Construction Law Insights

Byrne v. City of Alexandria, 842 S.E.2d 409 (Va. May 28, 2020)

Thomas Byrne (“Byrne”) owned a home in within the “Old Historic Alexandria District” (“Property”) of the City of Alexandria (“City”). The central part of the Property was built in the 1780s but the front section was added in the 1870s in the then-prevailing Victorian architectural style. The City adopted an ordinance that provided “no building or structure … shall be erected [within the historic district] unless approved by the review board or, on appeal, by the governing body of the locality as being architecturally compatible.” The Property needed renovations and repairs when purchased by Byrne, so he submitted it plans for this work to the Board of Architectural Review (“BAR”), obtained the necessary approvals from the BAR, obtained the necessary permits, and proceeded with the work. Byrne’s proposal, however, did not include the removal or alteration of an existing fence along the property that was erected in the 1960s and consisted of a low brick “knee wall” surmounted by cast iron fencing.

During the reconstruction work, Byrne demolished the existing wall and fence to permit access for the renovation work. The BAR issued a violation notice to Byrne because he failed to obtain the approval prerequisite to the demolition and replacement of the fence. Byrne submitted a plan to install a Victorian metal “wicket and spear” fence pierced by two gates, a pedestrian gate and an eight-foot-wide double gate. The BAR referred Byrne’s application to the city staff, which concluded the “wicket and spear” design was architecturally and historically appropriate, but the eight-foot wide double gate was out of scale for pedestrian gates in the district. The BAR approved a “Certificate of Appropriateness” as to the materials and design of the fence, but with the condition that the width of the double gate not exceed six feet. Byrne appealed the BAR’s decision to the City Council, which held a hearing on Byrne’s appeal on February 24, 2018 and unanimously affirmed the decision of the BAR. Byrne appealed the City Council’s decision to the City of Alexandria’s Circuit Court. In response, the City filed a demurrer and a motion craving oyer of the legislative record that had been before the City Council when it made its decision. The court granted the City’s motion craving oyer. After the legislative record was filed, the court sustained the City’s demurrer and dismissed Byrne’s petition with prejudice on January 9, 2019. Byrne appealed to the Supreme Court of Virginia, arguing that the circuit court erred in (1) granting the City’s motion craving oyer and (2) sustaining the City’s demurrer.

The Court held that the circuit court did not err in granting the City’s motion craving oyer of the legislative record in Byrne’s appeal. A motion craving oyer is a remedy afforded to a litigant who has been sued on a claim based upon a document mentioned in a claimant’s pleading but not made a part of the record. The motion should be granted only where the missing document is essential to the claim. Here the legislative record was essential to Byrne’s claim.

The Court held that the circuit court did not err in sustaining the City’s demurrer. The legislative record filed contained a number of documents, including the meeting minutes of the initial BAR meeting, the recommendations of the City’s staff, the minutes of the second BAR meeting, the transcript of the public hearing held by the BAR, Byrne’s appeal to the City Council, the City’s staff’s report to the City Council, the transcript of the public hearing held by the City Council, and the minutes of the City Council’s final meeting. Virginia Code § 15.2-2306(A)(3) provides that, upon appeal from a decision of a locality’s governing body, the circuit court may reverse the governing body’s decision if the court finds, on review, that the decision of the governing body is contrary to law or that the decision was arbitrary and constituted an abuse of discretion. A city council acting on a certificate of appropriateness performs a legislative function. Such actions are presumed correct. Legislative action is reasonable if the matter in issue is fairly debatable. An issue is fairly debatable when the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions. Reasonable and objective persons might readily have reached different conclusions with regard to the architectural and historical appropriateness of the width and placement of Byrne’s proposed gate. That issue was fairly debatable. The legislative record added to the pleadings as a result of the motion craving oyer makes clear that the City Council, when deciding Byrne’s appeal, had all the essential facts before it, considered all the opinions and arguments presented by interested parties, and made its decision within its lawful authority.

PLDR Law Scott Kowalski 1 PLDR Law Mark Burgin 1

Thomas Wolf 002 Kenneth Stout 002 Jason Goldsmith 002 

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