Construction Law Insights

Chilton-Belloni v. Angle ex rel. City of Staunton, 294 Va. 328 (2017)

The Supreme Court of Virginia ruled on an appeal of two related zoning actions that had been tried together. It addressed whether the circuit court had properly relied on principles of res judicata to refuse to stay an injunction brought by the City of Staunton’s Zoning Administrator against a landowner pending further proceedings before the City’s Board of Zoning Appeals (“BZA”). It also considered whether the circuit court properly granted the injunction against the landowner. The Court concluded that the circuit court had erred and reversed and remanded the injunction.

In 2006, a building official from the City of Staunton visited the home of Frank and Debra Chilton-Belloni to review plans to build a wall around the property which was located on a busy street. The official informed them that they could legally build the wall as planned and the Bellonis proceeded. However, in 2007, the Bellonis were contacted by the Zoning Administrator for the City who informed them that their nearly complete wall actually violated a Staunton zoning ordinance. The wall was built too high and obstructed the line of sight at a nearby intersection. 

The Bellonis obtained a variance from the BZA in February 2008. The City appealed the variance to the circuit court, arguing that BZA lacked authority to issue the variance. The applicable statute at the time, Code § 15.2-2309 (2007), required a clearly demonstrable hardship approaching confiscation in order to grant a variance. The circuit court agreed with the City and reversed the decision in June 2009. In July 2009, the statute was changed as to delete the “approaching confiscation” language. In 2011, the City filed criminal charges against the Bellonis for failure to remove the wall, pursuant to the 2009 circuit court order. However, prosecution was found to be time-barred.

In September 2013, Chilton-Belloni received a letter from the new Zoning Administrator, Sharon Angle, who advised her that the City had noticed that part of the wall was damaged and that any action on the part of Chilton-Belloni to perform any work on the wall, other than deconstructing it, would be considered another violation of City ordinance. In May 2014, Chilton-Belloni requested a modification or variance from the zoning ordinance, citing hardship.

Angle claimed she did not have the power to authorize a variance and that the changes to Code § 15.2-2309 were not retroactive. Angle sought an injunction compelling Chilton-Belloni’s compliance with the City Code and removal of the wall. Chilton-Belloni moved to stay the circuit court proceedings to allow the BZA to consider her request for a variance. The court denied the stay based on res judicata grounds.

On appeal, the Court found that the circuit court’s 2015 denial of the stay was based on the doctrine of res judicata and the circuit court’s conclusion that a change in the law is not a change in circumstance permitting Chilton-Belloni to revisit the BZA. The Court determined that the appeal and holding of the circuit court’s 2009 ruling were narrowly tailored to the single issue of whether the BZA exceeded its authority to grant the variance by improperly applying the law as it existed at the time. It held that the narrow nature of this ruling was insufficient to provide a basis to preclude Chilton-Belloni’s 2014 appeal to the BZA seeking a variance under subsequent law due to the fact that the circuit court had simply held, as a matter of law, that the BZA had erred.

The Court then addressed the 2007-2008 administrative appeal before the BZA and analyzed whether res judicata applied to administrative proceedings generally. The Court expressed concern about applying res judicata in administrative settings in which actions may not always be truly adjudicative. It concluded that a level of formality, akin to that of a court of competent jurisdiction, was required in order for adjudication to incite res judicata. With this in mind, the Court determined that the BZA, in issuing the variance, did not meet this standard in its manner of operation.

The Court further expressed that the use of a property should not be forever governed and restricted by the date at which an owner first seeks permission to alter the property. Instead, it should evolve along with zoning standards of the locality. Therefore, property owners and zoning appeals boards should be permitted to revisit a zoning question when the relevant ordinances or statutes have changed. The Court reversed the judgment of the circuit court regarding the stay and the injunctive relief sought.

PLDR Law Mark Burgin 1 PLDR Law Scott Kowalski 1 Wolf Tom v2 Stout Kenneth 2016

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