Frace v. Johnson (ORDER) ( 2015 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 26th day of
February, 2015.
Sheila E. Frace, Trustee of the
Sheila E. Frace Trust, Appellant,
against Record No. 140676
Circuit Court No. CL-2013-0017108
Leslie B. Johnson, Fairfax County
Zoning Administrator, Appellee.
Upon an appeal from a
judgment rendered by the Circuit
Court of Fairfax County.
Upon consideration of the record, briefs, and argument
of counsel, the Court is of opinion that the circuit court did not
err when it dismissed the certiorari proceeding because the
petitioner failed to timely name the Board of Supervisors of
Fairfax County ("Board of Supervisors") as a party. Therefore, the
Court will affirm the judgment of the circuit court.
On May 21 and May 23, 2013, a Fairfax County Code Compliance
Investigator responded to an anonymous complaint regarding the
property of Sheila E. Frace ("Frace") 1 and subsequently issued a
Notice of Violation. Frace requested and obtained a hearing before
the Board of Zoning Appeals of Fairfax County ("BZA") to contest
the Notice of Violation. On October 9, 2013, the BZA upheld the
1
The record owner of the property is the Sheila E. Frace
Trust.
violation determination of the Zoning Administrator of Fairfax
County ("Zoning Administrator").
On November 8, 2013, Frace filed a petition for writ of
certiorari in the Circuit Court of Fairfax County pursuant to Code
§ 15.2-2314, which permits a person "aggrieved by any decision of
the board of zoning appeals" to seek judicial review in the
appropriate circuit court within 30 days of the final decision of
the board of zoning appeals. Consistent with the first paragraph
of Code § 15.2-2314, Frace styled her petition as follows:
In RE: October 9, 2013 Decision of the Board of
Zoning Appeals of Fairfax County.
She did not name the Board of Supervisors or any other party. She
served a copy of the petition on the Chair of the BZA; she did not
serve any other entity or person.
Subsequently, the circuit court permitted the Zoning
Administrator to intervene. On January 10, 2014, the Zoning
Administrator filed a motion to dismiss, arguing that Code § 15.2-
2314 made the Board of Supervisors a necessary party to the
proceeding. Thus, Frace was required to name the Board of
Supervisors as a party within the 30-day period.
On January 24, 2014, the circuit court held a hearing on the
Zoning Administrator's motion to dismiss. After hearing argument
from counsel, the circuit court granted the motion, ruling that:
The code section is crystal clear that the
governing body is a necessary party to the
proceeding.
It is the basic rule of appellate
procedure that you have to serve all necessary
2
parties. . . . Failure to serve, and the
matter fails for that reason.
On appeal, Frace argues that the circuit court erred because
she styled the petition precisely as required by the first
paragraph of Code § 15.2-2314 and because the 30-day period is not
jurisdictionally fatal. For these reasons, she contends that the
circuit court should have allowed her to add the Board of
Supervisors as a party to the proceeding after the 30-day statutory
period, rather than dismissing the case.
A certiorari proceeding is "purely statutory in nature."
Board of Supervisors v. Board of Zoning Appeals, 225 Va. 235, 238,
302 S.E.2d 19, 20 (1983) ("Board of Supervisors I"). Therefore,
the provisions of Code § 15.2-2314 govern "the proper institution
of a proceeding thereunder." Id. The interpretation of a statute
presents a question of law that the Court reviews de novo.
Perreault v. The Free Lance-Star, 276 Va. 375, 384, 666 S.E.2d 352,
357 (2008).
In Board of Supervisors I, the Court interpreted the
predecessor statute to Code § 15.2-2314, former Code § 15.1-497,
and concluded that "until return on the writ of certiorari is made
by the board of zoning appeals, the only necessary parties . . .
are the aggrieved person and the board [of zoning appeals]." 225
Va. at 238, 302 S.E.2d at 21. Accordingly, the Court permitted the
petitioner to add necessary parties identified after the return was
made. Id. at 239, 302 S.E.2d at 21. However, unlike Frace, the
petitioner in Board of Supervisors I had made the necessary party
identified by former Code § 15.1-497 — the board of zoning appeals
— a party to the proceeding within the 30-day statutory period.
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Id. at 238, 302 S.E.2d at 21 ("No party other than the aggrieved
person and the board of zoning appeals is mentioned in connection
with the petition . . . ."). Thus, the petitioner had properly
instituted the proceedings under the statute.
In 2010, the General Assembly amended the first paragraph of
Code § 15.2-2314 to prescribe the proper styling of the petition.
2010 Acts ch. 241. The General Assembly also inserted a paragraph
(now the third unnumbered paragraph) explicitly providing that
"[a]ny review of a decision of the board [of zoning appeals] shall
not be considered an action against the board and the board shall
not be a party to the proceedings." Id. Instead, the General
Assembly provided that the "governing body," defined in Code
§ 15.2-102 as "the board of supervisors of a county," is a
necessary party to proceedings initiated pursuant to Code § 15.2-
2314. Id. As amended, Code § 15.2-2314 provides:
Any person . . . aggrieved by any decision of
the board of zoning appeals . . . may file with
the clerk of the circuit court for the county
or city a petition that shall be styled "In Re:
[date] Decision of the Board of Zoning Appeals
of [locality name]" specifying the grounds on
which aggrieved within 30 days after the final
decision of the board.
