BZA 03-16-10 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
March 16, 2010
3:25 p.m. CALL TO ORDER
1) Determination of a Quorum
2) Minutes of February 16, 2010
PUBLIC HEARING
3) Appeal Application #03-10 of Brad Pollack, Applicant, who is appealing the decision of
the Zoning Administrator as to permitted uses in the RP (Residential Performance) District
under Section 165-402.02 of the Frederick County Zoning Ordinance. The subject
property is located at 2032 Martinsburg Pike, and is identified with Property Identification
Number 43-A-130 in the Stonewall Magisterial District.
4) Other
MEETING MINUTES
OF THE
FREDERICK COUNTY BOARD OF ZONING APPEALS
Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street,
Winchester, Virginia, on February 16, 2010.
PRESENT: Kevin Scott, Chairman, Shawnee District; Robert Perry, Vice Chairman,
Stonewall District; Bruce Carpenter, Gainesboro District; Jay Givens, Back Creek District; R. K.
Shirley, III, Opequon District; and Eric Lowman, Red Bud District.
ABSENT: Robert W. Wells, Member -At -Large
STAFF
PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; Dana Johnston, Zoning
Inspector; and, Bev Dellinger, BZA Secretary.
CALL TO ORDER
The meeting was called to order by Chairman Scott at 3:25 p.m. and he determined there
is a quorum. Chairman Scott welcomed Mr. Bruce CaiWnter, the newest member of the Board.
On a motion made by Mr. Givens and seconded by Mr. Perry, the minutes for the
December 15, 2009 meeting were unanimously approved as presented.
Chairman Scott inquired if there are any applications pending for March. Mr. Cheran
stated that Appeal Application #03-10 of Brad Pollack, Applicant, will be postponed today and
carried over to the March 16, 2010 meeting.
On a motion made by Mr. Perry and seconded by Mr. Shirley, by unanimous vote, the
election of officers and adoption of bylaws will be postponed until the end of the meeting.
PUBLIC HEARING
Variance Request #01-10 of Old Virginia Land, LLC, for a 40 foot right and a
40 foot left yard variance, resulting in a right side and a left side yard setback
of 10 feet each, and a 75 foot rear yard variance, resulting in a rear yard setback
of 25 feet, for the construction of a single family dwelling. This property is located
south on Abelia Trail, Section 30, Lot 5 of Enon Springs, Shawnecland, and is
identified with Property Identification Number 69A-1-30-5 in the Back Creek,
Magisterial District.
ACTION — VARIANCE APPROVED WITH MODIFICATION
Mr. Johnston presented the staff report. This property is located in the southwestern part of the
County, near Star Tannery and north of Wardensville Grade. Currently, the Rural Areas (RA) setbacks
are 60 feet in the front, rear setbacks are 50 feet for six acres or less and 100 feet for six acres or more,
1532
gr�derick my Bol Zoning Appeals
Minutes o hpebruary 10
and side setbacks are 50 feet. The applicant is requesting a 40 foot right and left side yard variance,
resulting in side setbacks of 10 feet and a 75 foot rear yard variance, resulting in a rear yard setback of
25 feet. Mr. Johnston pointed out that the Health Department has approved a drainfield and well system
for this lot. The proposed variance plat shows the largest house they could situate on this lot; the
building foot print is 48X30 feet. This foot print could change because they're using a basic layout. Mr.
Johnston continued that due to the narrowness, shallowness, size and shape of this lot, a variance is
necessary, thereby proving a hardship.
Mr. Givens stated that if the applicant builds the blue print house, they have 58 feet remaining on
the side, allowing 26 feet on each side. Mr. Givens questioned why the Board is being asked to approve
ten foot side yards.. His understanding is the Board approves what the applicant is proposing to build
and not a variance to allow something different. Mr-. Givens doesn't understand why the Board doesn't
have the actual floor plan.
Mr. Perry affirmed that the Board has always had to see the actual floor plan before making its
decision.
Mr. Carpenter asked if there is anything additional on the included aerial photo since 2006. Mr.
Johnston responded that 2006 is the latest date that GIS has aerial photos available and to his
knowledge, it's vacant land in a platted subdivision.
Mr. Eddie Yost identified himself as the attorney and brother of the owners of Old Virginia
Land. Mr. Yost stated what they're asking for on the 10 foot side yards is what the setbacks were in the
early 1970's when the land was platted. The house that's being presented to the Board is the basic house
that the builders have been constructing. The reason they're asking for 10 feet instead of 25 feet is
because sometimes they add on a garage or a master bedroom. Rather than reapplying for a variance in
the future, they're asking for it now.
Mr. Givens stated that according to the staff report, side yard setbacks were 15 feet in 1967, not
10 feet. Mr. Cheran responded the applicants are trying to make the lot almost like what an R5 lot
would be, which is what you find in Shawneeland and Wilde Acres. Those subdivisions have setbacks
of 35, 10, 10 and 25. Mr. Cheran continued that the question is how the Board is going to look at this
variance as to what is approved versus not allowing any leeway for an addition to the house now or in
the future. The Board usually wants to see the floor plan. The surveyor did lay out what you see on the
plat, with the setbacks at 10 feet.
Mr. Perry stated he doesn't mind considering a variance, but lie doesn't want to give any more
than is necessary. In Mr. Perry's opinion, the Board has to know what the applicant wants to build in
order to consider the exact variance needed.
Chairman Scott told Mr. Yost that, in order to ensure whatever variance is approved will be the
end product, the BZA needs to know what will be built on the parcel. Instead of allowing a blanket
variance, the BZA has been asking for what is going to be built on the site now. However, Chairman
Scott does understand the point about the future and the ability to utilize the property.
Ms. Mary Kennedy Yost identified herself as a co-owner of Old Virginia Land. Her builder has
already built and presold a house on the same street. By pre -selling, there may be someone who wants
to buy the house but they want a garage on it; that's why they're asking for more of a variance. Ms.
1533
c,derick FPqunty Bo r Zoning Appeals
mutes o e ruary .910
Yost feels the Board is tying the builder's hands, and her hands, in building more houses because she
and the builder don't know exactly what the buyer wants.
Mr. Perry feels the applicant is asking for a blanket variance and the BZA cannot do that. Ms.
Yost responded that if she has to come back with a different floor plan, that's going to cost them another
30 days in construction.
Chairman Scott asked for citizen comments; there were none. Chairman Scott closed the public
hearing portion of the meeting.
Discussion
Mr. Lowman stated that the precedent set by this Board in the past when allowing a variance of
this nature has always been to have an idea of a footprint that the applicant is going to use. If you're
going to use a smaller footprint than what you propose to the Board, you're going to be within the
requirements.
Chairman Scott asked Mr. Cheran if there is a requirement that the BZA has to have a floor plan.
Mr. Cheran responded that staff does ask for a floor plan with the application.
Mr. Givens asked if the floor plan that the applicant submitted had shown a garage, would the
Board have approved it based on the fact that the garage was shown on the original floor plan? Mr.
Givens continued that if this floor plan would have included a garage, the BZA would have acted on it in
that way and if the buyer didn't want a garage, they would have been within the footprint.
Mr. Lowman made a motion that Variance 401-10 be approved with amended variances of 15
feet on each side, resulting in 35 foot setbacks on the left and right side, and a 75 foot rear yard variance
as proposed, resulting in a rear yard setback of 25 feet. Mr. Shirley seconded the motion and it passed
by a majority vote.
