Construction Law Insights

Bd. of Supervisors v. Bd. of Zoning Appeals, 2018 Va. Cir. LEXIS 23 (Fairfax Cnty. Feb. 13, 2018)

Board of Supervisors and the Zoning Administrator of Fairfax County (“Plaintiffs”) brought suit seeking a declaratory judgment overturning a decision made by the Board of Zoning Appeals of Fairfax County (“BZA”) on September 27, 2017, in favor of particular landowners regarding the need for a special permit to construct a ropes course on the landowner’s property. Plaintiffs contended that BZA’s initial determination from June of that year was never appealed and thus was invalidly reconsidered.

BZA had upheld the Zoning Administrator’s determination on the need for the permit. The landowners submitted supplemental materials to BZA and requested a rehearing via email. The rehearing request was submitted beyond the seven-day deadline allotted by BZA bylaws. BZA granted the rehearing on July 12, 2017, and the matter was reheard on September 27, 2017. After the rehearing, BZA ruled in favor of the landowners.

BZA argued Plaintiffs have no standing to challenge the validity of BZA bylaws and the actions taken pursuant to its bylaws. It further argued that Va. Code § 15.2-2314 provides the sole remedy for the Plaintiffs’ grievance concerning BZA’s decision. Therefore, the statute does not allow for relief by way of another cause of action. Finally, BZA argued that its determination to grant a rehearing was a final decision which Plaintiffs failed to appeal within the 30-day period allotted in Section 19-211 of the Fairfax County Zoning Ordinance, and so are barred from challenging its authority in the matter.

The Court recognized Va. Code § 15.2-2314 as the applicable statute when determining whether the Board has standing to appeal a BZA decision to the circuit court. The Court described the test to be applied to whether the Board of Supervisors had standing to ask for declaratory relief against BZA as fact-dependent: (1) There must be an actual controversy to which the Board is a party (in this case the Board stands as the aggrieved party); and (2) Declaratory relief can only be exercised if it will relieve the Board from the risk of BZA taking pointless action which would jeopardize the lawful and legitimate interests of the Board.

The court established that the right to assert declaratory relief is restrained by the requirement that the grievance be more than a mere loss on the merits in an administrative proceeding. The Board identified the actual controversy between the parties being whether BZA acted within the scope of its authority in deciding to reconsider the landowner’s appeal. Thus, the Court concluded that the Board has standing to challenge the actions of BZA via declaratory relief.

The Court found that the board of supervisors has a strong interest in the proper and uniform application of its zoning ordinances as improper decisions can substantially jeopardize the uniform and proper application of zoning ordinances and the goals those zoning classifications were enacted to achieve. Furthermore, a holding that would preclude a board of supervisors from seeking judicial review of a decision of a BZA would enable a BZA to exercise power free of accountability. Plaintiffs had pled an actual controversy sufficient to survive demurrer. BZA’s demurrer was overruled without the Court implying the ultimate resolution of the case.

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

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