Lamar Co. v. City of Richmond ( 2014 )

PRESENT: All the Justices
THE LAMAR COMPANY, LLC
OPINION BY
v. Record No. 130801 JUSTICE DONALD W. LEMONS
APRIL 17, 2014
CITY OF RICHMOND, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, we consider whether the Circuit Court of
the City of Richmond ("circuit court") erred in its decision to
affirm the Board of Zoning Appeals’ denial of the Lamar
Company's request for a variance.
I. Facts and Proceedings
The Lamar Company, LLC ("Lamar") leases property on Mayo
Island at 501 South 14th Street in the City of Richmond from
Alan T. Shaia and Wayne T. Shaia ("the Shaias") pursuant to a
lease agreement. A billboard is located on this property that
is visible from Interstate 95. The billboard has been declared
illegal in prior litigation because it exceeds the permitted
height limitation. In June 2011, Lamar and the Shaias filed a
joint application for a variance with the Board of Zoning
Appeals of the City of Richmond ("BZA") to allow the billboard
to remain at its existing height. There is no dispute that if
the billboard is lowered to the permitted height it will not be
visible from Interstate 95.
The BZA held a hearing on August 3, 2011, to consider Lamar
and the Shaias' application for a variance. At the conclusion
of the hearing, the BZA denied the requested variance. Lamar
and the Shaias then filed appeals to the circuit court, which
consolidated their appeals.
After conducting a hearing on the matter, the circuit court
issued a letter opinion on January 17, 2013, in which it upheld
the BZA's decision to deny the request for a variance. The
circuit court issued a final order on February 19, 2013,
incorporating its January 17, 2013 letter opinion.
Lamar appealed the circuit court's judgment to this Court,
and we awarded an appeal. The Shaias chose not to pursue an
appeal in this Court, and the City of Richmond (the "City")
filed a motion to dismiss Lamar's appeal for lack of a necessary
party.
II. Motion to Dismiss
In its motion to dismiss, the City asserts that the Shaias
are necessary parties to this appeal because they are the
landowners. The City relies on Code § 15.2-2314, which states
that "[t]he governing body, the landowner, and the applicant"
are necessary parties to appeals from the BZA to the circuit
court. This statute does not apply, however, to appeals from
the circuit court to this Court.
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We considered the necessary party doctrine in Siska v.
Milestone Development, LLC, 282 Va. 169, 715 S.E.2d 21 (2011),
and held that the necessary party doctrine does not implicate
subject matter jurisdiction. We explained that a court might
choose not to exercise its subject matter jurisdiction if a
necessary party was missing from a case, and that a necessary
party is one whose presence is required for a court to render
complete relief in a case. Id. at 177, 181, 715 S.E.2d at 25,
27.
In this case, the Shaias were a party to the proceedings in
the BZA and the circuit court. For unknown reasons, the Shaias
chose not to pursue an appeal in this Court, and Lamar did not
join them as parties in its case. There is no statutory
requirement that the Shaias be made a party to this appeal, and
it is clear that Lamar can represent the Shaias' interests in
this appeal. Code § 15.2-2310 permits tenants to apply for
variances, and a proper decree can be entered in this appeal
without the Shaias' presence. The motion to dismiss will be
denied.
III. Analysis
A. Standard of Review
Whether the circuit court applied the proper standard of
review is a question of law. We review pure questions of law de
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novo. See PKO Ventures, LLC v. Norfolk Redev't & Hous. Auth.,
286 Va. 174, 182, 747 S.E.2d 826, 830 (2013).
B. Standard of Review in the Trial Court
In its third assignment of error, Lamar asserted that the
circuit court erred by applying the "fairly debatable" standard
of review. In its letter opinion, incorporated into the final
order, the circuit court stated that
[t]o approve a denial of variance on appeal,
as here, the court need only find that the
evidence presented to the Board was
sufficient to make the question "fairly
debatable." [Board of Supervisors] v.
Southland Corp[.], 224 Va. 514, 522-23[, 297
S.E.2d 718, 722] (1982). However, "[t]he
court may not disturb the decision of a
board of zoning appeals unless the board has
applied erroneous principles of law or,
where the board's discretion is involved,
unless the evidence proves to the
satisfaction of the court that the decision
is plainly wrong and in violation of the
purpose and intent of the zoning ordinance."