Upon the presentation of such petition,
the court shall allow a writ of certiorari to
review the decision of the board of zoning
appeals and shall prescribe therein the time
within which a return thereto must be made and
served upon the secretary of the board of
zoning appeals or, if no secretary exists, the
chair of the board of zoning appeals . . . .
4
Any review of a decision of the board
shall not be considered an action against the
board and the board shall not be a party to the
proceedings . . . . The governing body, the
landowner, and the applicant before the board
of zoning appeals shall be necessary parties to
the proceedings.
The several paragraphs of Code § 15.2-2314 must be "read and
considered as a whole . . . to determine the intent of the General
Assembly from the words contained in the statute." Department of
Med. Assistance v. Beverly Healthcare of Fredericksburg, 268 Va.
278, 285, 601 S.E.2d 604, 607-08 (2004). Moreover, if practicable,
each paragraph must be given "sensible and intelligent effect."
Id., 601 S.E.2d at 608. As amended, Code § 15.2-2314 clearly
signals that boards of zoning appeals are not necessary parties to
certiorari proceedings. In effect, the third unnumbered paragraph
substitutes the "governing body" for the board of zoning appeals as
the necessary governmental party. The substitution reflects a
governing body's interest in defending its zoning ordinances and
the status of a board of zoning appeals as a quasi-judicial entity,
the decisions of which are subject to review by a circuit court. 2
When read as a whole, the first three paragraphs provide for the
proper institution of the proceeding in the circuit court, while
the following paragraphs describe what must be contained in the
return, standards for conducting the proceeding, and standards for
rendering the decision.
2
Although Frace suggests that the term "governing body" is
ambiguous or contradictory, it is plainly defined in Code § 15.2-
102 as "the board of supervisors of a county." Further, Code
§ 15.2-102 plainly states that the definitions contained therein
5
Although the 2010 amendments changed the necessary parties to
a certiorari proceeding, the rationale behind the decision in Board
of Supervisors I remains valid. To properly institute proceedings
under Code § 15.2-2314, an aggrieved person must give timely notice
to the necessary parties identified by statute. See Board of
Supervisors I, 225 Va. at 238, 302 S.E.2d at 21. Nothing in Code
§ 15.2-2314 suggests otherwise. Rather, the General Assembly
expressly identified parties with an interest in the proceeding and
who must be given notice and an opportunity to protect such
interest.
Moreover, while the 30-day period "is not an aspect of the
circuit court's subject matter jurisdiction," timely compliance
with Code § 15.2-2314 is nonetheless required to trigger the
circuit court's "active jurisdiction." See Board of Supervisors v.
Board of Zoning Appeals, 271 Va. 336, 340, 343-44, 626 S.E.2d 374,
376, 378-79 (2006) ("Board of Supervisors II"). As stated in Board
of Supervisors II, the 30-day filing requirement is a "statutory
prerequisite" that could be considered "notice jurisdiction,
[requiring] effective notice to a party" before a circuit court may
exercise its subject matter jurisdiction. Id. at 345 & n.3, 626
S.E.2d at 379 & n.3 (internal quotation marks and citation
omitted).
Although the 30-day filing requirement may be waived, no
waiver occurred in the present case. See id. at 347-48, 626 S.E.2d
at 381. In fact, the Zoning Administrator timely filed a motion to
dismiss the present case, because Frace failed to name any
necessary adverse party within the 30-day period. Frace never
apply throughout Title 15.2.
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served the Board of Supervisors or otherwise attempted to make the
Board of Supervisors a party to the proceeding, even after the
Zoning Administrator filed the motion to dismiss.
Finally, compliance with the styling requirement in the first
paragraph is only one of the statutory prerequisites that an
aggrieved person must satisfy to obtain judicial review pursuant to
Code § 15.2-2314. To rule, as Frace argues, that an aggrieved
party can comply with the first paragraph, but fail to timely name
or serve the necessary parties identified in the third paragraph,
and still preserve his or her right to obtain judicial review,
renders the third paragraph superfluous. It would also be contrary
to our rulings in Board of Supervisors I and Board of Supervisors
II. An aggrieved party may comply with Code § 15.2-2314 by
formatting the style of the petition as provided in the first
paragraph and then naming the governing body as a necessary party
in the body of the petition. 3
For these reasons, we affirm the judgment of the Circuit Court
of Fairfax County. The appellant shall pay to the appellee two
hundred and fifty dollars damages.
This order shall be published in the Virginia Reports and
shall be certified to the said circuit court.
A Copy,
Teste:
Patricia L. Harrington, Clerk
3
While ordinarily the names of all parties will be found in
the caption, the statute dictates a different style in this case.
7