Michelle Coleman v. Board of Zoning Appeals of the City of Fairfax, et al. The Lamb Center v. City of Fairfax, et al.

Decision Date07 April 2011
Docket NumberCL-2009-6672,CL-2009-13240
PartiesMichelle Coleman v. Board of Zoning Appeals of the City of Fairfax, et al. The Lamb Center v. City of Fairfax, et al.
CourtCircuit Court of Virginia
MARCUS P. WILLIAMS

JANE MARUM ROUSH

LESLIE M. ALDEN

JONATHAN C. THACHER

R. TERRENCE NEY

RANDY I. BELLOWS

CHARLES J. MAXFIELD

BRUCE D. WHITE

ROBERT J. SMITH

DAVID S. SCHELL

JAN L. BRODIE

LORRAINE NORDLUND

BRETT A. KASSABIAN

MICHAEL F. DEVINE

JUDGES

BARNARD F. JENNINGS

THOMAS J. MIDDLETON

THOMAS A. FORTKCRT

RICHARD J. JAMBORSKY

JACK R. STEVENS

J. HOWE BROWN

F. BRUCE BACH

M. LANGHORNE KEITH

ARTHUR B. VIEREGG

KATHLEEN H. MACKAY

ROBERT W. WOOLDRIDGE, JR.

MICHAEL R. McWEENY

GAYLORD L. FINCH. JR.

STANLEY P. KLEIN

RETIRED JUDGES

April 7, 2011

Dear Counsel:

This matter comes before the Court on a writ of certiorari to entertain the City of Fairfax ("City") and Zoning Administrator Michelle D. Coleman's ("Zoning Administrator") appeal of three decisions of the Board of Zoning Appeals ("BZA"). After considering the oral arguments of counsel and reviewing the applicable legal authority, I find that the BZA was plainly wrong and applied incorrect principles of law in reversing the Zoning Administrator. I hereby reverse the BZA's decision. Further. I find that the Zoning Ordinance at issue in this case is valid. Therefore, I deny The Lamb Center's request for declaratory judgment and injunctive relief.

BACKGROUND

In 1992, The Lamb Center received a non-residential use permit ("Non-RUP") to operate a counseling center on Lee Highway in Fairfax City. Defendant Roger Young is the record owner of The Lamb Center. In 2001, The Lamb Center relocated to Old Lee Highway and obtained another Non-RUP to operate the counseling center at the new address. Operating a counseling center is a permissible use in the locations, both of which are zoned C-21.

In 2006, the Zoning Administrator issued a Determination that The Lamb Center engaged in eleemosynary activity—a use prohibited in a C-2 area. Specifically, the Administrator determined that The Lamb Center provided laundry service, personal care facilities and meals to its clients. The Administrator concluded that these services-were not accessory to The Lamb Center's operation and, therefore, not among the permitted uses. The Administrator issued a Notice of Violation in connection with the Determination. The Administrator issued another Notice of Violation on the ground that The Lamb Center did not have a permit to operate a school of special instruction. The Lamb Center appealed the Determination and the Notices. The BZA heard the appeal on April 7, 2009, and reversed the Administrator's decisions.

On May 6, 2009, the Administrator and the City petitioned this Court for a writ of certiorari2. On June 25, 2009, this Court granted the petition. Pursuant to the Court's order, the BZA furnished copies of the underlying proceedings on August 17, 2009. Subsequently, on August 20, 2009, the BZA filed its response to the Petition for writ of certiorari. The Lamb Center filed its response brief on November 25, 2009.

On September 11, 2009, The Lamb Center filed a Complaint for Declaratory Judgment and Injunctive Relief requesting that this Court invalidate the applicable zoning ordinance provisions and enjoin the City and the Administrator from interfering with The Lamb Center's operation.

On December 1, 2009, this Court consolidated the case initiated by The Lamb Center and the Petition for writ of certiorari. Both cases came before the Court on February 2, 2011, for a joint hearing on the City and Administrator's appeal of the BZA decision and The Lamb Center's Complaint for Declaratory Judgment and Injunctive Relief. The Court took both matters under advisement.

ANALYSIS
THE APPEAL

The Court first considers the City and Zoning Administrator's appeal of the BZA decision. On appeal, the circuit court must afford the BZA decision a presumption of correctness. Va. Code Ann. §15.2-2314 (2011). The appellant may rebut that presumption by proving by a preponderance of the evidence that the BZA reached an incorrect decision. Id. When the issue on appeal is a question of law, the court must decide whether the BZA applied improper principles of law or whether the BZA's decision was plainly wrong. Bd. Of Supervisors v. Bd. of Zoning Appeals, 271 Va. 336, 348, 626 S.E.2d 374, 382 (2006).

