Patton v. City of Galax

• Decision Date: 03 March 2005
• Docket Number: Record No. 040616,Record No. 040617.
• Citation: 269 Va. 219,609 S.E.2d 41
• Parties: Ralph L. PATTON, et al. v. CITY OF GALAX.
• Court: Virginia Supreme Court

609 S.E.2d 41

269 Va. 219

Ralph L. PATTON, et al. v. CITY OF GALAX.

Record Nos. 040616, 040617.

Supreme Court of Virginia.

March 3, 2005.

Alan K. Caudell, Galax, for appellants.

James T. Ward, Galax, for appellee.

Present: All the Justices.

KOONTZ, Justice.

These appeals arise from companion equity and law cases filed in the Circuit Court of Grayson County (the trial court) in which the City of Galax maintained that Ralph L. and Frieda Patton, husband and wife, are prohibited by its local zoning ordinance from utilizing the first floor of the structure on their property for residential apartments. In the equity case, the chancellor determined that the proposed use of the first floor was not subject to the so-called "grandfathering" provision in Galax City Code § 160-157 and issued an injunction prohibiting the Pattons from making renovations to their property for that proposed use. In the law case, the trial court reviewed and affirmed the decision of the local Board of Zoning Appeals denying the Pattons' application for a conditional use permit for the proposed residential use of the first floor. We awarded appeals to the Pattons to review both actions of the trial court.

BACKGROUND

Under familiar principles of appellate review, we consider the evidence in the light most favorable to the City of Galax, the prevailing party in the trial court. Matthews v. Board of Zoning Appeals, 218 Va. 270, 282, 237 S.E.2d 128, 135 (1977). Here, the evidence is provided by an appropriate statement of facts certified by the trial court in lieu of a transcript, Rule 5:11(c), and various trial exhibits.

The property in question is located at 201 South Main Street in the City of Galax. Mr. Patton acquired the property in 1967 and thereafter transferred the title to himself and his wife jointly. Subsequent to the Pattons' acquisition of the property, the City adopted a comprehensive zoning ordinance, placing the property in a Business General (B-2) District (the B-2 District). "This district, containing the major downtown retailing center and major outlying commercial areas, provides a framework for a strong nucleus of the commercial community, in which each business can enhance other business and where all the amenities of downtown can be provided." Galax City Code § 160-91.

"Apartment use" of structures in the B-2 District requires a conditional use permit. Galax City Code § 160-93(E). Apartment use is not permitted on the first floor of any structure in the B-2 District "fronting on designated streets." Id.

At the time the Pattons acquired the property, the first floor of the structure was used principally for a drugstore. The record does not reflect when this use was discontinued, although the parties do not dispute that such is the case. The record also does not reflect the dimensions of the first floor or any significant details concerning its interior layout. However, it is not disputed that, both before and after the adoption of the City's zoning ordinance, portions of the first floor have been used for a woodworking shop, a beauty shop, and at times for residential rental rooms. It is also undisputed that the second floor of the structure has been in continual use for residential apartments.¹

In 1997, the Pattons began renovations on the first floor of their property. The Pattons obtained a building permit to construct a bathroom on this floor. Subsequent renovations, including painting and the installation of fire retardant sheetrock over existing walls, were conducted without obtaining building permits. The Pattons intended to use the first floor of their property for residential apartments.

On February 15, 2001, the Pattons were informed by Keith Barker, a building official for the City of Galax, that they were not permitted to use the first floor of their property for residential purposes without a conditional use permit and that no further building permits would issue for the ongoing renovation work until a conditional use permit was obtained. On December 10, 2001, the City filed a bill of complaint in the trial court seeking an injunction prohibiting the Pattons from continuing to renovate the first floor of the property for residential use.

In their answer to the bill of complaint, the Pattons asserted that the property "has been in residential use continuously and at all times since the adoption of a zoning ordinance by the City of Galax, and that the residential use of the premises is grandfathered such that continuing residential use of the premises is not in violation of the zoning ordinance of the City of Galax." On January 4, 2002, the chancellor issued a temporary injunction prohibiting the Pattons from conducting further renovation work on the property. Following a hearing on the City's bill of complaint, the parties agreed to a continuance of the proceedings in order to permit the Pattons to apply for a conditional use permit for residential apartments on the first floor street level of the property.