PUBLIC HEARING
Variance Request #02-10 of Old Virginia Land, LLC, for a 40 foot right side yard
variance, resulting in a 10 foot right side yard setback, a 25 foot left side yard variance,
resulting in a left side yard setback of 25 feet, and a 75 foot rear yard variance, resulting
in a rear yard setback of 25 feet, for the construction of a single family dwelling. This
property is located south on Abelia Trail, Section 30, Lot 7 of Enon Springs, Shawneeland,
and is identified with Property Identification Number 69A-1-30-7 in the Back Creek
Magisterial District.
ACTION — VARIANCE APPROVED WITH MODIFICATION
Mr. Johnston presented the staff report. This property is located two lots east of the prior
variance request; it is a corner lot. Mr. Johnston stated that the same floor plan is going to apply to this
lot as the previous one. The applicant is requesting a 40 foot right side yard variance, resulting in a 10
foot right side yard setback, a 25 foot left side yard variance, resulting in a left side yard setback of 25
feet, and a 75 foot rear yard variance, resulting in a rear yard setback of 25 feet, for the construction of a
single family dwelling. Due to the narrowness, shallowness, size and shape of this lot, a variance is
Frv.derick linty Bol �Roning Appeals 1534
Minutes o ebruary 10
necessary, thereby proving a hardship.
Mr. Givens asked about setbacks since this is a corner lot. Mr. Johnston replied that in the RA
District, a typical front setback, on both fronts of a corner lot, would be 60 feet, and the front is always
considered the shorter of the two sides.
Mr. Eddie Yost stated this is basically the same situation as the previous variance request.
Mr. Perry stated that the foot print the Board has been presented with is not the floor plan shown
on the plat. Mr. Johnston explained that the surveyor, Michael Artz, drew a building on the plat to
utilize the whole setback area. Mr. Perry stated we have never granted a variance based on a
hypothetical floor plan.
Mr. Shirley stated that the first variance was easier for him to approve, but a corner lot is more
difficult because lie doesn't know where the house will be situated.
Ms. Yost stated that the street address will be AbeIia Trail, but the house will probably face
Capon Springs Trail.
Chairman Scott asked for citizen comments; there were none. Chairman Scott closed the public
hearing portion of the meeting.
Discussion
Members discussed the possible location of the house and the appropriate approvable setbacks.
Mr. Cheran stated the Board can accept what was applied for and not get into the floor plan
issue. The Board can accept what is on the plat submitted and affix the setbacks and it will be the
builder's responsibility to build within that setback.
Mr. Givens made a motion that Variance #02-10 be approved with amended variances of 35 feet
on the right side, resulting in a 15 foot right side setback, a 5 foot variance on the left side, resulting in a
55 foot left side setback, and a 75 foot rear yard variance as proposed, resulting in a rear yard setback of
25 feet. Mr. Shirley seconded the motion and it passed by a majority vote.
PUBLIC HEARING POSTPONED BY APPLICANT
Appeal Application #03-10 of Brad Pollack, Applicant, who is appealing the decision
of the Zoning Administrator as to permitted uses in the RP (Residential Performance)
District under Section 165-402.02 of the Frederick County Zoning Ordinance. The
subject property is located at 2032 Martinsburg Pike, and is identified with Property
Identification Number 43-A-130 in the Stonewall Magisterial District.
By unanimous vote, the Board of Zoning Appeals voted to postpone Appeal Application 403-10
until March 16, 2010.
ACTION — BOARD WILL ACT ON MARCH 16, 2010
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Frederick Fvupty Bolr�l 70oning Appeals
Minutes o ebbruary b,
Other
Mr. Robert Perry was nominated as Vice Chairman. The vote was unanimous to elect Mr. Perry
as Vice Chairman. Mr. Kevin Scott was nominated as Chairman. The vote was unanimous to elect Mr.
Scott as Chairman. Ms. Bev Dellinger was nominated as Secretary. The vote was unanimous to elect
Ms. Dellinger as Secretary.
As there are no changes, alterations or deletions to the previous Bylaws, the Bylaws are adopted
as presented.
As there was no further business, the meeting adjourned at 4:45 p.m.
Respectfully submitted,
Kevin Scott, Chairman
Bev Dellinger, Secretary
1536
r�derick a ty Board� ff oning Appeals
Mmutes o' 1 e ruary 16, 0 0
APPEAL APPLICATION #03-10
BRAD POLLACK, APPLICANT
LQ Staff Report for the Board of Zoning Appeals
l Prepared: March 5, 2010
Staff Contact: Mark R. Cheran, Zoning Administrator
This report is prepared by the Frederick Couno) Planning Staff to provide information to the
Board of Zon ing Appeals to assist them in making a decision ort this request. h may also be
useful to others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
February 16, 2010 Postponed by Applicant
March 16, 2010 Pending
February 16, 2010 Summary:
This appeal application was not heard by the Board of Zoning Appeals at their meeting on February
16, 2010. Mr. Cheran informed the Board at the beginning of their meeting that the applicant had
requested this application be postponed until the March 16, 2010 meeting due to his illness.
LOCATION: The subject property is located at 2032 Martinsburg Pike.
MAGISTERIAL DISTRICT: Stonewall
PROPERTY ID NUMBER: 43-A-130
PROPERTY ZONING & USE: Zoning:
Land Use
ADJOINING PROPERTY ZONING & USE:
North: RP (Residential Performance)
East: RA (Rural Areas)
South: RP (Residential Performance)
West: RP (Residential Performance)
RP (Residential Performance) District
Public Utility
Land Use: Residential
Land Use: Vacant
Land Use: Residential
Land Use: Residential
APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick
County Zoning Ordinance in determining compliance and permitted uses in the RP (Residential
Performance) Zoning District.
Appeal Application #03-10, Brad Pollack, Applicant
March 5, 2010
Page 2
REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to
permitted uses in the RP (Residential Performance), Zoning District under Section 165-402.02 of the
Frederick County Zoning Ordinance.
STAFF COMMENTS: The applicant does not having standing to pursue an appeal to the Board of
Zoning Appeals (BZA) regarding alleged zoning violations on the property located at 2060
Martinsburg Pike. The applicant's address on the appeal application and complaint lists his address
at 148 N. Main Street, Woodstock, VA 22664. This location is approximately 35 miles from the
subject property of this appeal. This applicant has no personal nexus with the subject property nor is
he an adjoining property owner, or located within the viewshed of the subject property. As noted on
the application of this appeal, the applicant is not acting on behalf of any person or corporation.
The BZA is appointed by the Circuit Court as set forth and in accordance with the Code of Virginia
1950 as amended (Code), to hear and decide appeals from decisions of the Zoning Administrator..
Furthermore, the Code requires that a person making an appeal of the Zoning Administrator's
decision to the BZA must be a "person aggrieved". The Supreme Court of Virginia has held that an
aggrieved person is a person that is eligible to petition the Circuit Court for review of a BZA
decision. The Supreme Court held in Virginia Beach Beautification Commission v. Board of Zoning
Appeals, (Commission) 231 Va. 415, 419-20 (1986), that the Commission had no standing in the
lower court, as the Commission had no ownership or occupied any real property within or in close
proximity to the property at issue. Therefore, the Commission had no specific property interests to
be damaged.
The Court, in its ruling on a person aggrieved, was to allow localities some protection from
overzealous appeals of decisions of a Zoning Administrator from citizens who do not have standing
or property interest in those decisions. The BZA would have to hear appeals of the Zoning
Administrator's decision from any citizen within the Commonwealth if the threshold of a person
aggrieved was not adhered to. Based upon the holding in the above -referenced case, the applicant's
appeal before the BZA has no indication of owning or any interest in property proximate to the
property in question. As noted on the applicant's appeal application, the applicant is not acting on
behalf of any person or corporation. Therefore, the applicant is not a "person aggrieved" and the
appeal application is moot and cannot be heard. (Staff requested that the County Attorney review the
case law regarding standing in this appeal; memo is included.)