Board of Zoning Appeals of Alexandria v.
Fowler, 201 Va. 942, 948[, 114 S.E.2d 753,
758] (1960). No such finding can be made
under the circumstances here.
The circuit court's letter opinion further stated that "the
BZA determination comes to the court presumed to be correct,
upon judicial review, Cherrystone Inlet v. BZA Northampton
County, 271 Va. 670, 628 S.E.2d 334 (2006), and for the
foregoing reasons, as the Board's decision can be said to be
'fairly debatable,' the outcome must be upheld."
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In Lamar's first assignment of error, it contends that the
standard of review the circuit court should have applied is the
standard set out in section 17.24 of the Richmond City Charter.
Section 17.24 states that the circuit court may reverse or
modify a decision of the BZA if "the decision of the board is
contrary to law or that its decision is arbitrary and
constitutes an abuse of discretion."
Code § 15.2-2314 also sets out the standard of review that
governs decisions by boards of zoning appeals. Code § 15.2-2314
states, in relevant part, that:
[T]he decision of the board of zoning
appeals shall be presumed to be correct.
The petitioner may rebut that presumption by
showing to the satisfaction of the court
that the board of zoning appeals applied
erroneous principles of law, or where the
discretion of the board of zoning appeals is
involved, the decision of the board of
zoning appeals was plainly wrong and in
violation of the purpose and intent of the
zoning ordinance.
In Martin v City of Alexandria, 286 Va. 61, 69, 743 S.E.2d
139, 142 (2013), we applied the standard of review contained in
the Alexandria City Charter, and found that the standard of
review in the Alexandria City Charter was in effect the same
standard of review contained in Code § 15.2-2314. The standard
of review in the Alexandria City Charter is identical to the
standard of review contained in section 17.24 of the Richmond
City Charter. Accordingly, we find no significant difference
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between the standard of review contained in the Richmond City
Charter and that set forth in Code § 15.2-2314.
Lamar is correct that the circuit court applied an
incorrect standard of review. The "fairly debatable" standard
is the standard of review that a court applies when a governing
body acts in a legislative capacity, such as when it adopts a
zoning ordinance or grants a special use permit. See Board of
Supervisors v. Southland Corp., 224 Va. 514, 522-23, 297 S.E.2d
718, 722 (1982). It is not the proper standard of review to
apply when considering a board of zoning appeals' decision to
deny a request for a variance. The proper standard of review to
apply is the standard articulated in Code § 15.2-2314 and
Richmond City Charter § 17.24.
IV. Conclusion
Accordingly, we hold that the circuit court erred by
applying an improper standard of review. We remand the case to
the circuit court for further proceedings wherein the trial
court is directed to apply the standard of review as articulated
in Code § 15.2-2314 and Richmond City Charter § 17.24. Based
upon our resolution of the third assignment of error, we need
not address the remaining assignments of error.
Reversed and remanded.
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CHIEF JUSTICE KINSER, concurring.
I fully agree with the analysis and conclusion of the
majority. I write separately, however, to address the dissent's
belief that the circuit court's application of the wrong
standard of review was harmless error.
According to the dissent, the circuit court's application
of the incorrect standard of review was harmless error because
in its letter opinion, the circuit court also cited the proper
standard of review contained in Code § 15.2-2314. Therefore,
the dissent reasons, the circuit court's "additional application
of the incorrect 'fairly debatable' standard did not impact its
ultimate resolution of the case."
When a jury is given a correct instruction and a
conflicting, incorrect instruction on the same point of law, we
have held that the verdict must be set aside "because it is
impossible to determine which instruction was the basis for the
jury's decision." Riverside Hosp., Inc. v. Johnson, 272 Va.
518, 536, 636 S.E.2d 416, 426 (2006). The same analysis applies
here. Contrary to the dissent's conclusion, it is not possible
to determine which standard of review was the basis for the
circuit court's decision and what impact the "fairly debatable"
standard had on the court's analysis. In the passage quoted by
both the majority and the dissent, the circuit court cited both
the fairly debatable standard and the correct standard under
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Code § 15.2-2314. But as the majority notes, the circuit court
then concluded its analysis by stating that the decision of the
Board of Zoning Appeals "can be said to be 'fairly debatable.'"
