The URL can be used to link to this page

Home My WebLink About03-10 CommentsFebruary 17, 2010 Mr. Brad Pollack, Esq. 148 N. Main St. Woodstock, VA 22664 RE: APPEAL APPLICATION #03-10 2032 MARTINSBURG PIKE Dear Mr. Pollack: COUNTY of FREDERICK Department of Planning and Development 540/665-5651. FAX: 540/665-6395 This letter is written to confirm your request to postpone the above referenced appeal until the March 16, 2010 Board of Zoning Appeals meeting. Please note that any new information and/or materials that you wish to include with the appeal application must be in this office by February 24, 2010. There is a $500.00 postponement fee charged for any public hearing that is postponed by the applicant. If you have any questions regarding this letter, please feel free to call me at 540-665-5651. Sincerely, f _.f V—Can Zoning Administrator MRC/bad cc: Robert Ericksen, AT&T Corp., One AT&T Way, Room 1A113A, Bedminster, NJ 07921 Thomas Lawson, Esq., PO Box 2740, Winchester, VA 22604 107 Forth. Kept Street, Suite 202 9 Winchester, Virginia 22601-5000 02/16/2010 12:26 FAX ■ LAWSON AND SILEK, P.L.C. 120 tXETER DRIVE, Sung; 200 POST OFFICE BOX 2740 WINCUESTPR, VA 22604 TcLEPHONE: (540) 665-0050 FACsrnIILE: (540) 722-4051 Z 001/003 FACSIMILE COVER SHEET Date: February 16, 2010 To: Mark Cheran, Zoning and Subdivision Administrator 665-6395 Roderick B. Williams, Esquire 667-0370 From: Thomas Moore Lawson, Esquire Our File No: 1102.001 Number of pages including cover: 3 Message: Please see the attached correspondence regarding today's BZA meeting. Thank you. The information contained in this facsimile message is information intended only for the use of the individual or entity named above, and may be attorney/client privileged and confidential. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the above address via the U.S. Postal Service. Thank you. FACWT ROYAL ADAREW- POST OMCT BOOL 602. FaOFT ROVAy YIb06+1A 22630, TZLKFROfV6: (576) 6359413. FACarrou: (,t46) , -.nCSIPOLE� (767135=6 91.99642. E1. MZAL� L :FAMPAXAODRE8 IOE6NIAwSTRRrr.6UM206.FAMVAXVMGZNIA#06TELFRONa:(M) RMAIL 8ITYXJ d.LUAWWS{OONNAy1.Nvg6OL8bCCOM T 02/16/2010 12:26 FAX LAWSON AND SYLEK9 P.L.C. 120 EXETER DRIVE, SUITE 200 PO -ST OFFICE Box 2740 WINCHESTER, VA 22604 TELEPHONE: (540) 665-0050 FACMMILE: (540) 7224051 February 16, 2010 Mr. Mark Cheran Zoning and Subdivision Administrator Department of Planning and Development 107 North Kent Street Winchester, VA 22601 Roderick B_ Williams, Esquire County Attorney 107 North Kent Street Winchester, VA 22601 Re: VIA E -MAZE AND FACSIMILE Dear Gentlemen_ CA 002/003 THOMAS MOORE LAWSON • TLAW-c;9)NALSPLC,CC1M Appeal Application #03-10 Our File No. 1102.001 This is to confirm our telephone conversation of this morning in which Z advised you that I have been engaged by AT&T to represent its interests with regard to the property located at 2032 Martinsburg Pike. I understand that a Board of Zoning Appeals hearing is scheduled for this afternoon, but that the Applicant has requested a continuance of the hearing citing poor health as the reason for same. I also understand that AT&T has sent a letter from its representative, Mr. Ericksen, who has his office in New Jersey, addressing the proposed continuance. AT&T maintains that its operations at this site are in full compliance with the Frederick County zoning ordinance and, therefore, objects to and is in opposition to the appeal filed by Mr. Pollack. AT&T further understands that there is a pending request for a continuance of the hearing and given that AT&T's representative is in New Jersey and that travel to attend this hearing would be very difficult, AT&T is, therefore, not objecting to the requested continuance by Mr. Pollack. Furthermore, AT&T would request that if this matter is continued and that a new hearing is set that it be set to allow sufficient preparation time to allow for the attendance of AT&T's representatives who will be traveling. PHOKYAOVALA.bOR&481 POa OViICB BOY602, FROM'R—,,1.VIRCWIA 226.10.7$Lyr-U ;(540)615941,q.FA.C80,1,9:(540)6dS9QI•&mAR.:SILLwj@LAwBON.wOan;IccOM FARiFAY AOORRBO: I OA06 MAW S79YEi, SOrtE Z00 FARiFAi{ Vmc]pIA ]20.10 TgLEV1tON8! (703) ]3.2679 • PACSIMR&! (703) 35yA190 - E-mA1L: TROM �S6Lww;Ory��vgRlYorv.ng7 02/16/2010 12:26 FAX 0003/003 Mr. Mark Cheran, et al. February 16, 2010 Page 2 Thank you for your attention to these matters. If you have any questions, please do not hesitate to give me a call. Very 1rfily Thom s TML:atd cc: AT&T Corporation Feb 16 2010 9:5Gnm 'at&t 19�� Turner Construction February 16, 2010 Mr. Mark R. Cheran Zoning Administrator County of Frederick Department of Planning and Development 107 North Kent Street, Suite 202 Winchester, VA 22601-5000 908-234-3624 Robert R. Erickson, PE, CCIM One AT&T Way Room 1 A 113A Bedminster, NJ 07821 Re: Appeal Application #03-10 of Brad Pollack, Applicant Dear Mr. Cheran, AT&T is the affected property owner of 2032 Martinsburg Pike, Winchester, VA. P.1 T: 908 234-8818 e-mail: raricksen®att.com AT&T is requesting that the Appeal Application #03-10 be tabled in order to give AT&T the opportunity to be present at the public hearing. Thank you for your consideration in tabling this Appeal. Please let me know if it is rescheduled. Sincerely, c' (SED Robert R. Ericksen, P.E., CCIM AT&T Corp One AT&T Way Room 1 A 113A Bedminster, NJ 07921 908 234-8819 office 908 432-4873 mobile Proutl Sponsor of the LL5. Olympic Team Mark Cheran =rom: bpollack@shentel.