Section 165-402.02 of the Frederick County Zoning Ordinance provides for permitted land uses in
the RP (Residential Performance) Zoning District. Subsection (B) of Section 165-402.02 states:
Structures erre to he erected or land use for one or more of the folloi-ving uses - Number 6 of this sub-
section states: Utilities necessary to serve residential uses, including poles, lines, distribution
transformers, pines and meters. The property subject to this appeal has been used as a utility use
since 1986 and has an approved site plan. The site was modified in 1996 and 2008 with approved
site plans. The property has been, and is currently, in conformance with the requirements of the
Appeal Application #03-10, Brad Pollack, Applicant
March 5, 2010
Page 3
Frederick County Zoning Ordinance. Past Zoning Administrators and the current Zoning
Administrator have determined that utilities set forth by the Zoning Ordinance are permitted in all of
its residential districts.
STAFF CONCLUSIONS FOR THE MARCH 16, 2010 MEETING: Staff is requesting that the
BZA deny this appeal due to the applicant's lack of standing, or in the alternative, that the BZA
affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning
Ordinance, Chapter 165, Section 165-402.02 that utilities are an allowed use in the RP (Residential
Performance) Zoning District.
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From:
bpollack@shentei.net
Sent:
Tuesday, February 16, 2010 11:19 AM
To:
Mark Cheran
Cc:
bpollack@shentel.net
Subject:
RE: BZA Application
Mr. Cheran,
I am requesting a temporary tabling of this appeal due to my illness last week and continuing
confusion over some administrative issues.
Thank you for your assistance,
Brad Pollack
459-8600
-----Original Message -----
From: Mark Cheran[mailto:mcheran@co.frederick.va.us]
Sent: Tuesday, February 16, 2010 8:55 AM
To: Bradley G. Pollack
Subject: RE: BZA Application
Mr. Pollack, are requesting a tabling of this appeal. Please email me this request if you
want tabling you will be heard in March please be advised a fee of $500 will be need please
email when you receive this email ... Cheran
From: Bradley G. Pollack [rnailto:bpollack@shentel.net]
Sent: Saturday, February 13, 2010 4:14 PM
To: Mark Cheran
Subject: RE: BZA Application
Mr. Cheran,
Since stopping by for some copies at your office on Tuesday, I've had the flu.
I had hoped to be able to show you my ownership of an adjacent property and to
nail down what all three of my complaints were. Might it be possible to remove
this matter from the active docket of the Board until I recover and we can
share some clarification on these issues?
Let me know.
Thanks very much,
1
Brad Pollack
540-335-4712
-----Original Message -----
From: Mark Cheran [mailto:mcheran@co.frederick.va.us]
Sent: Monday, February 01, 2010 7:46 AM
To: Bradley G. Pollack
Subject: RE: BZA Application
Yes and 3:35 is the time
From: Bradley G. Pollack [mailto: bpollack@shentel.net]
Sent: Thursday, January 28, 2010 11:06 AM
To: Mark Cheran
Subject: RE: BZA Application
Dear Mr. Cheran,
Please confirm that this application will be on the BZA docket on Tuesday,
February 16, 2010, at 3:00 p.m.
Thanks very much,
Brad Pollack
---------------------------------------------
This message was sent using Shentel webMail.
http://WebMail.Shentel.Net
2
December 15, 2009
Mr. Bradley Pollack
Attorney at Law
148 North Main Street
Woodstock, VA 22664
COUNTY of FREDERICK
Department of Planning and Development
540/665-5651
FAX: 540/ 665-6395
RE: Complaint of 2032 Martinsburg Pike (AT&T P.O.P site)
Dear Mr. Pollack:
This letter is in reference to the complaint that was received via e-mail regarding the
above -reference property. Your e-mail compliant noted the property being used as a
telecommunication facility. The property is not being used as a commercial
telecommunication facility, as this use would require an approved Conditional Use
Permit from Frederick County.
The property has been used as a utility equipment building (Point of Presence) since
1986. The Frederick County Zoning Ordinance allows for utilities within the RP
(Residential Performance) Zoning District as a by -right use. As of this date, the property
is in compliance.
Contact me at (540) 665-5651 with any questions you may have.
Sincerely,
i
M rk R. Cheran
Zoning Administrator
0 R111 W111151
107 North Kent Street, Suite 202 - Winchester, Virginia 22601-5000
January 29, 2010
Mr. Robert Erickson
AT&T Corporation
One AT&T Way, Room 3B2216G
Bedminster, NJ 07921
RE: AT &T P.O.P Site; 2032 Martinsburg Pike
Frederick County, Virginia
Dear Mr. Erickson:
FILL COPY
COUNTY of FREDERICK
Department of Planning and Development
5401665-5651
FAX: 5401665-6395
This letter is in reference to an appeal filed against the Frederick County Zoning Administrator in
response to a complaint filed with regards to the allowed uses in'the RP (Residential Performance)
Zoning District. The complaint was determined to be invalid, as utilities is an allowed use in the RP
Zoning District and was not acted upon by Frederick County.
Specifically, the complaint was that the ROT site at this location was not an allowed use by code at
this location and is a commercial use that has expanded. This matter is scheduled to be heard at the
Frederick County Broad of Zoning Appeals, February 16, 2010, at 3:25 P.M. located at 107 N. Vent
St, Winchester, Virginia.
Call me at (540) 665-5651, if you have any questions on the matter.
Sincerely,
Mark R. Cheran
Zoning Administrator
MRC/bad
107 North Kent Street, Suite 202, • Winchester, Virginia 22601-5000
Mark Cheran
From:
Jeremy Coulson
Sent:
Monday, December 28, 2009 9:35 AM
To:
Mark Cheran
Cc:
Tim Barlow
Subject:
RF: Code Violation Report
As far as I know, either you or Dana were forwarded every email in question from Mr. Pollack. Tim searched out emails
from Mr. Pollack to Dana.
Jeremy
From: Mark Cheran
Sent: Monday, December 28, 2009 9:33 AM
To: Jeremy Coulson
Subject: FW: Code Violation Report
Anything on this...........................Cheran
From: Bradley G. Pollack [maiito:bpollack@shentel.net]
Sent: Saturday, December 26, 2009 4:44 PM
To: Mark Cheran
Subject: RF: Code Violation Report
Mr. Cheran,
Also, please forward me the two complaints other than the one at bottom.
Thank you,
Brad Pollack
-----Original Message -----
From: Bradley G. Pollack [mailto:bpollack@shentel.net]
Sent: Tuesday, December 22, 2009 1:25 PM
To: Mark Cheran
Subject: RB: Code Violation Report
Mr. Chearan,
Thank you for your response to our second complaint regarding 2032 Martinsburg
Pike. Please review my third and last complaint regarding 2032 Martinsburg Pike
which I filed last month to see whether you believe there are still no violations there.
Thanks very much.
Sincerely,
Brad Pollack
-----Original Messaye-----
From: Mark Cheran [mailto:mcheran@co.frederick.va.us]
Sent: Tuesday, December 22, 2009 11:29 AM
To: Bradley G. Pollack
Subject: RE: Code Violation Report
Mr. Pollack, I have received your 2"d complaint regarding 2032 Martinsburg Pike as stated in my letter
dated 15 Dec there are no violations at this site as of that date...................Cheran
From: Bradley G. Pollack [mailto: bpollack@shentel.net]
Sent: Wednesday, December 16, 2009 6:41 PM
To: Mark Cheran
Subject: FW: Code Violation Report
Dear Cheran:
I have your December 15, 2009, letter regarding one of the Complaints filed
regarding 2032 Martinsburg Pike. As you can see below, Jeremy Coulson at
least attempted to forward the Zoning Office three separate Complaints.
