Colandrea v. Zoning Appeals Board

45 Va. Cir. 112, 1998 Va. Cir. LEXIS 144
CourtLoudoun County Circuit Court
DecidedJanuary 5, 1998
DocketCase No. (Law) 19350
StatusPublished

This text of 45 Va. Cir. 112 (Colandrea v. Zoning Appeals Board) is published on Counsel Stack Legal Research, covering Loudoun County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colandrea v. Zoning Appeals Board, 45 Va. Cir. 112, 1998 Va. Cir. LEXIS 144 (Va. Super. Ct. 1998).

Opinion

BY JUDGE JAMES H. CHAMBLIN

This case is before the Court on a petition for a writ of certiorari filed by Richard Colandrea for a judicial review of a determination by the Board of Zoning Appeals of the Town of Middleburg (“BZA”) affirming a decision by the Zoning Administrator that, under the 1995 Middleburg Zoning Ordinance, the Petitioner is precluded from erecting a wall or fence along his front property line. After consideration of the pleadings, the return of the BZA, the transcript of the BZA hearing on June 4, 1997, the memoranda, the stipulation, and the arguments of counsel on December 22, 1997, the BZA decision is affirmed for reasons that follow.

Relevant Facts

Colandrea owns two contiguous properties, known a 103 and 107 Walnut Street, in the Town of Middleburg. There is a single-family dwelling on each property. Both properties are located in the R-2 Zoning District of the Town as set forth in the 1995 Zoning Ordinance.

In the early part of 1997, Colandrea began to replace a stockade fence located on the front property line at 103 Walnut Street. He began the construction of a new concrete, stucco, and stone wall to replace the fence by first digging trenches for the pouring of concrete footers. The proposed wall would range in height from two to eight feet.

[113]*113On March 6, 1997, after observing a trench approximately one hundred feet long, one foot in width, and two feet in depth, the Zoning Administrator advised Colandrea that the 1995 Ordinance required a zoning permit. After Colandrea applied for a zoning permit, he was advised by the Zoning Administrator by letter dated March 10, 1997, that a zoning permit was required for “substantial excavation” and that the 1995 Ordinance precluded fencing in the front yard of the property. The Zoning Administrator returned Colandrea’s application for a zoning permit.

Colandrea appealed the Zoning Administrator’s decision to the Board of Zoning Appeals for the Town of Middleburg. After a hearing on June 4, 1997, the BZA voted to affirm the decision of the Zoning Administrator. Colandrea subsequently filed this petition for writ of certiorari for this Court to review the BZA decision pursuant to Virginia Code § 15.1-497, now Virginia Code § 15.2-2314.

Legal Analysis

The parties offered a considerable amount of evidence about the following:

1. The lengthy history of fences and walls in front yards of other properties in the Town of Middleburg;

2. Other fences and walls currently existing in such front yards;

3. The “good design” and the aesthetically pleasing characteristics of the proposed wall;

4. The fence provisions of the 1972 Zoning Ordinance which were in effect prior to the 1995 ordinance; and

5. The amendments to the 1995 ordinance concerning fencing adopted by the Town Council in May 1997 while Colandrea’s appeal to the BZA was pending.

All of the above is interesting, but it is not relevant to a judicial review of the BZA’s decision. What is relevant is the language of the 1995 ordinance and how it applies to Colandrea’s proposed construction of a wall along his front property line.

The legal principles applicable to a judicial review of a BZA decision are well established:

1. The BZA decision is presumed to be correct.

2. A BZA decision can only be reversed or modified upon a showing by the appealing party that the board applied erroneous principles of law or that its decision is plainly wrong and in violation of the purpose and intent of the zoning ordinance. Foster v. Getter, 248 Va. 563, 566 (1994).

[114]*114The interpretation and construction of the 1995 ordinance are also involved in this judicial review. The legal principles relevant to the construction of a zoning ordinance are also well established:

1. The words of the ordinance are to be given their plain and natural meaning. McClung v. County of Henrico, 200 Va. 870, 875 (1959).

2. The purpose and intent of the ordinance should be considered, but the ordinance should not be extended by interpretation or construction beyond its intended purpose. Gough v. Shaner, 197 Va. 572, 575 (1955).

3. In reviewing a BZA decision, “great weight” is given to the interpretation of the ordinance by those officials charged with its administration. Cook v. Board of Zoning Appeals of the City of Falls Church, 244 Va. 107, 111 (1992). See also, Donovan v. Board of Zoning Appeals of Rockingham County, 251 Va. 271, 273 (1996).

Zoning Permit Issue

Section 55(a) of the 1995 Ordinance provides:

A zoning permit shall be required before any use may be substantially changed; substantial clearing, grading, or excavation may be commenced; and buildings or other substantial structures may be constructed, erected, moved, or substantially altered.

Section 14(62) of the 1995 ordinance defines a structure as “Anything constructed or erected for use, occupancy or ornamentation.”

The “by right” permitted uses in an R-2 zoning district are single-family detached dwellings and public parks. See Section 117 of the 1995 ordinance. Under Section 118 of the 1995 ordinance, the following accessory uses and structures are permitted in an R-2 zoning district:

(a) Home occupations.

(b) Accessory uses and structures customarily appurtenant to a permitted or approved special exception use. Accessory structures shall only be permitted in the side or rear yard.

Colandrea’s proposed wall is clearly something constructed or erected for use, occupancy, or ornamentation. Therefore, it is a “structure” as defined in the 1995 ordinance. It is also an “accessory structure” as defined in Section 118(b).

The BZA decision that construction of Colandrea’s proposed wall would constitute “substantial excavation” under Section 55(a) is not unreasonable or [115]*115plainly wrong. Excavation of a trench one hundred feet long, one foot wide, and two feet deep for footers for a concrete, stucco, and stone fence running two to eight feet in height is substantial.

The BZA determination that a zoning permit would be required under Section 55(a) is correct and the decision is affirmed.

Fence in Front Yard Issue

As shown above, the proposed fence or wall is an “accessory structure” which is only permitted in a side or rear yard under Section 118(b) of the 1995 ordinance. Therefore, Colandrea cannot locate his proposed fence along the front property line of his property on Walnut Street if the provisions of the 1995 ordinance are given their plain and natural meaning.

The 1995 Zoning Ordinance contains no references to fences or walls except for one section concerning reduced buffers if there is a six-foot fence between properties. See Section 211 of the 1995 ordinance. The 1972 Zoning Ordinance considered a fence in excess of ten feet to be a structure. The virtual failure to mention fences in the 1995 ordinance was either intentional or an oversight by the Town Council.

Colandrea argues that the virtual failure to refer to fences in the 1995 zoning ordinance indicates that fences an’, not regulated in the Town.

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Related

McClung v. County of Henrico
108 S.E.2d 513 (Supreme Court of Virginia, 1959)
Gough v. Shaner
90 S.E.2d 171 (Supreme Court of Virginia, 1955)
Cook v. Board of Zoning Appeals
418 S.E.2d 879 (Supreme Court of Virginia, 1992)
Foster v. Geller
449 S.E.2d 802 (Supreme Court of Virginia, 1994)
Donovan v. Board of Zoning Appeals
467 S.E.2d 808 (Supreme Court of Virginia, 1996)

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Bluebook (online)
45 Va. Cir. 112, 1998 Va. Cir. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colandrea-v-zoning-appeals-board-vaccloudoun-1998.