McLane v. Vereen

677 S.E.2d 294, 278 Va. 65
CourtSupreme Court of Virginia
DecidedJune 4, 2009
Docket081863
StatusPublished
Cited by8 cases

This text of 677 S.E.2d 294 (McLane v. Vereen) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLane v. Vereen, 677 S.E.2d 294, 278 Va. 65 (Va. 2009).

Opinion

677 S.E.2d 294 (2009)

Eileen M. McLANE, Fairfax County Zoning Administrator
v.
Derek B. VEREEN, et al.

Record No. 081863.

Supreme Court of Virginia.

June 4, 2009.

*295 Paul T. Emerick, Asst. County Atty. (David P. Bobzien, County Atty.: R. Scott Wynn, Senior Asst. County Atty., on briefs), for appellant.

Jerry K. Emrich (Walsh, Colucci, Lubeley, Emrich & Walsh, on brief), Arlington, for appellees.

Present: All the Justices.

OPINION BY Justice BARBARA MILANO KEENAN.

In this case involving fines imposed for a violation of a zoning ordinance, we consider whether the circuit court erred in ordering the payment of fines in an amount less than the rate specified in a consent decree endorsed by the affected property owners and Fairfax County.

In April 2006, Eileen M. McLane, the zoning administrator for Fairfax County (the County), issued a notice to Derek B. Vereen and Angelique Vereen stating that the Vereens had violated certain provisions of the Fairfax County Zoning Ordinance (the zoning ordinance) by keeping on their property *296 inoperable vehicles, tires, trailers, boats, a mobile home, and other debris. Four months later, after the Vereens had failed to take action to remedy the violation, the County filed a complaint in the circuit court asking the court to declare that the property was a "junk yard" prohibited by the zoning ordinance and to issue an injunction requiring the Vereens to remove the described items from their property.

After agreeing to settle their dispute, the County and the Vereens stipulated to the terms of their settlement in a consent decree, which the circuit court entered on June 4, 2007. The consent decree contained the parties' agreement that the Vereens' use of the property as a "junk yard" violated the zoning ordinance, and that the Vereens would bring the property into compliance with the zoning ordinance within 60 days.

In the consent decree, the parties also agreed that if the Vereens failed to comply with the decree's terms, the Vereens would pay to the County $100 per day "for every day the [c]ourt finds a violation." The decree stated that "[p]ayment of this amount shall be in addition to any additional sanctions the [c]ourt may impose upon a finding of contempt for any violation" of the decree. In addition, the decree prohibited the Vereens from using the property as a "junk yard" in the future.

Finally, the decree stated that the parties and the court agreed that the terms of the decree were reasonable and would not be modified "except by the written agreement of the parties ... with the approval of [the] [c]ourt." Above the circuit court judge's signature, the decree read, "THIS CAUSE IS ENDED."

At the Vereens' request, the County later extended the 60-day deadline for an additional 30 days, allowing the Vereens until September 2, 2007 to bring the property into compliance. The Vereens did not meet this extended deadline.

About four months later, the County filed a motion for a rule to show cause in the circuit court asserting that the Vereens had failed to comply with the terms of the consent decree. The County asked, in part, that the circuit court impose fines on the Vereens in the amount of $100 per day "for every day they [were] found to be in violation of the [c]onsent [d]ecree" until they complied with the decree's terms.

In accordance with the County's request, the circuit court ordered the Vereens to appear in court on February 15, 2008 to show cause, if any, why they should not be held in contempt for violating the terms of the consent decree. At a hearing held on that date, the circuit court granted the Vereens' request for a continuance until March 14, 2008.

At the March 14, 2008 hearing, the County presented evidence that the Vereens still had not complied with the terms of the consent decree. The circuit court continued the case a second time until April 4, 2008.

After completing the removal of the prohibited debris from their property on March 27, 2008, the Vereens filed a motion in the circuit court opposing the County's request for imposition of the fines. At a hearing in June 2008, the County requested that the circuit court order the Vereens to pay fines in the amount of $20,600 to cover the period of 206 days, from September 2, 2007 to March 27, 2008, that the Vereens were in violation of the consent decree.

After the hearing, the circuit court issued a letter opinion imposing fines in the total amount of $3,500. The circuit court stated that "[b]y seeking these sanctions now[,] after the Vereens are in compliance[,] the Zoning Administrator is no longer using [the fines] as an incentive to induce compliance, but rather as a penalty for the Vereens' delayed compliance." On June 18, 2008, the circuit court entered final judgment incorporating these holdings.

The County filed a motion for reconsideration, again asking the court to fix the fines in accordance with the terms of the consent decree. The circuit court denied the County's motion in an order dated July 9, 2008, which stated that the consent decree was not "self[-]executing," and that the fines of $100 per day were unreasonable "[b]ased on the specific facts present in this case." The order further stated that because the Vereens had brought their property into compliance *297 with the zoning ordinance, the fines requested by the County would constitute a penalty.

On appeal, the County argues that the circuit court did not have authority to amend the terms of the consent decree, because that decree became a final judgment 21 days after its entry and its terms were not later subject to change. The County further observes that the parties and the circuit court agreed that the decree's terms were reasonable, and that the decree could be modified only with the consent of all the parties. Therefore, the County asserts that the circuit court's judgment was plainly wrong because the circuit court lacked any authority to deviate from enforcing the stated terms of the decree.

In response, the Vereens initially raise two procedural challenges to the County's appeal. First, the Vereens argue that the County's appeal should be dismissed because the County failed to note an appeal from the circuit court's order of July 9, 2008 and instead noted its appeal after entry of the June 18, 2008 order. The July 9, 2008 order, which denied the County's motion for reconsideration, stated for the first time that the consent decree was not self-executing, and restated the court's earlier holding that the fines provided in the consent decree were unreasonable and imposed a penalty. According to the Vereens, the circuit court's holding that the consent decree was not self-executing was an alternative holding that the County failed to appeal.

Second, the Vereens contend that the County's appeal is barred because the County failed to object to the circuit court's determination that the consent decree was not self-executing. We disagree with these procedural arguments.

We have stated that a final order or decree is one that disposes of the entire matter before the court, giving all the relief contemplated and leaving nothing to be done by the court except the ministerial execution of the court's order or decree. Comcast of Chesterfield County, Inc. v. Board of Supervisors, 277 Va. 293, 301, 672 S.E.2d 870, 873 (2009); Upper Occoquan Sewage Auth. v. Blake Constr. Co., 275 Va.

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Cite This Page — Counsel Stack

Bluebook (online)
677 S.E.2d 294, 278 Va. 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclane-v-vereen-va-2009.