Wolfe v. Board of Zoning Appeals

• Decision Date: 09 June 2000
• Docket Number: Record No. 991705,Record No. 991706.
• Citation: 260 Va. 7,532 S.E.2d 621
• Parties: James B. WOLFE, et al. v. BOARD OF ZONING APPEALS OF FAIRFAX COUNTY, et al. Board of Zoning Appeals of Fairfax County v. Jane W. Gwinn, Zoning Administrator of Fairfax County.
• Court: Virginia Supreme Court

532 S.E.2d 621

260 Va. 7

James B. WOLFE, et al. v. BOARD OF ZONING APPEALS OF FAIRFAX COUNTY, et al.

Board of Zoning Appeals of Fairfax County v. Jane W. Gwinn, Zoning Administrator of Fairfax County.

Record Nos. 991705, 991706.

Supreme Court of Virginia.

June 9, 2000.

William E. Hassan (Agnew Swynford, III; Duvall, Harrigan, Hale & Hassan, on briefs), Fairfax, for appellants (Record No. 991705). Brian M. McCormack (Dunn, McCormack & MacPherson, on briefs), Fairfax, for appellant (Record No. 991706).

Randall T. Greehan, Assistant County Attorney (David P. Bobzien, County Attorney; J. Patrick Taves, Deputy County Attorney; Jan L. Brodie, Senior Assistant County Attorney, on brief), for appellee Board of Zoning Appeals of Fairfax County, Virginia (Record No. 991705).

Gregory J. Haley (Gentry Locke Rakes & Moore, on brief), Roanoke, for appellee Jane W. Gwinn, Zoning Administrator of Fairfax County, Virginia.

Present: All the Justices.

CARRICO, Chief Justice.

Background

On April 1, 1997, the Zoning Administrator for Fairfax County issued a notice of violation to James B. Wolfe and Raymond L. Wolfe stating that a recent inspection had revealed the operation of a business called Wolfe Brothers, Inc. on property identified on the Fairfax County Tax Map as No. "41-1((1))15" (hereinafter, Lot 15), with the parking of commercial vehicles¹ and the storing of building materials. These activities, the notice stated, were "deemed to be a contractor's office and shop and a storage yard," uses not permitted under the Fairfax County Zoning Ordinance in an R-2 District, the residential zoning classification applicable to Lot 15. The notice stated further that the parking of the vehicles also violated a provision of the zoning ordinance permitting the parking of only "one (1) commercial vehicle per dwelling unit in an R district."

On April 28, 1997, Wolfe Brothers, Inc., Raymond L. Wolfe, and James B. Wolfe (collectively, the Wolfes)² gave notice of their intention to appeal the notice of violation to the Fairfax County Board of Zoning Appeals (the BZA). At a hearing before the BZA on September 9, 1997, the issues included whether the vehicles the Wolfes parked on their property were commercial vehicles within the meaning of the zoning ordinance, whether such parking implicated a "lawful nonconforming" or "grandfathered" use or a "vested right," and whether the Zoning Administrator was estopped from enforcing the prohibition against more than one commercial vehicle per dwelling because of the actions of a former senior zoning inspector. On a tie vote of three to three, the BZA upheld the determination of the Zoning Administrator concerning Lot 15.³

On October 16, 1997, pursuant to Code § 15.2-2314, the Wolfes filed in the trial court a petition for a writ of certiorari challenging the decision of the BZA.⁴ A writ of certiorari was issued to the BZA, and the record of the proceeding before the BZA was forwarded to the trial court.⁵

During the hearing before the BZA on Lot 15, the Deputy Zoning Administrator noted that the Wolfes also owned Lot 15A, located to the rear of Lot 15, and he told the BZA "it was hard to tell out in the field, which lot the equipment was parked on so only 15 was cited." The Deputy also said "it appears that at least some of the equipment is parked on 15A," and he thought the situation "will require [the Zoning Administrator] to . . . turn around and issue a notice to include 15A."⁶

Accordingly, on June 29, 1998, the Zoning Administrator issued a notice of violation to Raymond L. Wolfe and James B. Wolfe stating that recent inspections had revealed that trucks and construction equipment were being stored on Lot 15A. The notice also stated that "[t]he storage of these vehicles and construction equipment is deemed to be a storage yard," a use not permitted in an 2 District, the residential zoning classification applicable to Lot 15A.

On July 21, 1998, the Wolfes gave notice of their intention to appeal the notice of violation on Lot 15A to the BZA. At a hearing before the BZA on October 27, 1998, the issues included whether the vehicles parked on Lot 15A were commercial vehicles within the meaning of the zoning ordinance, whether such parking was a "grandfathered" or a "permitted ... nonconforming" use, and whether the Zoning Administrator was estopped from enforcing the prohibition against more than one commercial vehicle per dwelling because of the actions of the former senior zoning inspector.