Please, therefore, see if you can find the other two and provide responses to
them as well.
Thank you for your assistance.
Sincerely,
Bradley G. Pollack
Attorney at Law
148 North Main Street
Woodstock, VA 22664
459-8600
459-8670 (fax)
-----Original Message -----
From: Jeremy Coulson [mailto:jcoulson@co.frederick.va.us]
Sent: Tuesday, December 08, 2009 11:38 AM
To: Bradley G. Pollack
Subject: RE: Code Violation Report
Mr. Pollack,
Yes I was. Actually, that email was intended for the Network Administrator who queried the mail server
for them. I suppose I know now why he never responded.
Thanks!
Jeremy Coulson
Webmaster, Frederick County
http://www.frederickcountvva.gov
(540) 665-5614
r�
From: Bradley G. Pollack [mailto:bpollack@shentel.net]
Sent: Tuesday, December 08, 2009 10:36 AM
To: Jeremy Coulson
Subject: RE: Code Violation Report
Mr. Coulson,
Were you able to find all three and forward them to the Zoning Office?
Let me know.
Thanks,
Brad Pollack
459-8600
-----Original Message -----
From: Jeremy Coulson[ma ilto:jcouIson @co.frederick.va.us]
Sent: Tuesday, December 08, 2009 8:44 AM
To bpollack@shentel.net
Subject: RE: Code Violation Report
1 <3 you, Tim.
Jeremy
From: bpollack@shentel.net [mailto:bpollack@shentel.net]
Sent: Wednesday, November 04, 2009 10:21 AM
To: Dana Johnston
Subject: Code Violation Report
Importance: High
***** VIOLATION REPORT ******
Violation Type:
Commercial
*Name:
Wesley Helsley
'Phone:
540-327-4195
*Entail:
bpollaeklrvshentel.net
*Mailing Address:
c/o Bradley G. Pollack
3
I
Attorney do Law
148 North Main Street
Woodstock, VA 22664
bpollack@slietitel.net
540-459-8600
540-459-8670
VIOLATION INFORMATION:
*Address of violation:
2032 Martinsburg Pike
*Can the violation be seen from the street?:
Yes
*Permission Granted?:
Yes
*Is the violation property occupied?:
Yes
*Description of violation:
Use of property is not permitted pursuant to § 165-402.02 and violates § 165-402.09(N)(2) and (3).
*Violation Submitted:
11/412009 10:20:47 AM from IP address 204.111.99.59
MEMORANDUM
TO: Mark R. Cheran
Zoning Administrator
FROM: Roderick B. Williams
County Attorney
DATE: January 27, 2010
RE: Board of Zoning Appeals — Appeal of Brad Pollack
COUNTY OF FREDERICK
Roderick B. Williams
County Attorney
5401722-8383
Fax 540/667-0370
E-mail:
rwillia@co.frederick.va.us
co.frederick.va.us
You have indicated that the Board of Zoning Appeals, at its meeting on February 16,
2010, will consider the appeal of Brad Pollack from your denial of his complaint regarding
alleged zoning violations at 2060 Martinsburg Pike, Parcel ID Number 43-A-130. You have
further indicated that Mr. Pollack listed his address, both in his complaint correspondence and
his appeal, as 148 North Main Street, Woodstock, Virginia 22664. This memorandum addresses
the issue of whether Mr. Pollack has standing to pursue his appeal to the BZA. I have prepared
this memorandum so that you may present it, or such portions of it as are appropriate, or
particular arguments from it, to the BZA.
Mr. Pollack does not have standing to pursue his appeal to the BZA. This is on account
of the fact that Mr. Pollack has not indicated to the County that he has any personal nexus with
the subject property. His own location is approximately 35 miles to the southwest of the subject
property. He is not an adjoining landowner, he is not located within the viewshed of the subject
property, nor is he what could be considered, under any reasonable interpretation, a person with
an interest located in the vicinity of the subject property. Furthermore, as you have explained,
none of his correspondence provides evidence that he is acting on behalf of any person so
situated.
As you know, the BZA is appointed by the Circuit Court, Va. Code § 15.2-2308(A), with
one of its functions being to hear and decide appeals from decisions of the Zoning Administrator,
Va. Code § 15.2-2309(A), such that, accordingly, the BZA acts in such matters in a quasi -
107 North Kent Street • Winchester, Virginia 22601
Mark R. Cheran, Zoning Administrator
January 27, 2010
Page 2
judicial capacity. Significantly, the Code of Virginia requires that the person taking the appeal
be a "person aggrieved ... by any decision of the zoning administrator ...". Va. Code § 15.2-
2311(A). The Code uses the same term "aggrieved" in designating those persons eligible to
petition the Circuit Court for review of a BZA decision. Va. Code § 15.2-2314.
In interpreting the term "aggrieved" with respect to a petition for review filed with a
circuit court, the Supreme Court of Virginia has held:
The term "aggrieved" has a settled meaning in Virginia when it becomes
necessary to determine who is a proper party to seek count relief from an adverse
decision. In order for a petitioner to be "aggrieved," it must affirmatively appear
that such person had some direct interest in the subject matter of the proceeding
that he seeks to attack. Nicholas v. Lawrence, 161 Va. 589, 592, 171 S.E. 673,
674 (1933). The petitioner "must show that he has an immediate, pecuniary and
substantial interest in the litigation, and not a remote or indirect interest." Id. at
593, 171 S.E. at 674. Thus, it is not sufficient that the sole interest of the
petitioner is to advance some perceived public right or to redress some anticipated
public injury when the only wrong he has suffered is in common with other
persons similarly situated. The word "aggrieved" in a statute contemplates a
substantial grievance and means a denial of some personal or property right, legal
or equitable, or imposition of a burden or obligation upon the petitioner different
from that suffered by the public generally. Insurance Ass'n v. Commonwealth,
201 Va. 249, 253, 110 S.E.2d 223, 226 (1959).
Virginia Beach Beautification Comrn'n v. Board of Zoning Appeals, 231 Va. 415, 419-20
(1986), see Carolinas Cement Co. v. Zoning Appeals Bd., 52 Va. Cir. 6 (Warren County 2000)
(finding standing, but in an instance in which the appellants had interests in properties located
approximately a mile and a half or less from the subject property), affirmed by Fritts v. Carolinas
Cement Co., 262 Va. 401 (2001).
Based upon the foregoing holding, the Supreme Court concluded that the Virginia Beach
Beautification Commission did not have standing in its case before the lower court, as the
Commission neither owned nor occupied any real property within or in close proximity to the
property at issue and, therefore, the Commission had "no specific property interests to be
damaged". Id. at 420. Likewise, in the matter now before the Frederick County BZA, the record
apparently contains no indication that Mr. Pollack owns or has an interest in property proximate
to the property in question or that Mr. Pollack is acting on behalf of such a person.
Were the BZA otherwise to find that a citizen located within 35 miles of the subject
property has standing, this would essentially mean that, at a minimum, any person located
anywhere in Frederick County, the City of Winchester, or Clarke County, as well as those in
roughly half of Warren County, and in portions of Loudoun County, Fauquier County, and
Shenandoah County would have standing to voice their complaints to the BZA, after being
denied by the Zoning Administrator. This would be a pool of likely in excess of 150,000 people
Mark R. Cheran, Zoning Administrator
January 27, 2010
Page 3
(or many more, depending on how much of Loudoun County is included) who could
theoretically claim standing, simply on the basis of mere geographic proximity, in an appeal
from the Zoning Administrator's decision (this also does not account for persons in all or part of
several counties in West Virginia and Maryland). Clearly, such a conclusion cannot be what the
General Assembly intended in enacting Va. Code § 15.2-2311. See Virginia Beach
Beautification Comm'n, 231 Va. at 419-20.
