PRESENT: All the Justices
PRINCE WILLIAM BOARD OF COUNTY SUPERVISORS, ET AL. OPINION BY v. Record No. 171030 JUSTICE S. BERNARD GOODWYN August 9, 2018 HENRY ARCHIE, JR.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Lon E. Farris, Judge
In this appeal, we consider whether the circuit court erred when it found that an
automobile graveyard was a lawful nonconforming use, because the use began prior to the
enactment of the county’s zoning ordinances and had not been discontinued.
BACKGROUND
On August 13, 2015, Henry Archie, Jr. (Archie) applied for a “verification of a non-
conforming use (automobile graveyard)” on three contiguous parcels in Prince William County
(the County): 13059 Minnieville Road (Parcel 20), 13065 Minnieville Road (a.k.a. 2421 Davis
Ford Road) (Parcel 20A), and 13069 Minnieville Road (Parcel 20B).
On November 5, 2015, Rebecca Horner, the Acting Zoning Administrator of Prince
William County (the Administrator), issued a letter to Archie determining that the use of Parcels
20 and 20B as an automobile graveyard were lawful nonconforming uses, but that use of Parcel
20A as an automobile graveyard was not a lawful nonconforming use.
The Administrator referenced a May 24, 1991 decree from the Circuit Court of Prince
William County finding that the use of Parcels 20 and 20B as an automobile graveyard was
lawfully nonconforming, because there had been an automobile graveyard on those parcels since
before 1958, the year the County adopted a zoning ordinance. The Administrator claimed that
the same decree “noted there was no evidence of any cars stored on [Parcel] 20A at that time.” The Administrator concluded that “any cars stored on lot 20A were put on the parcel after 1958
without any permit to do so,” and the use of that lot “as an automobile graveyard was not a
lawfully nonconforming” use. The Administrator ordered the use of Parcel 20A as an
automobile graveyard to cease.
BZA Hearing and Decision
Archie appealed the Administrator’s determination to the Prince William County Board
of Zoning Appeals (BZA). In support, he asserted that the use of Parcel 20A as an “auto[mobile]
graveyard was started in 1954 and has not stop[p]ed.”
The BZA held a hearing on March 28, 2016. Testimony and other evidence presented at
the hearing established the history of the automobile graveyard, including Parcel 20A, as well as
the involvement of Parcel 20A in two parallel court cases concerning its use in the 1980s and
early 1990s.
In 1954, Archie’s family established an automobile salvage business named Penny’s
Auto Parts on property that was later partitioned into Parcels 20, 20A, and 20B by deed dated
February 27, 1974. After partition, Archie’s parents, Henry Archie, Sr. and Annie Archie,
owned Parcels 20 and 20B, and his aunt, Dorothy Williams and her husband (Dorothy), owned
Parcel 20A. The three parcels are “stacked up like boxcars,” with Parcel 20 fronting Minnieville
Road, Parcel 20B in the back, and Parcel 20A in the middle between Parcels 20 and 20B. 1 There
is a 20-foot right-of-way running through the three lots. A certificate of zoning approval from
1 The three parcels are now zoned A-1 Agricultural, and automobile graveyards are not permitted by right or special use in any zoning category in the County. All automobile graveyards in the County must be “grandfathered” as lawful nonconforming uses that pre-date the enactment of the County’s zoning ordinances in 1958. 2 the County, requested by Dorothy on behalf of Penny’s Auto Parts, dated December 8, 1982,
approved the use of Parcel 20A as a “non-conforming auto[mobile] graveyard.”
In 1985, the then-County Zoning Administrator filed an action in the Circuit Court of
Prince William County (Chancery No. 21319) (Zoning Case) against the owners of the three
parcels upon which the automobile graveyard was being operated, alleging that the maintenance
of an automobile graveyard on those parcels violated the County’s zoning ordinance. While that
case was pending, Dorothy sold Parcel 20A to Land Management Groupe, Inc. (LMG) on
September 22, 1987. LMG was subsequently substituted in the stead of Dorothy as a defendant
in the Zoning Case.
On November 16, 1989, LMG filed a complaint against Archie in the Circuit Court of
Prince William County (Chancery No. 28641) (LMG Case) because, as stated in that complaint,
Archie was “currently storing automobiles, automobile parts, junk and other vehicles and vehicle
parts on [LMG’s] property [Parcel 20A] without [LMG’s] consent and expressly contrary to its
stated desires.”
