Lilly v. Caroline County , 259 Va. 291 ( 2000 )

Present: Carrico, C.J., Compton, ∗ Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.
ALBERT J. LILLY, JR.,
ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 990746 March 3, 2000
CAROLINE COUNTY, ET AL.
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Richard J. Jamborsky, Judge Designate
In this appeal in a land use controversy, the issue is
whether the trial court correctly ruled that landowners,
aggrieved by a zoning administrator's oral decision, failed to
exhaust administrative remedies by not filing a timely appeal to
the board of zoning appeals, as required by statute.
The controversy involves the effort to construct a
broadcast studio and office building, a 500-foot tower, and
transmitting facilities for an FM radio station on a two-acre
parcel in rural Caroline County. In April 1998, the County's
board of supervisors granted a special exception and a zoning
ordinance amendment at the request of those seeking to establish
the business.
In June 1998, appellants Albert J. Lilly, Jr., and
Judith G. Lilly, owners of realty "in the vicinity" of the
subject property and opponents of the project, filed the present
∗
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
"Motion for Declaratory Judgment." Appellees Caroline County;
Michael A. Finchum, as Director of Planning and Community
Development and as the County's Zoning Administrator; and others
(who have not appeared on appeal) were named defendants.
According to the motion, it "contests . . . the 'decision'"
of the zoning administrator "in determining that the
construction of a radio tower was a use permitted by right" in
the County's zoning ordinances. The motion sought various
relief, including a ruling that the zoning administrator's
determination "is without basis in the zoning ordinance, is
contrary to the terms of the zoning ordinance and is null and
void."
The County and Finchum (hereinafter, the defendants) filed
a special plea in bar seeking dismissal of the motion and
asserting that the plaintiffs' attempt to contest the decision
of the zoning administrator "is time barred."
In an October 1998 bench trial, the court considered
various documents, including copies of minutes of planning
commission and board of supervisors meetings. The only witness
testifying was Finchum, who was called by the defendants.
Following the trial, the court sustained the plea and dismissed
the action in a January 1999 final order, from which we awarded
the landowners this appeal.
February 2, 2000.
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There are very few disputed facts. When there is dispute,
however, we will apply settled principles of appellate review
and summarize the facts in the light most favorable to the
defendants, the prevailing parties below.
In 1996, one Walter Abernathy came to Finchum's office
explaining that he "had been working on trying to get an
application and a permit for a radio station in Caroline County
for several years and inquired as to the permitting procedure
that would be necessary to get a facility at the location in
question." Finchum told Abernathy that he "thought the tower
and the transmitting facilities were permitted by right under
the county's public utilities definition of the zoning
ordinance, however a broadcast studio and any other structures
would require a text amendment to the zoning ordinance."
Subsequently, after site plans had been filed for the tower
and for the broadcast studio, Finchum prepared a text amendment
to the ordinance that would permit by special exception in a
rural preservation district the additional use of a radio/TV
studio and office.
At a meeting held on December 17, 1997, the County's
planning commission held a public hearing on the proposed
amendment and on Abernathy's application for a special exception
permit that would allow creation of the radio station, office,
and broadcasting studio. During the public hearing, the
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question whether construction of the radio tower was a "by-
right" use, permitted under the zoning ordinance without any
special exception permit, was posed by a commission member to
Finchum. He responded "that it is conceivable that the tower
can be placed anywhere without a special exception permit. He
stated that he would research that prior to the next Planning
Commission meeting," according to the minutes of the meeting.
Both plaintiffs were present at the December meeting, and
Mr. Lilly, an attorney at law, spoke against construction of the
tower. The commission voted to defer action on the two items
until its January 1998 meeting.
During the commission meeting held January 28, 1998, the
issue about the radio tower again arose in the context of the
proposed ordinance amendment and application for a special
exception permit. In response to a question from the chairman,
Finchum stated that the tower "is a permitted use by right
within the RP District," according to the minutes of the
meeting.
Both plaintiffs were present at the January meeting. The
commission then voted to forward both items to the County's
board of supervisors.
During its meeting on February 24, 1998, the board of
supervisors held a public hearing on the two items related to
the proposed radio station. The question whether construction
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of the radio tower was permitted under the zoning ordinance
arose again. Responding to a supervisor's question, Finchum
"stated that he would investigate whether or not the tower and
transmitting facility falls under the ordinance." The County
Attorney then said that such a determination would be made by
the zoning administrator, whose interpretation could be appealed
to the County's board of zoning appeals.
Both plaintiffs were present at the February meeting and
both spoke against the proposed radio station and tower. The
board deferred action on the proposed zoning ordinance amendment
and special exception application until its next meeting in
March.
At the board meeting on March 10, 1998, action on the
subject items was deferred to allow an absent supervisor to be
present and to vote on the matters.
The board's next meeting was held on April 14, 1998.
During the meeting, Finchum reminded the board that, during its
February public hearing, it had "expressed concerns" about the
"by-right use" issue.