Accordingly, based upon the facts as set forth herein, Mr. Pollack does not have standing
to maintain his appeal to the BZA and the position of Frederick County would be that the BZA
should decline to hear his appeal,
Attachments:
Va. Code §§ 15.2-2308 through 15.2-2314 (sections concerning Boards of Zoning
Appeals)
Virginia Beach Beautification Comm'n v. Board of Zoning Appeals, 231 Va. 415 (1986)
LIS > Reports Pagel of 5
Code of Virginia
§ 15.2-2308. Boards of zoning appeals to be created; membership, organization, etc.
A. Every locality that has enacted or enacts a zoning ordinance pursuant to this chapter or prior enabling laws, shall
establish a board of zoning appeals that shall consist of either five or seven residents of the locality, appointed by the
circuit court for the locality. Boards of zoning appeals for a locality within the fifteenth or nineteenth judicial circuit
may be appointed by the chief judge or his designated judge or judges in their respective circuit, upon concurrence
of such locality. Their terms of office shall be for five years each except that original appointments shall be made for
such terms that the term of one member shall expire each year. The secretary of the board shall notify the court at
least thirty days in advance of the expiration of any term of office, and shall also notify the court promptly if any
vacancy occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be
reappointed to succeed themselves. Members of the board shall hold no other public office in the locality except that
one may be a member of the local planning commission. A member whose term expires shall continue to serve until
his successor is appointed and qualifies. The circuit court for the City of Chesapeake and the Circuit Court for the
City of Hampton shall appoint at least one but not more than three alternates to the board of zoning appeals. At the
request of the local governing body, the circuit court for any other locality may appoint not more than three
alternates to the board of zoning appeals. The qualifications, terms and compensation of alternate members shall be
the same as those of regular members. A regular member when he knows he will be absent from or will have to
abstain from any application at a meeting shall notify the chairman twenty-four hours prior to the meeting of such
fact. The chairman shall select an alternate to serve in the absent or abstaining member's place and the records of the
board shall so note. Such alternate member may vote on any application in which a regular member abstains.
B. Localities may, by ordinances enacted in each jurisdiction, create a joint board of zoning appeals that shall consist
of two members appointed from among the residents of each participating jurisdiction by the circuit court for each
county or city, plus one member from the area at large to be appointed by the circuit court or jointly by such courts
if more than one, having jurisdiction in the area. The term of office of each member shall be five years except that of
the two members first appointed from each jurisdiction, the term of one shall be for two years and of the other, four
years. Vacancies shall be filled for the unexpired terms. in other respects, joint boards of zoning appeals shall be
governed by all other provisions of this article.
C. With the exception of its secretary and the alternates, the board shall elect from its own membership its officers
who shall serve annual terms as such and may succeed themselves. The board may elect as its secretary either one of
its members or a qualified individual who is not a member of the board, excluding the alternate members. A
secretary who is not a member of the board shall not be entitled to vote on matters before the board. For the conduct
of any hearing, a quorum shall be not less than a majority of all the members of the board. No action of the board
shall be valid unless authorized by a majority vote of those present and voting. The board may make, alter and
rescind rules and forms for its procedures, consistent with ordinances of the locality and general laws of the
Commonwealth. The board shall keep a full public record of its proceedings and shall submit a report of its activities
to the governing body or bodies at least once each year.
D. Within the limits of funds appropriated by the governing body, the board may employ or contract for secretaries,
clerks, Iegal counsel, consultants, and other technical and clerical services. Members of the board may receive such
compensation as may be authorized by the respective governing bodies. Any board member or alternate may be
removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court that appointed
him, after a hearing held after at least fifteen days' notice.
E. Notwithstanding any contrary provisions of this section, in the City of Virginia Beach, members of the board
shall be appointed by the governing body. The governing body of such city shall also appoint at least one but not
more than three alternates to the board.
(Code 1950, §§ 15-825, 15-850, 15-968.8; 1950, pp. 176, 489; 1952, c. 688; 1962, c. 407, § 15.1-494; 1975, c. 641;
1976, c. 642; 1977, c. 172; 1982, c. 3; 1989, c. 27; 1992, c. 47; 1997, cc. 570, 587; 1998, cc. 346, 520, 528; 1999, c.
838; 2002, cc. 205, 545; 2007, c. 813; 2009, c. 734.)
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LIS > Reports Page 2 of 5
§ 15.2-2309. Powers and duties of boards of zoning appeals.
Boards of zoning appeals shall have the following powers and duties:
1. To hear and decide appeals from any order, requirement, decision or determination made by an administrative
officer in the administration or enforcement of this article or of any ordinance adopted pursuant thereto. The
decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct.
The board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its
decision.
2. To authorize upon appeal or original application in specific cases such variance as defined in § 15.2-2201 from
the terms of the ordinance as will not be contrary to the public interest, when, owing to special conditions a literal
enforcement of the provisions will result in unnecessary hardship; provided that the spirit of the ordinance shall be
observed and substantial justice done, as follows:
When a property owner can show that his property was acquired in good faith and where by reason of the
exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of
the ordinance, or where by reason of exceptional topographic conditions or other extraordinary situation or condition
of the piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the
strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the utilization of
the property or where the board is satisfied, upon the evidence heard by it, that the granting of the variance will
alleviate a clearly demonstrable hardship, as distinguished from a special privilege or convenience sought by the
applicant, provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance.
No such variance shall be authorized by the board unless it finds:
a. That the strict application of the ordinance would produce undue hardship relating to the property;
b. That the hardship is not shared generally by other properties in the same zoning district and the same vicinity; and
c. That the authorization of the variance will not be of substantial detriment to adjacent property and that the
character of the district will not be changed by the granting of the variance.
No variance shall be authorized except after notice and hearing as required by § 15.2-2204. However, when giving
any required notice to the owners, their agents or the occupants of abutting property and property immediately
across the street or road from the property affected, the board may give such notice by first-class mail rather than by
registered or certified mail.
No variance shall be authorized unless the board finds that the condition or situation of the property concerned is not
of so general or recurring a nature as to make reasonably practicable the formulation of general regulation to be
adopted as an amendment to the ordinance.
In authorizing a variance the board may impose such conditions regarding the location, character and other features
of the proposed structure or use as it may deem necessary in the public interest, and may require a guarantee or bond
to ensure that the conditions imposed are being and will continue to be complied with. Notwithstanding any other
provision of law, the property upon which a property owner has been granted a variance shall be treated as
conforming for all purposes under state law and local ordinance; however, the structure permitted by the variance
may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance
is required under the ordinance. Where the expansion is proposed within an area of the site or part of the structure
for which a variance is required, the approval of an additional variance shall be required.
3. To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by
§ 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting
property and property immediately across the street or road from the property affected, the board may give such
notice by first-class mail rather than by registered or certified mail.
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LIS > Reports
Page 3 of 5
4. To hear and decide applications for interpretation of the district map where there is any uncertainty as to the
location of a district boundary. After notice to the owners of the property affected by the question, and after public
hearing with notice as required by § 15.2-2204, the board may interpret the map in such way as to carry out the
intent and purpose of the ordinance for the particular section or district in question. However, when giving any
required notice to the owners, their agents or the occupants of abutting property and property immediately across the
street or road from the property affected, the board may give such notice by first-class mail rather than by registered
or certified mail. The board shall not have the power to change substantially the locations of district boundaries as
established by ordinance.