On April 17, 1990, the circuit court entered an agreed order in the LMG Case which
“adjudged, ordered, and decreed that [Archie] has placed and stored junk vehicles and
automobile parts upon [Parcel 20A] without right or permission of [LMG] since at least
September 1989.” The order “perpetually enjoined [Archie] from placing or storing any vehicles
or any auto parts of whatever description upon [Parcel 20A] owned by [LMG], its successors or
assigns,” and directed Archie to remove the cars and car parts within 30 days.
On May 2, 1990, LMG’s counsel sent a letter to the County attorney in the Zoning Case
stating that, in the LMG case, Archie had been ordered to remove any cars and car parts from
Parcel 20A. LMG asked the County to dismiss LMG from the Zoning Case because “the
3 automobiles and their parts which caused the zoning violation, will be removed by May 17,
1990, [so] the action against [LMG] will become moot.”
Less than three weeks later, however, on May 23, 1990, LMG filed a motion in the LMG
Case to hold Archie in contempt, because he “has failed to comply with the Order of this Court
as several junk vehicles and several auto parts owned by defendant Archie remain present on the
property of [LMG].” Archie was found in contempt and fined as a result of the motion. Archie
testified at the BZA hearing that, after the order was entered, he removed some of the junk
vehicles from Parcel 20A, but “[o]ver a hundred” vehicles remained on the property.
On October 2, 1990, the circuit court entered an agreed order in the Zoning Case,
dismissing LMG from that case because “[i]t appear[s] that [LMG] has cleared its property of
junked vehicles and parts thereof by virtue of an Agreed Order in [the LMG Case].” Shortly
thereafter, on October 11, 1990, LMG filed a motion to amend its complaint in the LMG Case.
LMG’s amended complaint alleged that Archie was “currently storing” junk vehicles on Parcel
20A.
On May 24, 1991, the circuit court entered a final order in the Zoning Case, finding that
Archie carried on a business of operating an automobile graveyard, as defined in the County
zoning ordinance, prior to adoption of the County zoning ordinance on September 1, 1958, and
that the operation of the business had been continuous since that date. It thus found that the use
of Parcels 20 and 20B as an automobile graveyard was a lawful nonconforming use. It noted that
Parcel 20A “is not properly before the Court because no evidence was presented [by the County]
that there are any cars stored thereon and because a decree enjoining storage thereon has already
been entered by this Court in [the LMG Case].”
4 On August 19, 1991, an agreed final order was entered in the LMG Case, under the terms
of which Archie was to pay $6,000 for LMG’s attorneys’ fees and execute a note in favor of
LMG for an additional $6,000, payable in semi-annual installments of $250 each. The final
order did not order the removal of any vehicles from the property.
LMG defaulted on the payment of the deed of trust note on Parcel 20A, and Dorothy
repurchased the property at a trustee’s sale in February 1992. Archie purchased Parcel 20A from
Dorothy in 1995, and now owns all three parcels.
At the March 28, 2016 BZA hearing, Archie testified that all three parcels are used to
store “junk cars and car parts.” He stated that cars have been stored on Parcel 20A continuously
since 1954, and that he stored junk cars and car parts on Parcel 20A while Dorothy owned the
property, and also while LMG owned the property.
Regarding the order dismissing LMG from the Zoning Case, Archie testified that he had
not cleared all of the junk cars from Parcel 20A as of October 2, 1990, and that LMG had not
“taken any steps to clear the parcel,” which he knew because he “was there every day.” Archie
stated that LMG amended its complaint in the LMG Case shortly after entry of the October 2,
1990 order dismissing LMG in the Zoning Case, because Archie was still storing cars on Parcel
20A in October 1990.
Regarding the final order in the LMG Case, Archie stated that his payment to LMG
reflected in the final order was “[f]or having stored cars on their property,” but not for any
reimbursement of costs to clean up the property. Archie stated that he continued to store cars on
Parcel 20A before and after the agreed final order in the LMG Case. He asserted that he did “not
ever” “stop storing junk cars and car parts” on the property.
5 Archie presented six additional witnesses, who all confirmed that Parcel 20A had been
used continuously as an automobile graveyard. The witnesses confirmed that they “never, ever
saw any change” and the property was covered by “the salvage cars from one end to the other”
during the period from 1987 to 1995.
After Archie’s witnesses, the BZA opened the floor for remarks by other citizens. Three
citizens spoke, and confirmed that the land was “never cleared” during the time LMG owned it,
and they had “never seen a part of that land cleared of any vehicles.”
In response to questions from the BZA as to whether the property was actually ever
cleared of junk vehicles, the County did not provide any witnesses. It relied on the language in
the April 1990 order in the LMG Case, in which Archie was directed to move the cars and car
parts within 30 days, as proof that the property was in fact cleared of vehicles. The County
reasoned that LMG would not have been dismissed from the Zoning Case if the land had not
been cleared.