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 [mailto: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 z FIE viral COUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/665-6395 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: 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. Kent 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 MEMORANDUM TO: Mark R. Cheran Zoning Administrator FROM: Roderick B. Williams County Attorney P V DATE: January 27, 2010 RE: Board of Zoning Appeals — Appeal of Brad Pollack COUNTY OF FREDERICK Roderick B. Williams County Attorney 540/722-8383 Fax 540/667-0370 E-mail: rwillia@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 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. 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 Comm'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 Page] 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 teens. 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, legal 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.) http://legI.state.va.us/000/1st/h3740375.HTM 1/27/2010 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 a 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. http://legl.state.va.us/000/ist/h3740375.HTM 1/27/2010 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 permit 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 determines 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, department, 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://Ieg1.state.va.us/000/1st/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 last 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 fled 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 http://fegI.state.va.us/000/1st/h3740375.HTM 1/27/2010 LIS > Reports 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 ofzoiiing appeals. (1975, c. 521, § 15.1-496.3; 1997, c. 587.) 6 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://leg1.state.va.us/000/1st/h3740375.HTM 1/27/2010 Va. Beach Beautification v. Bd. 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 Sue — Pleading and Practice — Jurisdiction Cities, Counties 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 must 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, immediate, pecuniary and substantial interest, and hence it was not error to find it not a party "aggrieved" within Code § 15.1497. [Page 4161 Appeal from a judgment of the Circuit Court of the City of Virginia Beach. Hon. Phillip L. Russo, judge presiding. Affirmed. Richard M. Swope (Williams, Worrell, Kelly & Greer, P.C., on brief), for appellant. Charles M. Salle; R. J. Nutter, Il (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 construction of a freestanding sign advertising a hotel situated near the 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 an 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 Pagel of 3 Printed from CaseFinder, Geronimo Development Corporation 01/27/2010 an administrative agency. We disagree. [1] 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 Allstar Towing, Inc. v. City of Alexandria, 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, ch. 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 and taxpayer."' The Commission says, "This was not done by the legislature and the message is clear." We perceive a different message. Page 2 of 3 Printed from CaseFinder, Geronimo Development Corporation 01/27/2010 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 § 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. 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 [Page 4201 different from that suffered by the public generally. Insurance Assn v. Commonwealth, 201 Va. 249, 253, 110 S.E.2d 223, 226 (1959). [4] 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 Page 3 of 3 Printed from CaseFinder, Gerommo Development Corporation 01/27/2010 Mark Cheran From: Jeremy Coulson Sent: Monday, December 28, 2009 9:35 AM To: Mark Cheran Cc: Tim Barlow Subject: RE: Code Violation Report As far as I know, eitheryou 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 [mailto:bpollack@shentel.net] Sent: Saturday, December 26, 2009 4:44 PM To: Mark Cheran Subject: RE: 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: RE: 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.frederickcountyva.gov (540) 665-5614 E 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[mailto:jcoulson@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 *Email: bpoI lack(Da shentel.net *Mailing Address: c/o Bradley G. Pollack 3 Attorney ac Law 148 North Main Street Woodstock, VA 22664 bpollack@shentel.net 540459-8600 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: 11/4/2009 10:20:47 AM from IP address 204.111.99.59 COUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/665-6395 December 15, 2009 Mr. Bradley Pollack Attorney at Law 148 North Main Street Woodstock, VA 22664 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, 7 Mrk R. Cheran Zoning Administrator ufuf�owl161ITI 1 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000