Construction Law Insights

Caldwell-Bono v. State Bldg. Code Tech. Review Bd., 2019 Va. App. LEXIS 273 (Va. Ct. App. Nov. 26, 2019)

Deborah Caldwell-Bono and Benny Bono (the “Bonos”) own properties near the property of Kimberly Bolden and her mother (the “Boldens”) and operate an equestrian center on one of the properties. The Boldens’ property was zoned for agricultural use, but the Boldens were granted a special use permit to host weddings and other events in a converted barn. The Bonos alleged that the Boldens’ event business caused noise, traffic, and other safety risks that affected their equestrian center’s business and made it difficult to find renters. In support of their allegations, the Bonos submitted the opinion of an architect who stated the barn was a fire risk due to exposed wiring in the barn.

Over the Bonos’ protestations, the Building Commissioner determined that the Boldens’ barn was a “farm building,” and thus exempt from the Virginia Uniform Statewide Building Code (the “Building Code”) and inspection as a commercial property. The Bonos appealed to Roanoke County’s Building Code Board of Adjustment and Appeals (the “Appeals Board”), which affirmed the Commissioner's decision. The Bonos appealed that decision to the State Building Code Technical Review Board (the “Board”), which also affirmed the Building Commissioner’s decision. Both decisions found that the Bonos were not “aggrieved parties'' as the Virginia Administrative Process Act (“VAPA”) defined that term, and could therefore not pursue an administrative appeal of the Commissioner's decision. Bono’s challenge to the Bolden property zoning or issuance of the special permit because that was the subject of a separate action. The Bonos appealed to the circuit court. The circuit court sustained the County’s Demurrer, which again argued that the Bonos were not aggrieved parties under the VAPA. The Bonos appealed the circuit court’s decision.

The Court of Appeals held that the Bonos were not aggrieved parties under the VAPA and, therefore, lacked standing to appeal the Commissioner's determination through administrative action. VAPA provides that any party “aggrieved” by the Board’s decision have the right to direct review in the appropriate circuit court, whose judgment is further subject to appeal to or review by higher courts. The Court of Appeals held that the word “aggrieved” refers to “substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation.” The petition must show an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect interest.

The Bonos introduced no evidence that they suffered any deprivation of a personal or property right, or an imposition of any burden or obligation on their rights, from the determination that the Boldens’ barn was a “farm building.” Noise and activity complaints were germane to the Bonos’ appeal of the county’s zoning decision and issuance of a special permit, which was not before the court. The alleged fire risk was speculative and, despite their concerns, the Bonos’ business had suffered no demonstrable harm. The Court therefore found that the Bonos alleged a “remote and indirect interest” in the Building Commissioner's decision, not an “immediate, pecuniary and substantial interest” that would make them “aggrieved” in the present sense. Accordingly, they had no cause of action under the VAPA.

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