Archie responded that “the reality is that the cars were never cleared from the property,”
and there was never any fact-finding conducted in the Zoning Case, concerning what was in fact
on Parcel 20A. Further, he argued that regardless of who owned the property at any given point
in time, the evidence was uncontroverted that “the property was continuously used to store
vehicles, whether it was with or without permission.” He pointed to the affidavits from 13
additional witnesses who stated that “the property has been operating as an automobile salvage
yard from 1958 to the present with no interruption.” He noted that the County “let the situation
go on for more than 20 years,” and had not “presented any other evidence beside the court record
that the use was ever actually” discontinued.
6 At the close of the hearing, the BZA upheld the Administrator’s denial of the non-
conforming use verification for Parcel 20A by a vote of 3 to 2.
Circuit Court Hearing and Decision
Archie filed a petition for a writ of certiorari in the Circuit Court of Prince William
County and, on April 28, 2016, the circuit court issued a writ of certiorari for the complete record
of the BZA proceedings.
After a March 15, 2017 hearing, review of the record transmitted from the BZA
proceedings and consideration of the argument of counsel, the circuit court entered a final order
on May 2, 2017, reversing the BZA’s decision. The circuit court found that the “use of Parcel
20A as an automobile salvage business operation predated the zoning ordinances of Prince
William County,” and that the pre-existing lawful nonconforming use was never abandoned or
discontinued.
The circuit court acknowledged LMG’s “intent to discontinue the nonconforming use” of
Parcel 20A, and recognized that Archie did not have the legal right to use Parcel 20A while it
was owned by LMG. However, it found that the “actual use on Parcel 20A as an automobile
salvage business operation has not stopped since prior to the enactment of the Prince William
County Zoning Ordinances.” It concluded that because the “nonconforming use of Parcel 20A
[was] never [discontinued] . . . there was no abandonment of the nonconforming use,” and that
the automobile graveyard on “Parcel 20A is, therefore, a lawful, nonconforming use.” The
County appeals.
Two assignments of error have been granted:
1. The trial court erred when it ruled that Archie has a lawful nonconforming use to operate an automobile junkyard at 13065 Minnieville Road because Archie did not own the property between 1987-1992, did not have permission to operate an automobile junkyard on the property during the time period and did not have any
7 legal right to use the 13065 Minnieville Road as an automobile junkyard during that time period.
2. The trial court erred when it held that the nonconforming use was not discontinued because Land Management Groupe, Inc. purchased the property in 1987, and never continued the use of placing junk vehicles or parts or placed any junk vehicles or parts on 13065 Minnieville Road throughout its ownership period.
ANALYSIS
In an appeal from a circuit court decision reviewing a determination by a board of zoning
appeals, “this Court accords a presumption of correctness to the circuit court’s factual findings
but reviews its conclusions of law de novo.” W&W P’ship v. Prince William Cty. Bd. of Zoning
Appeals, 279 Va. 483, 486, 689 S.E.2d 739, 741 (2010) (citations omitted); see also Hale v.
Board of Zoning Appeals, 277 Va. 250, 268, 673 S.E.2d 170, 179 (2009) (noting that, when this
Court reviews a circuit court’s decision in such a case, the circuit court’s decision “is no longer
presumed to be correct on appeal and its conclusions of law are reviewed de novo”) (citation and
internal quotation marks omitted).
A circuit court’s interpretation of a statute or ordinance and its application of that statute
or ordinance to the facts of a case are reviewed de novo. Hale, 277 Va. at 269, 673 S.E.2d at
179. When reviewing the interpretation of a zoning ordinance, the “words of the ordinance are
to be given their plain and natural meaning,” and 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.” Donovan v. Board of Zoning Appeals, 251 Va. 271, 274, 467 S.E.2d 808,
810 (1996).
Code § 15.2-2307(C) provides for a locality to adopt a zoning ordinance that allows
nonconforming uses to continue unless the use is discontinued:
A zoning ordinance may provide that land, buildings, and structures and the uses thereof which do not conform to the zoning prescribed for the district in which 8 they are situated may be continued only so long as the then existing . . . use continues and such use is not discontinued for more than two years . . . .
(Emphases added.)
