Town of Ashland v. Ashland Inv. Co., Inc.

• Court: Virginia Supreme Court
• Writing for the Court: RUSSELL
• Citation: Town of Ashland v. Ashland Inv. Co., Inc., 366 S.E.2d 100, 235 Va. 150 (1988)
• Decision Date: 04 March 1988
• Docket Number: No. 850027,850027
• Parties: TOWN OF ASHLAND v. ASHLAND INVESTMENT CO., INC. Record

Page 100

366 S.E.2d 100

235 Va. 150

TOWN OF ASHLAND v. ASHLAND INVESTMENT CO., INC.

Record No. 850027.

Supreme Court of Virginia.

March 4, 1988.

Patrick R. Bynum (K. Marshall Cook Bynum, Johnson & Cook, Rockville, on briefs), for appellant.

Donald L. Moore, for appellee.

Present: All the Justices.

RUSSELL, Justice.

This appeal turns upon the question of the necessity of an evidentiary hearing when cross-motions for summary judgment are filed. We also consider the nature of certiorari proceedings under Code § 15.1-497 challenging a decision by a Board of Zoning Appeals.

Ashland Investment Co., Inc. (the company), owned a motel in Hanover County, outside the Town of Ashland. A large, free-standing sign on the premises had been erected in compliance with all laws and ordinances in effect in the county at the time of its construction. Later, however, the area was annexed by the town and became subject to the town's zoning ordinance, which prohibited signs of that height and area. By 1983, the company's sign was a "nonconforming sign" under the town's ordinance.

In September 1983, the company employed a contractor to make certain changes in the sign; specifically, to change the words "DAYS INN" to "QUALITY INN" and to remove a semicircle or arch extending above the sign which contained a "sunburst" design described as a "Days Inn logo." The company took the position that those alterations would have no effect on the sign's nonconforming status and, therefore, made no application to the town for any sign permit or variance allowing the alterations.

The town manager, by letter dated September 8, 1983, informed the company that because the sign was nonconforming, it could not be altered without the issuance of a sign permit, and that the company's alterations had constituted a violation of the zoning ordinance. The letter demanded that the sign be removed within ten days. The company appealed the town manager's decision to the town's Board of Zoning Appeals (the BZA). After several hearings, the BZA affirmed the town manager's decision.

The company filed a petition for certiorari in the circuit court pursuant to Code § 15.1-497, challenging the decision of the BZA. The town filed a motion for summary judgment, supported by an affidavit from the town manager, on the grounds that the company had failed to exhaust its administrative remedies. The town asserted that the company should have requested a variance from the BZA, and that any alteration in a nonconforming sign was unlawful, under the town's zoning ordinance, unless a sign permit or a variance were first obtained. The company countered with its own motion for summary judgment, relying on its verified petition for certiorari and the affidavit of a sign contractor attached thereto. The company's motion stated that the sign had conformed to all applicable laws when first erected, that the company had made no structural alterations, but had merely "changed information and removed a logo displayed on the sign," that the company had a vested right to maintain the sign pursuant to Code § 15.1-492, and that no material facts were genuinely in dispute.

The court heard the motions for summary judgment in September 1984. The town moved the court to refer the case to a commissioner in chancery for the taking of evidence concerning the nature of the alteration made to the sign. The court, however, concluded that no factual issues requisite for decision were in dispute and granted the company's motion for summary judgment, reversing the decision of the BZA. We granted the town an appeal.

At trial, the town relied on its ordinance, Town Code § 21-213(g), which provided, in pertinent part: "Any sign existing prior to the adoption of the article which does not meet the requirements of this article is declared a nonconforming sign, and shall not be altered, replaced or relocated unless it then conforms with the requirements of this article." (Emphasis added.)

The company, invoking the Dillon Rule (see Commonwealth v. Arlington County Bd., 217 Va. 558, 573-74, 232 S.E.2d 30, 40 (1977)), points out that the foregoing ordinance, as read by the town, purports to restrict the vested rights of owners of nonconforming signs more narrowly than state law would permit. The company relies on Code § 15.1-492, which provides:

Nothing in this article shall be construed to authorize the impairment of any vested right, except that a zoning ordinance may provide that land, buildings, and structures and the uses thereof which do not conform to the zoning prescribed for the district in which they are situated may be continued only so long as the then existing or a more restricted use continues and such use is not discontinued for more than two years, and so long as the buildings or structures are maintained in their then structural condition; and that the uses of such buildings or structures shall conform to such regulations whenever they are enlarged, extended, reconstructed or structurally altered and may further provide that no "nonconforming" building or structure may be moved on the same lot or to any other lot which is not properly zoned to permit such "nonconforming" use.

(Emphasis added.) Thus, the company argues, the town ordinance, if interpreted as the town contended below, would mandate the removal of a nonconforming sign if it were altered in any respect, while the enabling statute would require such removal only if the alterations were of a structural nature. Code § 15.1-492 must govern the case, the company argues, because a...