The appellants raise the following arguments: (1) one of the BZA members, Mr. Matthews, improperly relied on equitable considerations in reaching his decision; (2) the BZA failed to accord the Zoning Administrator's determination the presumption of correctness, as required by statute; and (3) the BZA incorrectly concluded that The Lamb Center's activities constituted a permitted use. I address each of these arguments below.

a. BZA Member Matthews's Conduct

The City and Zoning Administrator argue that BZA member Matthews erroneously relied upon impermissible equitable considerations in reaching his decision. Specifically, the appellants contend that Mr. Matthews concluded that The Lamb Center had engaged in its activities for such a long time as to make any restrictions on uses irrelevant.

The authority of the BZA is prescribed by statute. Lake George Corp. v. Standing, 211 Va. 733, 735, 180 S.E.2d 522, 523 (1971). Generally, the BZA may not consider equitable principles in reaching its decision. Bd. of Supervisors, 271 Va,at351. However, equitable considerations are permitted when the issue involves issuance of special use permits. Id; Foster v. Geller, 248 Va. 563, 570, 449 S.E.2d 802, 807 (1994); Matthews v. Bd. of Zoning Appeals, 218 Va 270, 274, 237 S.E.2d 128, 130 (1977). The Code does authorize the BZA, however, to consider the purpose and intent of an ordinance in rendering its decision. Va. Code Ann. §15.2-2309(1) (2011).

In Foster, the Director of the Department of Planning and Community Development of the City of Alexandria allowed Geller to construct a residence on a particular lot, even though that lot constituted a substandard lot not suitable for the desired construction without a special use permit Foster, 248 Va. at 567-568. The Director based his decision on the premise that the fixed point measurement, which serves to determine whether a lot is standard, had not been consistently applied. Id. at 565. The Supreme Court agreed with the BZA and the circuit court that the Director could not use equitable reasons to circumvent compliance with the special use permit requirement. Id. at 570.

In the present case, the appellants argue there are three statements Mr. Matthews made that prove he used equitable considerations in reversing the Zoning Administrator. These statements are: (1) "I don't think [The Lamb Center's] services haven't [sic] changed in a long time;" (2) "I mean, again, I think to a large degree, it's almost irrelevant" (referring to whether or not The Lamb Center's activity was eleemosynary); and (3) "Well, such as it is, the record suggests an oral understanding between a minimum of two people" (in response to a statement that the record did not indicate that the challenged services were "part of the deal").

Thus, the question becomes whether Mr. Matthews's statements indicate that he used equitable considerations in deciding to reverse the Zoning Administrator's decisions. The Law Dictionary defines "equitable" as, among other things, "pertaining to preventive and remedial justice which is appropriate under the unique facts of the problem case, and which is rendered by a court, in contradistinction to common-law justice." The Law Dictionary (2002).

Mr. Matthews's statements indicate that he did use equitable considerations to arrive at the decision to reverse the Zoning Administrator. The fact that The Lamb Center may have exercised a certain activity for years does not bring that activity into compliance with the appropriate zoning ordinance. Therefore, his statements, even if they reflect "preventive and remedial" justice under the circumstances, are not based in law. Furthermore, like the Director in Foster, Mr. Matthews did not have the authority to apply equitable considerations, such as the duration of the activity or the fact that there was an "oral understanding" of its propriety, to excuse strict compliance with the ordinance. I find that the BZA improperly applied equitable principles of law in reaching its decision.

b. The BZA's Review of the Zoning Administrator's Decision

Next, the appellants contend that the BZA erred in failing to accord a presumption of correctness to the Zoning Administrator's decision that The Lamb Center was an eleemosynary institution. Specifically, the appellants argue that the BZA did not afford the necessary deference to the Zoning Administrator's findings and further failed to apply the plain meaning of the ordinance, which prohibits eleemosynary uses in the C-2 district.

It is true, as the appellants point out, that matters involving "judgment calls" as to ordinance interpretation are best resolved by the officials enforcing the ordinance. Trustees of the Christ and St. Luke's Episcopal Church v. Bd. of Zoning Appeals of Norfolk, 273 Va 375, 381, 641 S.E.2d 104,107 (2007). However, there is no authority, contrary to what the appellants suggest, which requires the BZA to afford deference to the zoning official on appeal. Higgs v. Kirkbride, 258 Va. 567, 575, 522 S.E.2d 861, 865 n.4 (1999).

The BZA has the power to reverse the zoning official's decision. Va. Code Ann. §15.2-2312 (2011). In exercising this power, the BZA need not defer to the zoning administraior- See Higgs, 258 Va. at 575 n.4 ("It is an appropriate function of the board to reverse a decision of a zoning official where the board determines that the decision is contrary to the plain meaning of the ordinance and the legislative intent expressed therein. The board owes no deference to the zoning official in that circumstance."). The BZA in this case exercised its authority under §15.2-2312 and reversed the Zoning...

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