5. No provision of this section shall be construed as granting any board the power to rezone property or to base
board decisions on the merits of the purpose and intent of local ordinances duly adopted by the governing body.
6. To hear and decide applications for special exceptions as may be authorized in the ordinance. The board may
impose such conditions relating to the use for which a pert -nit is granted as it may deem necessary in the public
interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the
conditions imposed are being and will continue to be complied with.
No special exception may be granted except after notice and hearing as provided by § 15.2-2204. However-, when
giving any required notice to the owners, their agents or the occupants of abutting property and property
immediately across the street or road from the property affected, the board may give such notice by first-class mail
rather than by registered or certified mail.
7. To revoke a special exception previously granted by the board of zoning appeals if the board determines that there
has not been compliance with the terms or conditions of the permit. No special exception may be revoked except
after notice and hearing as provided by § 15.2-2204. However, when giving any required notice to the owners, their
agents or the occupants of abutting property and property immediately across the street or road from the property
affected, the board may give such notice by first-class mail rather than by registered or certified mail. If a governing
body reserves unto itself the right to issue special exceptions pursuant to § 15.2-2286, and, if the governing body
detennines that there has not been compliance with the terms and conditions of the permit, then it may also revoke
special exceptions in the manner provided by this subdivision.
8. The board by resolution may fix a schedule of regular meetings, and may also fix the day or days to which any
meeting shall be continued if the chairman, or vice-chairman if the chairman is unable to act, finds and declares that
weather or other conditions are such that it is hazardous for members to attend the meeting. Such finding shall be
communicated to the members and the press as promptly as possible. All hearings and other matters previously
advertised for such meeting in accordance with § 15.2-2312 shall be conducted at the continued meeting and no
further advertisement is required.
(Code 1950, §§ 15-831, 15-850, 15-968.9; 1950, p. 176; 1962, c. 407, § 15.1-495; 1964, c. 535; 1972, c. 695; 1975,
cc. 521, 641; 1987, c. 8; 1991, c. 513; 1996, c. 555; 1997, c. 587; 2000, c. 1050; 2002, c. 546; 2003, c. 403; 2006, c.
264; 2008, c. 318; 2009, c. 206.)
§ 15.2-2310. Applications for special exceptions and variances.
Applications for special exceptions and variances may be made by any property owner, tenant, government official,
depailment, board or bureau. Applications shall be made to the zoning administrator in accordance with rules
adopted by the board. The application and accompanying maps, plans or other information shall be transmitted
promptly to the secretary of the board who shall place the matter on the docket to be acted upon by the board. No
special exceptions or variances shall be authorized except after notice and hearing as required by § 15.2-2204. The
zoning administrator shall also transmit a copy of the application to the local planning commission which may send
a recommendation to the board or appear as a party at the hearing. Any locality may provide by ordinance that
substantially the same application will not be considered by the board within a specified period, not exceeding one
year.
(Code 1950, §§ 15-828 through 15-830, 15-832, 15-833, 15-850, 15-968.10.; 1950, p. 176; 1962, c. 407, § 15.1-496;
http;//leg I.state.va.us/000/ist/h3740375.HTM 1/27/2010
LIS > Reports
1966, c. 256; 1975, cc. 521, 641; 1989, c. 407; 1997, c. 587.)
§ 15.2-2311. Appeals to board.
Page 4 of 5
A. An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of
the locality 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, any
ordinance adopted pursuant to this article, or any modification of zoning requirements pursuant to § 15.2-2286.
Notwithstanding any charter provision to the contrary, any written notice of a zoning violation or a written order of
the zoning administrator dated on or after July 1, 1993, shall include a statement informing the recipient that he may
have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with this
section, and that the decision shall be final and unappealable if not appealed within 30 days. The appeal period shall
not commence until the statement is given. A written notice of a zoning violation or a written order of the zoning
administrator that includes such statement sent by registered or certified mail to, or posted at, the Iast known address
of the property owner as shown on the current real estate tax assessment books or current real estate tax assessment
records shall be deemed sufficient notice to the property owner and shall satisfy the notice requirements of this
section. The appeal shall be taken within 30 days after the decision appealed from by filing with the zoning
administrator, and with the board, a notice of appeal specifying the grounds thereof. The zoning administrator shall
forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
B. An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator
certifies to the board that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril
to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order granted by the
board or by a court of record, on application and on notice to the zoning administrator and for good cause shown.
C. In no event shall a written order, requirement, decision or determination made by the zoning administrator or
other administrative officer be subject to change, modification or reversal by any zoning administrator or other
administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or
determination where the person aggrieved has materially changed his position in good faith reliance on the action of
the zoning administrator or other administrative officer unless it is proven that such written order, requirement,
decision or determination was obtained through malfeasance of the zoning administrator or other administrative
officer or through fraud. The 60 -day limitation period shall not apply in any case where, with the concurrence of the
attorney for the governing body, modification is required to correct clerical or other nondiscretionary errors.
(1975, c. 521, § 15.1-496.1; 1983, c. 12; 1993, c. 780; 1995, c. 424; 1997, c. 587; 2005, cc. 625, 677; 2008, c. 378.)
§ 15.2-2312. Procedure on appeal.
The board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as
due notice to the parties in interest and make its decision within ninety days of the filing of the application or appeal.
In exercising its powers the board may reverse or affirm, wholly or partly, or may modify, an order, requirement,
decision or determination appealed from. The concurring vote of a majority of the membership of the board shall be
necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide in
favor of the applicant on any matter upon which it is required to pass under the ordinance or to effect any variance
from the ordinance. The board shall keep minutes of its proceedings and other official actions which shall be filed in
the office of the board and shall be public records. The chairman of the board, or in his absence the acting chairman,
may administer oaths and compel the attendance of witnesses.
(1975, c. 521, § 15.1-496.2; 1983, c. 444; 1986, c. 483; 1997, c. 587.)
§ 15.2-2313. Proceedings to prevent construction of building in violation of zoning ordinance.
Where a building permit has been issued and the construction of the building for which the permit was issued is
subsequently sought to be prevented, restrained, corrected or abated as a violation of the zoning ordinance, by suit
filed within fifteen days after the start of construction by a person who had no actual notice of the issuance of the
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Page 5 of 5
permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from the
decision of the administrative officer to the board of zoning appeals.
(1975, c. 521, § 15.1-496.3; 1997, c. 587.)
§ 15.2-2314. Certiorari to review decision of board.
Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any
aggrieved taxpayer or any officer, department, board or bureau of the locality, may file with the clerk of the circuit
court for the county or city a petition specifying the grounds on which aggrieved within 30 days after the final
decision of the board.
Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of
zoning appeals and shall prescribe therein the time within which a return thereto must be made and served upon the
relator's attorney, which shall not be less than 10 days and may be extended by the court. The allowance of the writ
shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board
and on due cause shown, grant a restraining order.
The board of zoning appeals shall not be required to return the original papers acted upon by it but it shall be
sufficient to return certified or sworn copies thereof or of the portions thereof as may be called for by the writ. The
return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision
appealed from and shall be verified.
If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it
may take evidence or appoint a commissioner to take evidence as it may direct and report the evidence to the court
with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the
determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the
decision brought up for review.
In the case of an appeal from the board of zoning appeals to the circuit court of an order, requirement, decision or
determination of a zoning administrator or other administrative officer in the administration or enforcement of any
ordinance or provision of state law, or any modification of zoning requirements pursuant to § 15.2-2286, the
findings and conclusions of the board of zoning appeals on questions of fact shall be presumed to be correct. The
appealing party may rebut that presumption by proving by a preponderance of the evidence, including the record
before the board of zoning appeals, that the board of zoning appeals erred in its decision. Any party may introduce
evidence in the proceedings in the court. The court shall hear any arguments on questions of law de novo.