The County has adopted ordinances consistent with this statute. Under the Prince
William County Code (County Code), as a general matter, a “nonconforming use, lot or structure
may continue as it existed when it became nonconforming.” County Code § 32-601.20. See also
Hale, 277 Va. at 271, 673 S.E.2d at 180 (“It is well established in the law that as to an existing
use, absent condemnation and payment of just compensation, the landowner has the right to
continue that use even after a change in the applicable zoning classification causes the use to
become nonconforming.”). The County Code defines a “nonconforming use” as “[a]ny use that
was lawful on the date of enactment of this chapter, or amendment thereto, which has been
continued although otherwise rendered unlawful by such enactment or amendment.” County
Code § 32-601.10(1).
It is agreed that an automobile salvage business was started in 1954 on the property that
was subdivided into the three separate parcels. After the County adopted its zoning ordinances
in 1958, the business continued to operate on the parcels as a lawful nonconforming use. In
1982, the County confirmed Parcel 20A’s lawful nonconforming use as an automobile
graveyard.
Because it is undisputed that the use of Parcel 20A as an automobile graveyard was a
lawful nonconforming use as of the enactment of the County zoning ordinance, this case is
unlike the cases cited by the County, Board of Supervisors of Washington County v. Booher, 232
Va. 478, 481-82, 352 S.E.2d 319, 321 (1987) (concluding that an automobile graveyard
established after the enactment of a zoning ordinance prohibiting such use was not
grandfathered, and that a county board of supervisors could not grant an exception to the zoning
9 ordinance for that use by implication), and Dick Kelly Enterprises v. City of Norfolk, 243 Va.
373, 381-82, 416 S.E.2d 680, 685-86 (1992) (concluding that a landowner could not challenge a
zoning violation under a vested rights theory, because his use of the property as an apartment
complex rather than a motel was unlawful from the start). The automobile graveyard in Booher
was not established prior to the enactment of a zoning ordinance and had not been approved by a
special exception, and so was never a lawful use. 232 Va. at 481-82, 352 S.E.2d at 321. The
automobile graveyard here is also unlike the apartment complex in Dick Kelly Enterprises,
because the use of that property as an apartment rather than as a motel was in violation of the
certificate of occupancy and unlawful “from its inception.” 243 Va. at 381-82, 416 S.E.2d at
685.
This case is also unlike those cases cited by the County, concerning whether a
trespasser’s use can establish a lawful nonconforming use in the first instance. See, e.g., County
of Fayette v. Cossell, 430 A.2d 1226, 1228-29 (Pa. Commw. Ct. 1981) (concluding that an
adjacent landowner’s use of a parcel as a junkyard without formal permission from the parcel’s
landowner established a lawful nonconforming use of that property for a junkyard); but see
McMilian v. King Cty., 255 P.3d 739, 749-51 (Wash. Ct. App. 2011) (concluding that a
trespasser’s use “may not establish a valid nonconforming use” on a parcel, but also noting that a
parcel’s true owner could acquiesce in another person’s use of his property without express
permission, and that “[b]y virtue of permitting another individual’s use of the property, the
landowner obtains the right to continue that use even after it becomes a nonconforming use”).
It is undisputed that a lawful nonconforming use was established in the first instance in
this case. The issue in this case is whether the lawful nonconforming use of Parcel 20A as an
automobile graveyard, confirmed by the County in 1982, was somehow terminated.
10 A nonconforming use can be terminated by intentional abandonment or discontinuance of
the use:
1. If any nonconforming use is discontinued for a period of two years, it shall lose its nonconforming status, and any further use shall conform to the provisions of this chapter.
2. For the purposes of this section, cessation of a nonconforming use for the aforesaid period shall be conclusively presumed to establish discontinuance.
3. Any nonconforming use which is intentionally abandoned, without regard to the length of time which shall have passed, shall be terminated, and any further use shall conform to this chapter.
County Code § 32-601.21 (emphasis added). 2
The circuit court ruled that the nonconforming use of Parcel 20A was not abandoned.
That ruling has not been appealed. It is the law of this case. Lee v. Spoden, 290 Va. 235, 253,
776 S.E.2d 798, 808 (2015) (noting that “holdings uncontested on appeal become the law of the
case”) (citation and internal quotation marks omitted).
The assignments of error in this case concern whether the circuit court erred in ruling that
the nonconforming use was not discontinued. Thus, we must discern whether the
nonconforming use of Parcel 20A as an automobile graveyard was ever discontinued to an extent
that the property’s lawful nonconforming use status as an automobile graveyard was terminated.
