Board of Zoning Appeals of Norfolk v. Kahhal , 255 Va. 476 ( 1998 )

Present: All the Justices
BOARD OF ZONING APPEALS OF
THE CITY OF NORFOLK
v. Record No. 971655 OPINION BY JUSTICE ELIZABETH B. LACY
April 17, 1998
MEHRI KAHHAL, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
In this appeal, we consider whether the circuit court
erred in reversing the decision of a board of zoning appeals
because the board applied erroneous principles of law.
Mehri Kahhal and Mahmoudi Zarandi (collectively, the
owners) purchased property located at 4000 Parker Avenue in
the City of Norfolk, in 1990. The property was zoned for
commercial use. The owners leased the property to Frederick
Holloway, who held a business license from the City to operate
"D&H Grocery." In 1992, the City rezoned the property for
residential use. However, the zoning ordinance allowed
nonconforming uses to continue subject to § 12–9 of the
ordinance. That section provides:
If a nonconforming use is discontinued for a
period of two years, then that use shall not be
renewed or reestablished and any subsequent use of
the lot or structure shall conform to the use
regulations of the Zoning District in which it is
located.
In 1994, following a fire in the store, Holloway
abandoned his lease. He surrendered his business license on
June 16, 1994. The owners decided to operate the grocery
store themselves and secured a loan to finance the necessary
repairs to the property. On October 9, 1995, the City issued
the owners a business license to operate a grocery store on
the property. That same day, the owners also paid a meal tax
cash bond to the City in the amount of $300. A second
business license was later issued with an expiration date of
December 31, 1996.
On February 9, 1996, the owners obtained a building
permit from the City to repair the property, and the City
subsequently issued permits for electrical and plumbing work.
City inspectors approved the repair work on a number of
occasions from June through August of 1996. On August 21,
1996, the owners received a Notice of Zoning Violation from
the zoning inspector informing them that the property could
not be used as a grocery store because it had lost its
nonconforming use status.
The owners appealed to the Board of Zoning Appeals (the
Board). At the public hearing, the zoning administrator
testified that the property had lost its nonconforming use
status on June 16, 1996, pursuant to § 12-9 of the zoning
ordinance, because it had not been operated as a grocery store
for a period of two years. The administrator measured the
two-year period from the date the owners' lessee had
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surrendered his business license. The administrator also
testified that, at the time the building permit was issued,
the owners were told that the business had to be in operation
by June 16, 1996.
The owners presented evidence of the repair and
renovation work they had done on the property, as well as the
business licenses, building permits, and inspection approvals
they had received from the City. They denied they were told
that they had to be operating the business by June 16. A
number of neighborhood representatives testified both for and
against the owners. One resident of the neighborhood, Mr.
Isaiah Rogers, testified that the property had not been used
as a grocery store since "about '88, something like that."
The Board upheld the zoning administrator's decision.
The owners filed a petition for a writ of certiorari with the
circuit court arguing that the Board applied erroneous
principles of law in making its decision. The circuit court
did not take additional evidence, but relied on the record of
the hearing before the Board and argument of counsel.
The owners argued, as they had before the Board, that
continuation of the nonconforming use under § 12-9 is not
limited to the actual operation of the "use," but includes
preparatory actions such as securing financing to repair the
property, paying the meal tax bond, and getting business
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licenses as well as building permits. They asserted that,
even though § 12-9 is silent as to its scope, other sections
of the zoning ordinance support their interpretation of § 12-
9.
The owners pointed to § 12-8 of the ordinance, which
allows restoration or reconstruction of a nonconforming use in
the event of a fire as long as the owners diligently prosecute
the repairs to completion. This provision, they argued, not
only is applicable to their specific situation because of the
1994 fire, but it also shows that actual operation is not a
prerequisite for avoiding a determination that a nonconforming
use has been discontinued. Similarly, the owners suggested
that the definition of "used or occupied" as "intended,
designed or arranged to be used or occupied" in § 1-4.8 of the
ordinance is consistent with their interpretation of § 12-9.
This definition is relevant, the owners argued, because § 1-4
of the zoning ordinance, which includes § 1-4.8, states that
"[t]he regulations contained in this ordinance shall be
interpreted and applied in accordance with the general rules
set out in this section." Finally, the owners claimed that
the Black's Law Dictionary definition of "discontinuance" — an
ending, causing to cease, ceasing to use, giving up --
supports their position that a nonconforming use is not
abandoned or discontinued as long as affirmative actions are
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ongoing to recommence the operation. Black's Law Dictionary
464 (6th ed. 1990).