In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted an
application for a variance, or application for a special exception, the decision of the board of zoning appeals shall be
presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that
the board of zoning appeals applied erroneous principles of law, or where the discretion of the board of zoning
appeals is involved, the decision of the board of zoning appeals was plainly wrong and in violation of the purpose
and intent of the zoning ordinance.
Costs shall not be allowed against the board, unless it shall appear to the court that it acted in bad faith or with
malice in making the decision appealed from. In the event the decision of the board is affirmed and the court finds
that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of
certiorari to pay the costs incurred in making the return of the record pursuant to the writ of certiorari. If the petition
is withdrawn subsequent to the filing of the return, the board may request that the court hear the matter on the
question of whether the appeal was frivolous.
(Code 1950, §§ 15-834 through 15-839, 15-850, 15-958.11; 1950, p. 176; 1962, c. 407, § 15.1-497; 1975, c. 641;
1988, c. 856; 1994, c. 705; 1996, c. 450; 1997, c. 587; 2001, c. 422; 2003, c. 568; 2005, cc. 625, 677; 2006, c. 446.)
http://leg 1.state.va.us/000/lst/li37110375.1-ITM 1/27/2010
Va. Beach Beautification v. Rd. of Zoning, 231 Va. 415, 344 S.E.2d 899 (1986)
IN THE SUPREME COURT OF VIRGINIA
VIRGINIA BEACH BEAUTIFICATION COMMISSION
V.
BOARD OF ZONING APPEALS OF THE CITY OF
VIRGINIA BEACH, ET AL.
Record No. 850570
Decided: June 13, 1986
Present: All the Justices
The Supreme Court of Virginia was the proper forum for this zoning appeal, where the trial court correctly decided that
the plaintiff is not a party "aggrieved" within the meaning of Code § 15.1-497 because it neither owns nor occupies real
property near the property that is the subject of the variance application and it has not otherwise demonstrated a direct,
immediate, pecuniary, and substantial interest in the decision to grant the variance.
Zoning — Land Use --- Variance — Aggrieved Party — Standing to Site — Pleading and Practice — Jurisdiction
Cities, Comities and Towns — Administrative Process Act
A city Board of Zoning Appeals granted a height and setback variance to permit construction of a freestanding advertising
sign. The local beautification commission sought to reverse the Board's decision and the trial court ruled that the commission
lacked standing in the circuit court proceeding. This is an appeal from the order dismissing the petition for certiorari.
1. The General Assembly did not intend that boards of zoning appeals be included within the meaning of "administrative agency"
as used in Code § 17-116.05.
2. The Court of Appeals does not have jurisdiction of final decisions of circuit courts on appeal from decisions of boards of
zoning appeals because appellate jurisdiction of such cases lies in the Supreme Court under § 8.01-670(A)(3).
3. In order for a person to be "aggrieved" it mist affirmatively appear that he had some direct interest in the subject matter of the
proceeding that he seeks to attack. The petitioner must show that he has an immediate, pecuniary and substantial interest in the
litigation, and not a remote or indirect interest.
4. The commission involved in this present action neither owned nor occupied property near that subject of the variance, and did
not demonstrate otherwise any direct, inuriediate, pecuniary and substantial interest, and hence it was not error to find it not a
party "aggrieved" within Code § 15.1-497. [Page 4161
Appeal from a judgment of the Circuit Court of (]re City of Virginia Beach. Hon. Phillip L. Russo, judge presiding.
4ffirmed.
Richard M. Swope (Williams, Worrell, Kelly & Greer, P.C., on brief), for appellant.
Charles M. Salle; R. J. Nutter, It (Grover C. Wright, Jr., on briefs), for appellees.
COMPTON, J., delivered the opinion of the Court.
In this land use controversy, we decide whether this Court has jurisdiction of the appeal and whether the petitioner had
standing in the trial court as an aggrieved party.
In February 1985, appellee Board of Zoning Appeals of the City of Virginia Beach (Board) granted appellee Bonney Road
Hotel Associates (Hotel) a height and setback variance to permit constriction of a freestanding sign advertising a hotel situated
near (lie Virginia Beach -Norfolk Expressway. In March 1985, appellant Virginia Beach Beautification Commission
(Commission) filed in the court below a petition for a writ of certiorari, pursuant to Code § 15.1-497, seeking reversal of the
Board's decision, Following a hearing, the trial court ruled that the Commission lacked standing in the circuit court proceeding.
We awarded the Commission an appeal from the May 1985 order dismissing the petition for certiorari.
The issue of appellate jurisdiction is raised by a motion to dismiss filed by the Hotel. It contends the Commission has
appealed to the wrong court and that the appeal properly lies in the Court of Appeals of Virginia. The Hotel notes that the Court
of Appeals has exclusive jurisdiction over cases from circuit courts deciding appeals from administrative agencies. According to
the Hotel, the Board is an administrative agency. The Hotel says this matter reached the Board initially as an appeal from a
decision of a zoning administrator, see Code §§ 15.1-495(a) and 15.1-496.1, and that we have held that an appeal to a zoning
board is the exhaustion of air administrative remedy. See Gayton Triangle Land Co. v. Henrico County, 216 Va. 764, 222 S.E.2d
570 (1976). Therefore, it concludes, the petition for certiorari filed in the trial court [Page 4171 was an appeal from a decision of
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an administrative agency. We disagree.
[I] As pertinent here, the statute delineating the Court of Appeals' jurisdiction provides that "[a]ny aggrieved party may
appeal to the Court of Appeals from ... [a]ny final decision of a circuit court on appeal from a decision of an administrative
agency." Code § 17-116.05(1). Significantly, the statute focuses on the nature of the entity making the decision rather than the
substance of the decision itself, That is, the statute deals with a decision made by an administrative agency and not with an
administrative decision made by some entity that is not purely an administrative agency. The crucial issue, therefore, is whether a
board of zoning appeals is an "administrative agency," within the meaning of the statutory provision.
The statutes dealing with the Court of Appeals do not define "administrative agency." However, the General Assembly has
established a definition of "agency" applicable to the general field of administrative decisions. In the Administrative Process Act,
Code §§ 9-6.14:1 to -6.14:25, "agency" means "any ... board ... of the state government empowered by the basic laws to make
regulations or decide cases." § 9-6.14:4(A). Entities exempted by the General Assembly from the provisions of the
Administrative Process Act include municipal corporations and counties. § 9-6.14:4. 1 (A)(6).A board of zoning appeals is not a
board of the state government. Rather, such an entity is established by either a municipal corporation or a county under Code §
15.1-494. Consequently, guided by the manner in which the word "agency" has been employed in administrative law enactments,
we believe the General Assembly did not intend that boards of zoning appeals be included within the meaning of "administrative.
agency" as used in § 17-116.05(1).
[2] This means that the Court of Appeals does not have jurisdiction of final decisions of circuit courts on appeal from
decisions of boards of zoning appeals. Appellate jurisdiction of such cases lies in this Court under Code § 8.01-670(A)(3). This
holding assumes, but does not decide, that a petition for certiorari under § 15.1-497 is an "appeal" from a decision of a board of
zoning appeals, within the meaning of § 17-116,05(1). See Allslar Towing, Ine. v. City of lexamlria, 231 Va, 421, 344 S.E.2d
903 (1986) (proceeding that attacked municipality's procurement decision [Page 4181 was not an "appeal" but an independent
action at law) decided today.
Our jurisdictional conclusion is buttressed by a practical consideration. Boards of zoning appeals as well as the governing
bodies of municipalities and counties decide questions of land use. Without question, this Court has jurisdiction of appeals from
final judgments of circuit courts which review decisions of such governing bodies on land use questions. Code § 8.01-670(A)(3).