For Parcel 20A to lose its nonconforming use status, its lawful nonconforming use as an
automobile graveyard had to be discontinued for a period of two years. See County Code § 32-
601.21(1) and (2). The County Code defines “use” to “mean any activity, fixture or structure to
which land [] is devoted . . . .” County Code § 32-100. “Discontinue” is not defined in the
2 The County did not assert an intentional abandonment theory on appeal. Our analysis is therefore limited to whether the nonconforming use of Parcel 20A as an automobile graveyard was discontinued for a period of two years. 11 ordinance, therefore we will give the word its usual meaning. Discontinue means “to break off:
give up: terminate: end the operations or existence of: cease to use.” Webster’s Third New
International Dictionary 646 (2002). Parcel 20A’s nonconforming use status was that of an
automobile graveyard. “The nonconforming status of any nonconforming use, lot or structure
shall adhere solely to the use of the land, and not to the owner, tenant, or other holder of any
legal title to the property or the right to make use thereof.” County Code § 32-601.11.
There is no intent element in the relevant nonconforming use termination ordinance. See
id.; County Code § 32-601.21(1) and (2). The intent to discontinue a particular use is not
relevant to the analysis. The nonconforming use must be discontinued in actuality. Also, under
the plain language of the zoning ordinance, the nonconforming status, as an automobile
graveyard, adheres solely to the use of the land. County Code § 32-601.11. Who owns or has
legal use of the property is not relevant to the analysis of what the use status of the property is or
was at a particular point in time. Such use status is defined by ordinance.
An “automobile graveyard” is defined as “any lot, place, or parcel, except lawful motor
vehicle repair or service facility, upon which five or more inoperative motor vehicles of any kind
are found.” County Code § 32-100. 3 Thus, a parcel is “used” as an “automobile graveyard,” and
has the use status as an automobile graveyard, if it has five or more inoperative motor vehicles
upon or occupying the parcel.
The County claims that the circuit court erred in ruling that the nonconforming use was
not discontinued because LMG bought the property in 1987 and it never placed junk vehicles or
3 Similarly, a “junk yard” is “any land or structure used for the storage, keeping, collection, salvage, sale, disassembling, wrecking, baling, maintenance, or abandonment of junk or other discarded material,” which “may include ‘motor vehicle graveyard.’” County Code § 32-100. 12 parts on Parcel 20A throughout its ownership period. However, whether LMG placed any junk
cars on its property during its ownership is not dispositive of the use status of Parcel 20A as an
automobile graveyard under the terms of the County’s zoning ordinances.
Likewise, the County claims that the circuit court erred in finding that Archie’s property
has a lawful nonconforming use because Archie did not own the property between 1987 and
1992. It also asserts that the circuit court erred in that regard for the additional reasons that
Archie did not have permission from the owner or other legal right to operate an automobile
graveyard on the property between 1987 and 1992. However, none of those facts are dispositive
of the issue of whether Parcel 20A’s use status as an automobile graveyard was discontinued
during that time period.
Given the definitions of the terms used in the County’s ordinance, discontinuing the use
of a parcel as an automobile graveyard requires that there be less than five inoperative motor
vehicles on that parcel. The lawful nonconforming use status of the property as an automobile
graveyard would be discontinued and terminate as per the County ordinance, only if fewer than
five inoperative motor vehicles were upon or occupying the property for at least two years.
The use of Parcel 20A as an automobile graveyard was established before the County
Code was enacted, and continued as a lawful nonconforming use after the County enacted its
zoning ordinances. The circuit court found that the “actual use on Parcel 20A as an automobile
salvage business operation has not stopped since prior to the enactment of the Prince William
County Zoning Ordinances.” There was testimony from numerous witnesses that the parcel had
never been cleared of inoperable vehicles, and Archie testified that over 100 inoperable vehicles
remained on the property throughout the time it was owned by LMG. Although the County
contends that Archie continued this use without permission from, and contrary to the desires of,
13 LMG, it does not identify any evidence to rebut the presumption that the circuit court’s factual
finding regarding the actual use of the property is correct.
That LMG bought the property, and apparently wanted the junk vehicles to be removed,
did not change the status of the property as an automobile graveyard under the County zoning
ordinances. LMG never brought to fruition its apparent intent to discontinue the use of the
property as an automobile graveyard by removing the inoperable vehicles, and thus that use
status never changed. There is ample evidence to support the factual findings of the circuit court
concerning the actual use of the parcel, and its conclusion that the use of the parcel as an
automobile graveyard was not discontinued.
CONCLUSION
For the foregoing reasons, we cannot conclude that the circuit court erred by reversing
the decision of the BZA and determining that the use of Parcel 20A as an automobile graveyard
is a lawful nonconforming use which has not been discontinued. Accordingly, we affirm the
judgment of the circuit court.
Affirmed.