the zoning administrator, advised that 5635 Leesburg Pike was located in a C-8, highway commercial, zoning district and, as such, could not be used for "trash hauling and related storage of vehicles." By letter dated September 13, 1984, a senior zoning inspector advised Alward that "as the lawful owner of this property, your use of this site as the location for a refuse collection service and the related storage of vehicles observed on September 13, 1984, is in violation of the Fairfax County Zoning Ordinance." Alward did not appeal any of these decisions.

This appeal concerns only Counts One and Two of the Board's cross-bill. Count One alleged that the property was used as a junk yard; that Alward was advised of the violations by letter dated April 17, 1984; and that Alward took no corrective action and failed to pursue any administrative relief. Count Two alleged that Alward parked operable trash-hauling vehicles on the property; that Alward was advised of the violation by letters dated August 8, 1984 and September 13, 1984; and that Alward took no corrective actions and failed to pursue any administrative relief.

In his answer to the amended cross-bill, Alward raised two affirmative defenses: (1) unclean hands, and (2) estoppel based on prior adjudications that Alward's present use of the premises was a lawful, nonconforming use. Alward did not raise the defense of lawful, nonconforming use except in the oblique fashion set forth in his estoppel defense.

The trial court set forth its findings and conclusions in a letter opinion which it incorporated into its final order. The trial court wrote as follows concerning the property:

Rats have infested the 5635 Leesburg Pike property at least since 1979. The 5635 Leesburg Pike property has been filled with vehicles which cannot be operated, debris and trash at least since 1979. Tires collected by Mr. Alward in his trash business are also strewn about the lot. Some of the junk trucks on the lot at 5635 Leesburg Pike have been in the same location, without having been operated, for twelve years.... Three to six homeless people have regularly stayed overnight in the junk yard at 5635 Leesburg Pike since 1979......