Certainly, the General Assembly did not intend that jurisdiction of appeals stemming from land use decisions of boards of zoning
appeals would be in the Court of Appeals while jurisdiction of appeals on the same subject from decisions of governing bodies
would be in this Court. We will not attribute to the General Assembly an intention to create such an illogical and inconsistent
jurisdictional arrangement.
Upon the issue of standing, the record shows that the Virginia Beach Beautification Commission is a nonstock Virginia
corporation with a membership of over 400 persons and organizations. Its stated goal is "to help make and keep Virginia Beach
one of the most beautiful cities in the state." One of its corporate purposes is "to take all ... reasonable action as may be
appropriate to eradicate or screen from view ugly and unsightly objects and areas." The Commission owns no real property and
pays no taxes in the City. An individual or organization from Virginia Beach may qualify for Commission membership upon
invitation of the board of directors and payment of nominal annual dues.
At the Board hearing on the Hotel's request for the variance, a Commission representative appeared in opposition to the
request. Following the adverse decision, the Commission authorized counsel to file the present petition for a writ of certiorari.
Code § 15.1-497 provides that any "person" who is "aggrieved" by any decision of a board of zoning appeals, "or any
taxpayer," may present to the appropriate circuit court a petition for certiorari to review the decision. Within the same chapter of
the Code, § 15.1-430(f) provides that: ""Person' means individual, firm, corporation or association."
The question then becomes whether the Commission is a "person" that is "aggrieved," under the circumstances of this case,
making it a proper party to proceed by certiorari in the circuit court. [Page 4191
The Commission argues that it is a "corporation" and "association," and thus is included within the definition of "person." It
notes that subsection (f) above was added to the Code in 1962 (Acts 1962, cit. 407 at 643) following the decision in Citizens
Association v. Schumann, 201 Va. 36, 42, 109 S.E.2d 139, 143 (1959), In that case, the Court mentioned but did not decide a
similar question of standing. The Commission argues that the General Assembly decided to "clear the air" after reference was
made in the case to the problem of standing and to permit associations which owned no real estate to become proper parties in
proceedings of this kind.
In addition, the Commission, anticipating the argument that ownership of real estate is a prerequisite to aggrieved -party
status, contends that § 15.1-497 makes a clear distinction between any person "or" taxpayer. It asserts that if the legislature
intended "to limit an aggrieved party to the owner of real estate, the legislature could easily have provided for that when adding §
15.1-430(f) by making the definition of 'person' to include a taxpayer status or by amending § 15.1-497 to read in the
conjunctive 'person and taxpayer or'landowner oral taxpayer."' The Commission says, "This was not done by the legislature
and the message is clear." We perceive a different message.
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We will agree with the Commission that it qualifies as a "person" under the statutes in question. But we do not agree that the
Commission is a person "aggrieved" under y 15.1-497.
[3] The term "aggrieved" has a settled meaning in Virginia when it becomes necessary to determine who is a proper party to
seek court relief from an adverse decision. In order for a petitioner to be "aggrieved," it must affirmatively appear that such
person had some direct interest in the subject matter of the proceeding that he seeks to attack. Nicholas v. Lam-ence, 161 Va.
589, 592, 171 S.E. 673, 674 (1933). The petitioner "must show that lie has an immediate, pecuniary and substantial interest in the
litigation, and not a remote or indirect interest," Id. at 593, 171 S.E. at 674. Thus, it is not sufficient that the sole interest of the
petitioner is to advance some perceived public right or to redress some anticipated public injury when the only wrong lie has
suffered is in common with other persons similarly situated. The word "aggrieved" in a statute contemplates a substantial
grievance and means a denial of some personal or property right, legal or equitable, or imposition of a burden or obligation upon
the petitioner [Page 4201 different from that suffered by the public generally. Insinance Assn v. Conurrornvealth, 201 Va. 249,
253, 110 SX.2d 223, 226 (1959).
[41 In the present case, the Commission, for example, neither owns nor occupies real property within or in close proximity to
the property that is the subject of the variance application, Indeed, the Commission owns no property at all. And it has not
otherwise demonstrated a direct, immediate, pecuniary, and substantial interest in the decision to grant the variance to the height
and setback requirements applicable to freestanding signs in the City. The organization is merely a nonstock corporation with no
specific property interests to be damaged. See Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972).
Accordingly, we hold that the trial court correctly decided that the Commission is not a party "aggrieved" within the meaning
of Code § 15.1-497. Thus, the Hotel's motion to dismiss will be denied and the judgment below in favor of the Board and the
Hotel will be
Affirmed.
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APPLICATION FOR APPEAL.
IN THE
COUNTY OF FREDERICK, VIRGINIA
Appeal Application 4
Submittal Date
Fee Paid ✓`es 'nitMIS:
.-OF `ICE USE ONLY
Subinittat Deadline
For the meeting of
MUST BE TYPED OR FILLED t 1UT IN fNK - PLEASE PRINT
1. The applicant is to list the owners / adult occupants or parties in interest of the
property . (Check one)
2. APPLICANT: OCCUPANT: (if different)
ADDRESS 14 !V AF 4 _)� ADDRESS � Wood-J"cl(" VA -'7za0q -
TELEPHONE: 7 q — & 0 TELEPHONE:
1 The prol)erty is located at (give exact directions and include State Route numbers):
2,a�-L f?vr '4s bull- Pi ,Ke
4. iftagisterial District: � G
a. Property Identification No.:
6. The existing zoning of the property is: {�(�r' f 1' fl'I'l �%4 CC9)
7. The existing use of the property is: Camme,-el'a( l rid u vl' i
8. Adjoining Property:
USI ZONING
North C�srd��, G � (CP
East P
South f `'
West -
9. Describe the decision being appealed. I(A�tttaeh a copy/ of the writ
ten decision)
CL
S
10. Describe the basis of the appeal, indicating your reasons) for disagreeing with the decision.
(This may be provided on separate/ sheet.)
rfl l / l A � 'VA D .%mss? C— e- IL
11. Additional comments, if any:
m
12. The Following names and addresses are all of the individuals, fnrns, of corporations owning
property adjacent to the property for which the appeal is beirng sought, including Properties at the sides,
rear, and in frwnt of (across street from) the subject property. (Use additional pages if necessary.)
These people will be notified by mail of this application: Please list complete 14 -digit aro ner
identification number:)
NAME
�
W t- C I r ��� `t
I C
7
-It J Al &—
l r r�f C I
JI)%I r-
MJ �[i
Address Y- d. 6oK 2� � ��G'1
2 e�
Property ID -9
Address `�l;
Property ID #
Address `7 S v' �? �' ji 46Z6
y
Property ID
Address ZO 7
Property ID
Address
Property ID #
Address
Property ID #
Address
Property ID #
Address
PropertyID #
Address
Property ID #
Address
Property ID #
Address
Property ID 4
14
93
AGREEMENT
APPEAL # 02 />
I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning
Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as
described herein. I agree to comply with any conditions required by the BZA.
I authorize die members of the BZA and Frederick County officials to go upon the property for %
site inspection purposes.
I hereby certify that all of the statements and information contained herein are, to the best of nay
knowledge, true.
SIGNATURE OF APPLICANT �cf DATE
APPLICANT // xho
SIGNATURE OF OWNER
(if other than applicant)
DATE
-OFFICE USE ONLY-
BZA PUBLIC HEARING OF /10 4T� ACTION: 3/16//0
- DATE -
.j APPEAL OVERRULED
APPEAL SUSTAINED SIGNED:
BZA CHAIRVIAN
DATE:
He'. 19,