The circuit court agreed with the owners and concluded
that, under § 12-9, neither continuation nor abandonment of a
nonconforming use is contingent upon actual operation of the
use. Because the Board's decision was premised on the
principle that a nonconforming use is "discontinued" on the
date the use ceases to be in actual operation, the circuit
court concluded that the Board applied an erroneous legal
principle. Applying what it considered the correct principle,
the circuit court held that the activities of the owners at
the time the City issued the building permit did not
constitute "discontinuation" of the nonconforming use.
Therefore, the circuit court concluded that the property
retained its nonconforming use status because the use had not
been discontinued for a period of two years, and entered an
order reversing the decision of the Board.
In this appeal, the Board seeks reversal of the circuit
court's judgment and reinstatement of its decision, asserting
that the circuit court erred in ignoring the testimony of the
neighborhood resident who said there was no grocery store in
operation since "about '88;" in improperly relying on the
issuance of the building permit because the permit was
improvidently or erroneously granted; and by relying on § 1-
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4.8 of the zoning ordinance because that section was not
"argued before the Board" and is "irrelevant to the issues in
this case." Finally, the Board asserts that its decision
should be reinstated because the circuit court erred in
failing to accord the decision of the Board a presumption of
correctness. None of these challenges is well taken.
First, the Board's decision was based on the initial
presumption that the nonconforming use was operational until
just prior to June 16, 1994, the date the owners' lessee
surrendered his business license. By adopting this position,
the Board implicitly rejected the testimony that the grocery
store was not operational since sometime around 1988. The
circuit court was not required to afford such testimony more
weight than that given it by the Board.
Next, whether the building permit was improvidently or
illegally granted in February 1996 because the use was
discontinued at an earlier date, as now asserted by the Board,
is not determinative. The issue before the Board and the
circuit court was whether the owners' actions constituted
discontinuation of the nonconforming use under § 12-9 of the
zoning ordinance. That same issue would have arisen if the
City had denied the building permit on the basis that the
nonconforming use had been discontinued. The owners were
already engaged in activities directed to reopening the
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grocery store, such as obtaining financing, securing business
licenses, and paying the meal tax bond. Thus, had the
building permit been denied, the same legal question could
have been raised.
We also reject the Board's contention that the circuit
court erred in considering other sections of the zoning
ordinance, specifically the definition of "used or occupied"
in § 1-4.8. The circuit court did not apply this definition
to § 12-9. Rather it looked to this section and others in the
ordinance to determine the purpose and intent of the zoning
ordinance, specifically § 12-9. This reference to other
provisions in pari materia with the section at issue is an
accepted method of statutory construction and did not
constitute error by the circuit court. See Prillaman v.
Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957).
Finally, we reject the Board's assertion that the circuit
court erred by failing to extend the presumption of
correctness to the Board's decision. It is well established
that the decision of a board of zoning appeals is presumed to
be correct and will be reversed or modified only if the board
applied erroneous principles of law or was plainly wrong and
in violation of the purpose and intent of the zoning
ordinance. Foster v. Geller, 248 Va. 563, 566, 449 S.E.2d
802, 804-05 (1994). Furthermore, great weight must be given
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to the consistent construction of an ordinance by the official
charged with enforcing the ordinance. Cook v. Board of Zoning
Appeals of the City of Falls Church, 244 Va. 107, 111, 418
S.E.2d 879, 881 (1992).
In support of its position, the Board only points again
to those actions of the circuit court to which it assigned
error: ignoring the testimony of the neighborhood resident,
relying on the issuance of the building permit, and referring
to other sections of the zoning ordinance in interpreting
§ 12-9. We have already held that the circuit court did not
err in any of these particulars and we find nothing else in
the record to suggest that, in reaching its decision, the
circuit court ignored any of the principles which govern its
review of the Board's decision in this case. *
Accordingly, for the reasons stated, we will affirm the
decision of the circuit court.
Affirmed.
*
We are not called upon to consider whether the circuit
court's interpretation of § 12-9 is correct because the
validity of that interpretation was not the subject of an
assignment of error.
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