According to the minutes of the meeting, the zoning
administrator stated "that he had determined that the radio
tower was a by-right use in the Rural Preservation zoning
district." The minutes further reflect that Finchum "explained
that the radio tower, but not the office and broadcasting
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facilities, could be built on the present site with or without
approval of the special exception request. He added that his
ruling could be appealed to the Board of Zoning Appeals."
Both plaintiffs were present at the April meeting. As we
previously have noted, the board approved the zoning ordinance
amendment and application for the special exception permit at
that meeting. No one, including the plaintiffs, appealed the
zoning administrator's April determination with respect to the
radio tower being a "by-right" use.
The applicable law is clear. "In the land use context, a
landowner may be precluded from making a direct judicial attack
on a zoning decision if the landowner has failed to exhaust
'adequate and available administrative remedies' before
proceeding with a court challenge." Vulcan Materials Co. v.
Board of Supervisors, 248 Va. 18, 23, 445 S.E.2d 97, 100 (1994)
(quoting Rinker v. City of Fairfax, 238 Va. 24, 29, 381 S.E.2d
215, 217 (1989)). A zoning administrator has "all necessary
authority on behalf of the governing body to administer . . .
the zoning ordinance." Code § 15.2-2286(A)(4). And, a person
aggrieved by any decision of the zoning administrator has the
right to appeal to the board of zoning appeals. Code § 15.2-
2311. If this mandatory appeal is not timely filed, the
administrative remedy has not been exhausted and the zoning
administrator's decision becomes a "thing decided" not subject
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to court challenge. Dick Kelly Enter. v. City of Norfolk, 243
Va. 373, 378, 416 S.E.2d 680, 683 (1992).
The focus of this dispute is upon Code § 15.2-2311(A). As
pertinent, that statute provides that an appeal to the board of
zoning appeals "may be taken by any person aggrieved . . . by
any decision of the zoning administrator." There is no
requirement in the statute that the administrator's decision be
in writing. The statute further provides that "[t]he appeal
shall be taken within thirty days after the decision appealed
from by filing with the zoning administrator, and with the
board, a notice of appeal specifying the grounds thereof."
The landowners contend the trial court erred in sustaining
the special plea and in dismissing the motion for declaratory
judgment. They argue: That "Finchum's decision was made prior
to the commencement of the first public hearing of December
1997"; that the "comments made by Finchum at public meetings did
not constitute notice of the decision"; that they were "not
required to appeal a decision to the board of zoning appeals
when such decision was made without their knowledge and without
notice to them"; and that they were "not required to appeal a
'decision' to the board of zoning appeals which was voiced as to
a matter not then pending before Finchum or [the] County."
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We do not agree with any of these contentions. They are
contrary to the evidence in the record and the trial court's
findings of fact.
The trial court, in sustaining the special plea, found that
a decision was made on April 14, 1998; that the decision "was
communicated to" the landowners, who "had actual notice of that
decision"; and that the landowners "did not comply with the
code." These findings are based upon credible evidence.
The landowners' assertion that Finchum's decision was made
prior to the December meeting has no support in the record.
They argue that Finchum's testimony shows that "his decision
that the tower was a use permitted by right was possibly made
prior to November 1997, he had so stated to Abernathy in 1996;
the tower site plan was approved November 10, 1997; and the
building and zoning permits for the tower, issued by him or
someone at his direction, could have been filed before December
1997."
However, the evidence is clear that the "decision" was made
at the April meeting, when Finchum stated "that the radio tower
was a by-right use in the Rural Preservation zoning district."
A zoning administrator must make clear the basis of the
decision, see Gwinn v. Alward, 235 Va. 616, 622, 369 S.E.2d 410,
413 (1988), and the foregoing statement complies with that
requirement. The intended finality of that opinion was
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buttressed by Finchum's April statement that his ruling could be
appealed to the board of zoning appeals.
The landowners' assertion that the decision was made
without their knowledge and without notice to them completely
disregards the fact that they were present at the April board
meeting when Finchum announced his decision. Indeed, they were
present and participated in the December, January, and February
meetings when the radio tower issue was discussed. See Code
§ 15.2-2204(B) (party's active participation in proceeding
waives right of party to challenge validity of proceeding due to
failure to receive written notice required by statute). At
those meetings, arguably there was no finality to Finchum's
opinion because, unlike the April meeting, decision on the issue
was deferred until each succeeding meeting.
The landowners' final assertion that the decision was
rendered in "a matter not then pending before" the zoning
administrator or the County is also unsupported by the record.
At each meeting, the radio-tower issue arose within the
framework and within the context of the proposed zoning
amendment and application for the special exemption.
This fact distinguishes the present case from Vulcan
Materials, upon which the landowners rely. There, we held that
because no application was pending before any county
administrative department for specific relief, the person was
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not "aggrieved" within the meaning of the statute. Thus, we
said, any oral comments by county officials merely were advisory
and no appeal to the board of zoning appeals was required. 248
Va. at 24, 445 S.E.2d at 100. Here, there were applications for
specific relief pending at the time Finchum announced his
decision.
Consequently, we hold that the trial court did not err in
sustaining defendants' special plea, and the judgment below
dismissing the declaratory judgment motion will be
Affirmed.
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