On a vote of four to three, the BZA reversed the determination of the Zoning Administrator. On November 25, 1998, the Board of Supervisors of Fairfax County (the Board of Supervisors) and Jane W. Gwinn, the Zoning Administrator, filed in the trial court a petition for a writ of certiorari challenging the decision of the BZA with respect to Lot 15A. A writ of certiorari was issued to the BZA, and the record of the proceedings before the BZA was forwarded to the circuit court.⁷

Trial Court Proceedings

On February 23, 1999, the Zoning Administrator moved for the entry of "an order of nonsuit as to the claim by the Board of Supervisors," asserted in the certiorari petition relating to Lot 15A. The motion stated that the Board of Supervisors "did not authorize the filing of the Petition [for Certiorari] on its behalf." An order was entered on March 5, 1999, providing that "this matter is nonsuited insofar as it purports to state any claim on behalf of the Board of Supervisors."

The Wolfes filed a motion to consolidate for hearing the two petitions for certiorari. The trial court granted the motion.

The BZA then filed a motion to dismiss the petition for certiorari relating to Lot 15A. The motion alleged that the Zoning Administrator lacked standing "to prosecute an appeal of the decision of the BZA" in light of the admission, made in the Zoning Administrator's motion for nonsuit and incorporated in the nonsuit order, that the Board of Supervisors did not authorize the certiorari petition "to be filed on its behalf."

The trial court denied the BZA's motion to dismiss. The court held that Gwinn, as the Zoning Administrator, "has standing to bring this case whether the Board of Supervisors joins in, authorize[s] it, or takes some contrary position."

Proceeding to the merits of the two petitions for certiorari, the trial court rejected the Wolfes' request that the "second appeal," i.e., the certiorari petition relating to Lot 15A, be heard first because, the Wolfes claimed, "[t]he administrative record [in the second appeal] is much more complete." The trial court stated that it would consider the cases "in the order in which they were filed," meaning that the appeal concerning Lot 15 would be considered first.

The court then held that "the vehicles [in question] are clearly commercial vehicles" and that "the Zoning Administrator was correct in ... finding that the Wolfes had illegally parked commercial vehicles on Lot 15." The court recognized that, because "the [Wolfes] had a commercial vehicle in 1969 parked on the property . . ., they may continue to park that vehicle there as long as it's not a tractor-trailer." The court held further that "estoppel is not an argument that may be made against the government in the performance of its legitimate functions." In a final order entered April 20, 1999, and a corrected order entered April 28, 1999, the court affirmed the decision of the BZA with respect to Lot 15.

Concerning the petition for certiorari relating to Lot 15A, the trial court held that the BZA had "relied on erroneous principles of law" in overturning the determination of the Zoning Administrator. The court stated that there was "no grandfather issue" with respect to Lot 15A, that estoppel was not available to the Wolfes concerning statements made to them by zoning officials, and that the storage of vehicles on Lot 15A was not "some kind of a lawful nonconforming use." Accordingly, in a final order entered April 20, 1999, the court reversed the decision of the BZA and reinstated the determination of the Zoning Administrator that the Wolfes' use of Lot 15A constituted a storage yard in violation of the zoning ordinance.

The Wolfes appeal from the final judgments in both certiorari proceedings, and the BZA appeals from the final judgment in the proceeding involving Lot 15A. We will consider the cases in the same order as the trial court, meaning that we will consider Lot 15 first and on its own separate record.

Lot 15—Record No. 991705

Procedural Defaults

The Wolfes have defaulted several of the arguments they make on appeal with respect to Lot 15. First, the Wolfes argue that, "because the BZA's 1997 decision [involving Lot 15] was effectively subsumed within and superseded by the 1998 BZA decision [involving Lot 15A], the initial BZA decision and the Circuit Court's affirmance thereof are essentially void and should be reversed." This argument was not made in the trial court, Rule 5:25, and the point is not the subject of an assignment of error, Rule 5:17(c). Accordingly, we will not notice the point. Buck v. Jordan, 256 Va. 535, 545-46, 508 S.E.2d 880, 885-86 (1998) (this Court will not consider issues raised for the first time on appeal); City of Winchester v. American Woodmark Corp., 250 Va. 451, 460, 464 S.E.2d 148, 153-54 (1995) (this Court does not consider arguments that are not the subjects of assignments of error).

Second, in urging reversal of the trial court's judgment upholding the 1997 BZA decision concerning Lot 15, the Wolfes argue at great length on the point that they have been pursued for "violations regarding Lot 15 for activities which were, in fact, occurring on Lot 15A." The Wolfes made no argument in the trial court questioning whether Lot 15 served as the location of vehicles allegedly parked in violation of the zoning ordinance. Indeed, the Wolfes conceded the point below. In their petition for a writ of certiorari regarding Lot 15, the Wolfes stated...