On March 7, 2002, the Pattons applied to the City of Galax for a conditional use permit to allow apartments on the first floor street level of the property. Following a public hearing on April 25, 2002, the City of Galax Planning Commission denied the Pattons' application. The Commission found that the proposed apartments would front on Main Street, which the Commission determined to be a "designated street[ ]" within the meaning of Galax City Code § 160-93(E). After the Commission's action was confirmed by the Galax City Council, the Pattons filed an appeal with the City of Galax Board of Zoning Appeals. On June 25, 2002, the Board denied the Pattons' appeal, concurring in the determination of the Commission that the structure on the Pattons' property fronted on a designated street.

On July 17, 2002, the Pattons filed a notice of appeal in the trial court. After issuing a writ of certiorari to the Board of Zoning Appeals, the trial court consolidated the appeal of the Board's decision with its consideration of the City's bill of complaint. The trial court ruled that no additional evidence was needed in either case and directed the parties to present their final arguments in written briefs. Those briefs reflected the arguments the parties now make on appeal.

In an opinion letter dated August 8, 2003, the trial court ruled in the law case that the Board of Zoning Appeals properly construed the term "designated streets" to include all public streets within the B-2 District. Referring to the City's zoning map, filed as an exhibit, the trial court noted that Main Street is color coded as being within the B-2 District. Thus, the trial court concluded that the Board properly followed the ordinance in affirming the decision of the Planning Commission, as confirmed by the City Council, to deny the conditional use permit on the basis that the proposed apartments on the first floor of the structure on the Pattons' property would front on a designated street in violation of Galax City Code § 160-93(E). The trial court further noted that the use of "the subject property ... for first floor residential apartments was not in existence at the time that the zoning ordinance came into effect" and, thus, was not grandfathered for that use.

In a separate opinion letter in the equity case, also dated August 8, 2003 and referencing the letter opinion filed in the law case, the chancellor opined that the requested injunction should issue. A final order and a final decree memorializing the rulings of the trial court as reflected in the opinion letters were entered in the respective cases on December 19, 2003.

DISCUSSION

It is self-evident that if the Pattons are entitled to use the first floor of the structure on their property for residential apartments as a prior nonconforming use grandfathered under the zoning ordinance, a conditional use permit for that same purpose would be unnecessary. Accordingly, we first consider the trial court's determination in the equity case that because the first floor of the structure was not being used for residential apartments at the time the zoning ordinance was adopted, only the second floor apartments are grandfathered.

Because the chancellor heard the evidence ore tenus, his decree is entitled to the same weight as a jury verdict. The Dunbar Group, LLC v. Tignor, 267 Va. 361, 366-67, 593 S.E.2d 216, 219 (2004); Shooting Point, L.L.C. v. Wescoat, 265 Va. 256, 264, 576 S.E.2d 497, 501 (2003). Thus, we will not reverse the determinations made by the chancellor unless they are plainly wrong or without support in the evidence. The Dunbar Group, 267 Va. at 367, 593 S.E.2d at 219 (2004); Shooting Point, L.L.C., 265 Va. at 264, 576 S.E.2d at 501.

It is the settled law of this Commonwealth that for a prior use of land that violates a newly enacted zoning restriction to be considered a lawful nonconforming use, the use must have been "`a lawful use existing on the effective date of the zoning restriction.'" C. & C. Inc. v. Semple, 207 Va. 438, 439 n. 1, 150 S.E.2d 536, 537 n. 1 (1966) (quoting 2 E.C. Yokley, Zoning Law and Practice § 16-2, at 212 (3rd ed.1965)), see also Knowlton v. Browning-Ferris Industries of Virginia, Inc., 220 Va. 571, 572 n. 1, 260 S.E.2d 232, 234 n. 1 (1979)

. "In a civil action in which a use is challenged as illegal, the challenging party has the initial burden of producing evidence to show the uses permitted in the zoning district in which the land is located and that the use of the land is not a permitted use. Upon this showing, the burden shifts to the landowner to show that his use is a lawful nonconforming use." Masterson v. Board of Zoning Appeals, 233 Va. 37, 47, 353 S.E.2d 727, 734 (1987); see also Knowlton, 220 Va. at 574,

260 S.E.2d at 235.

With respect to nonconforming uses in existence at the time the zoning ordinance applicable here was adopted, Galax City Code § 160-157 provides, in relevant part, that:

A. Intent. Within the districts

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