Gwinn v. Collier, 930682

• Decision Date: 15 April 1994
• Docket Number: No. 930682,930682
• Citation: 443 S.E.2d 161,247 Va. 479
• Parties: Jane W. GWINN, Fairfax County Zoning Administrator, v. Orville N. COLLIER. Record
• Court: Virginia Supreme Court

Page 161

443 S.E.2d 161

247 Va. 479

Jane W. GWINN, Fairfax County Zoning Administrator, v. Orville N. COLLIER.

Record No. 930682.

Supreme Court of Virginia.

April 15, 1994.

J. Patrick Taves, Sr. Asst. County Atty. (David P. Bobzien, County Atty., George A. Symanski, Jr., Deputy County Atty.; Jan L. Brodie, Asst. County Atty., on briefs), for appellant.

Timothy B. Hyland, Fairfax (Sally Ann Hostetler, John W. Farrell, Odin, Feldman & Pittleman, on brief), for appellee.

Amicus Curiae: (J. Randall Minchew, Grayson P. Hanes, Hazel & Thomas, Leesburg, on brief), in support of appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, HASSELL and KEENAN, JJ., and POFF, Senior Justice.

HASSELL, Justice.

In this appeal, we consider whether under the facts and circumstances of this case, Code § 15.1-496.1 requires a zoning administrator to appeal her own decision within 30 days to the Board of Zoning Appeals.

Orville N. Collier owns approximately two acres of real property in the Great Falls area of Fairfax County. The property is located in an area zoned a "residential estate district."

On April 30, 1981, Philip G. Yates, zoning administrator of Fairfax County, issued a non-residential use permit to Collier. The permit authorized C & C Auto Repair, a business entity owned by Collier, to operate a "major vehicle establishment" as a nonconforming use on the property.

On March 2, 1983, Yates issued a notice to Collier that revoked the non-residential use permit because it had been erroneously issued. Yates determined that the permit was null and void ab initio. Yates informed Collier that the parking and storage of 34 vehicles, including five "junk" vehicles, on the property violated the County's zoning ordinance. Yates directed Collier to cease the repair of all vehicles that were not registered in his name or in the name of a full-time resident of the property and to remove such vehicles from the property. Collier was further directed to repair, place in a fully enclosed structure, or remove from the property any "junk" vehicles that were registered in his name or the name of a full-time resident of the property. Collier did not appeal this decision of the zoning administrator.

Collier did not correct these violations, and he continued to operate an automotive repair business on his property. The office of the zoning administrator issued Collier several notices of violation during the period covering 1983 through 1990.

Jane W. Gwinn, who was subsequently appointed as Fairfax County's zoning administrator, filed a bill of complaint for declaratory judgment and injunctive relief against Collier. She alleged that Collier had violated the County's zoning ordinance by using property located in a low-density residentially zoned area of the County as a vehicle major service establishment and by permitting "outdoor storage" of vehicles on the property.

After the parties were at issue, the zoning administrator filed a motion for partial summary judgment on the issue of Collier's use of the property as a vehicle major service establishment. The zoning administrator argued that Collier had failed to appeal the zoning administrator's decisions finding Collier had violated the County's zoning ordinance and, relying upon Gwinn v. Alward, 235 Va. 616, 621, 369 S.E.2d 410, 412 (1988), that such determinations were "things decided" and not subject to attack by Collier. Collier filed a motion for summary judgment asserting that he had obtained a non-residential use permit and, relying upon Code § 15.1-496.1 and Gwinn, that the legality of his use "was a thing decided and was not subject to attack" because the zoning administrator had not appealed the decision to issue that permit to the Board of Zoning Appeals. The trial court agreed with Collier and entered a judgment on his behalf. We awarded the zoning administrator an appeal.

The zoning administrator contends that Code § 15.1-496.1 does not require her to appeal her own decision, granting the non-residential use permit to Collier, to the Board of Zoning Appeals. Collier argues, however, that the zoning administrator was required to appeal her decision to the Board of Zoning Appeals. We disagree with Collier.

Code § 15.1-496.1, ¹ states in relevant part:

An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the county or municipality affected by any decision of the zoning administrator or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this article or any ordinance adopted pursuant thereto. Such appeal shall be taken within thirty days after the decision appealed from by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof.

We have repeatedly stated the principles of statutory construction that we apply when a statute, such as Code § 15.1-496.1, is clear and unambiguous.

While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.

Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)).

Section 15.1-496.1 permits certain parties affected by any decision of a zoning administrator to appeal that decision to the Board of Zoning Appeals. The party exercising this statutory right is required to file such appeal within 30 days from the date of the contested decision. Clearly, the General Assembly did not intend that the zoning administrator, who made a decision to issue a non-residential use permit to a landowner, would be required to appeal that decision to the Board of Zoning Appeals within 30 days. Such a construction of Code § 15.1-496.1 would "involve a manifest absurdity."

Contrary to Collier's argument, this Court's decision in Gwinn v. Alward, supra, does not dictate that the zoning administrator appeal her own decision to the Board of Zoning Appeals within 30 days. In Gwinn, Harry E. Alward filed suit to compel Fairfax County to issue a trash hauling permit to him. 235 Va. at 617, 369 S.E.2d at 410. The County filed a cross-bill and alleged...