It is not at all clear, therefore, that the circuit court
reached its decision by applying the proper standard of review.
Stated differently, "it is impossible to determine which
[standard of review] was the basis for the [court's] decision,"
and it cannot be said that "it is clear that the [court] was not
misled" by its application of the wrong standard. Riverside,
272 Va. at 536-37, 636 S.E.2d at 426. Accordingly, the circuit
court's judgment must be reversed and this case remanded so the
court can apply the proper standard of review.
For these reasons, I respectfully concur.
JUSTICE McCLANAHAN, with whom JUSTICE GOODWYN joins, dissenting.
I dissent because I believe that the trial court’s
application of the “fairly debatable” standard of review was
harmless error.
We have held that “‘[u]nder the doctrine of harmless error,
we will affirm the circuit court's judgment when we can conclude
that the error at issue could not have affected the court's
result.’” Northam v. Virginia State Bar, 285 Va. 429, 445, 737
S.E.2d 905, 913-14 (2013) (quoting Forbes v. Rapp, 269 Va. 374,
382, 611 S.E.2d 592, 597 (2005)). Furthermore, “in order to
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constitute reversible error the ruling of the trial court must
be material and prejudicial to the interests of the party
complaining of it.” Taylor v. Turner, 205 Va. 828, 831, 140
S.E.2d 641, 643 (1965).
In the portion of its letter opinion expressly incorporated
into the final order of February 19, 2013, the circuit court
described the applicable standard of review as follows:
To approve a denial of variance on appeal, as here,
the court need only find that the evidence presented
to the Board was sufficient to make the question
“fairly debatable.” Fairfax County v. Southland
Corporation, 224 Va. 514, 522-23 (1982). However,
“[t]he court may not disturb the decision of a board
of zoning appeals unless the board has applied
erroneous principles of law or, where the board’s
discretion is involved, unless the evidence proves to
the satisfaction of the court that the decision is
plainly wrong and in violation of the purpose and
intent of the zoning ordinance.” Board of Zoning
Appeals of Alexandria v. Fowler, 201 Va. 942, 948
(1960). No such finding can be made under the
circumstances.
(emphasis added).
The proper standard of review in this case is contained in
Code § 15.2-2314, which establishes that a petitioner may rebut
the presumption that a BZA decision is correct by showing that
“the board of zoning appeals applied erroneous principles of
law, or where the discretion of the board of zoning appeals is
involved, [that] the decision of the board of zoning appeals was
plainly wrong and in violation of the purpose and intent of the
zoning ordinance.” Code § 15.2-2314. This is the same standard
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of review applied by this Court in Fowler, which was cited by
the circuit court here.
Although the circuit court erred by citing the incorrect
“fairly debatable” standard, it also stated that “no such
finding [could] be made” that the board committed an error of
law or that its decision was “plainly wrong and in violation of
the purpose and intent of the zoning ordinance.” (Quoting
Fowler, 201 Va. at 948); Code § 15.2-2314. Because the circuit
court explicitly held that it could not reverse the BZA’s
decision under the correct standard of review, its additional
application of the incorrect “fairly debatable” standard did not
impact its ultimate resolution of the case. * Therefore, Lamar was
not prejudiced by the ruling below, and I would affirm the
circuit court’s decision.
*
The issue presented by this case is not, as the concurrence
suggests, analogous to a situation where a jury is presented
with both a correct and an incorrect instruction on the same
point of law. In that situation it is “impossible to determine
which instruction was the basis for the jury’s decision,”
Riverside Hospital, Inc. v. Johnson, 272 Va. 518, 536, 636
S.E.2d 416, 426 (2006), because a jury does not explain its
reasoning and appellate courts have no access to jury
deliberations. In contrast, the circuit court here has
explained its reasoning in a written opinion, which plainly
stated that it could not reverse the BZA’s decision under either
the incorrect or the correct standard of review.
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