Property owners versus local zoning administrators: Round 2 goes to the government

The Legal Point

As you may recall from a column I wrote last year, the Virginia Supreme Court ruled in a 2017 case that Virginia law offered property owners protection from government zoning mistakes. In that case, Board of Supervisors of Richmond County v. Rhoads, Record No. 161209 (Aug. 31, 2017), the Court concluded that, by state statute, a property owner who received approval from the locality’s zoning official of plans to build a two-story garage on his property, and then built the garage, could not be forced to tear down the garage a year later when a new zoning official found that his predecessor’s approval was erroneous under the locality’s zoning ordinance. 

Specifically, the Court concluded that the property owners’ rights in constructing a two-story garage had “vested” and were not subject to later alteration by a new zoning administrator or by the County’s BZA or Board of Supervisors. 

In December 2018, the Virginia Supreme Court once again addressed a property owner’s assertion of “vested” rights in defense of a zoning violation. This time, however, the Court, applying another section of the Virginia Code, sided with the locality.

In Board of Supervisors v. Cohn, Record No. 171483 (Dec. 13, 2018), the question before the Court was whether the owners of a residential property that had three separate structures—
a house, a detached garage and a “garden house”—could be compelled by the local zoning authority to remove all residential features, such as kitchens; appliances; and plumbing, electrical and gas connections and piping from the garage and garden house due to property being zoned for “not more than one (1) dwelling unit.” 

Specifically, the Supreme Court addressed the contention of the property owners that their right to use the garage and garden house for residential purposes was protected by Virginia Code § 15.2-2307(D)(ii): 

Notwithstanding any local ordinance to the contrary, if… (ii) the owner of the building or structure has paid taxes to the locality for such building or structure for a period of more than the previous 15 years, a zoning ordinance shall not provide that such building or structure is illegal and subject to removal solely due to such nonconformity. 

The case was before the Supreme Court on appeal by the Board after the circuit court had ruled for the property owners at trial, concluding that Virginia Code § 15.2-2307(D)(ii) protected the property owners from having to destroy or otherwise modify the “nonconforming structures” because they had paid the taxes on the property assessed by the County for a period of more than the previous 15 years. After closely examining the statute, however, the Supreme Court reversed the circuit court decision and reinstated the zoning authority’s to compel the removal of the residential features of the garage and garden house.

The Supreme Court’s decision was premised on its conclusion that what the zoning authority was addressing in its removal order was not the structures but the “use” of those structures for residential purposes. 

After reviewing the language of the statute, the Court determined that while Virginia Code § 15.2-2307(D)(ii) may prohibit the compelled removal of the structures themselves, it “does not provide protection for the uses of those structures.” In short, the Court held that while the property owners may have vested rights in the presence of the structures on the property, they do not have vested rights in their use of the two structures as dwelling units in violation of the zoning ordinance. 

Read together, the two cases should remind Virginia property owners that while the General Assembly included in the Virginia Code some protections from decisions made by the local zoning authority, those protections are strictly confined to the actual terms used in the statutes and are not intended to relieve property owners from their own decisions to use their property in a manner inconsistent with applicable zoning restrictions. F

Frank A. Edgar, Jr
About Frank A. Edgar, Jr 4 Articles
Frank A. Edgar Jr. is an attorney with the law firm of Goldstein, Edgar & Reagan in Newport News. He can be reached at faedgarjr@ibglaw.com or 757-873-8773.

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