Clarence Gibson, etc. v. Commissioner of DMV

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
CLARENCE GIBSON, t/a D & V AUTO SALES
v. Record No. 0915-95-3 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMISSIONER OF THE DEPARTMENT MAY 21, 1996
OF MOTOR VEHICLES
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Joshua L. Robinson, Judge Designate
C. Waverly Parker for appellant.
Eric K. G. Fiske, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In denying the application of Clarence R. Gibson, t/a D & V
Auto Sales, for licensing as a "SALVAGE DEALER" pursuant to Code
§ 46.2-1601, the Commissioner of the Department of Motor Vehicles
(commissioner) determined that Gibson had failed to establish
"compliance with all applicable [zoning] ordinances . . . ."
Gibson petitioned for judicial review, and the trial court
affirmed the commissioner. On appeal to this Court, Gibson
contends that the commissioner erroneously required compliance
with an inapplicable ordinance. We disagree and affirm the
order.
The parties are conversant with the record, and a recitation
of the facts and procedural history is unnecessary to this
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
memorandum opinion.
Judicial review of "agency action" is governed by Code
§ 9-6.14:17. Agency action is presumed valid, and the burden
rests upon the complaining party "to designate and demonstrate an
error of law subject to review by the court." Code § 9-6.14:17;
EDF v. State Water Control Bd., 15 Va. App. 271, 277, 422 S.E.2d
608, 611 (1992). "Such issues of law include . . . (iv) the
substantiality of the evidential support for findings of fact."
Code § 9-6.14:17; see Johnston-Willis v. Kenley, 6 Va. App. 231,
242, 369 S.E.2d 1, 7 (1988). A court may reject an "'agency's
findings of fact only if, considering the record as a whole, a
reasonable mind would necessarily come to a different
conclusion.'" EDF, 15 Va. App. at 277-78, 422 S.E.2d at 612
(citations omitted).
Here, the disputed administrative decision arose from
Gibson's application "to engage in business . . . as a [vehicle]
. . . salvage dealer" pursuant to Code § 46.2-1601, which
provides, in pertinent part, that "[n]o license shall be issued
or renewed for any person unless the licensed business . . . is
shown to be in compliance with all applicable zoning ordinances."
(Emphasis added). The zoning administrator of Rockingham County,
situs of the requested license, testified that the proposed
activity did not comply with the local zoning ordinance. Gibson
countered that his salvage business and attendant uses predated
the 1969 ordinance, and its provisions were, therefore,
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inapplicable pursuant to Code § 15.1-492. 1
Code § 15.1-492 assures the right to continue the "lawful
use" of any land, buildings, and structures "'existing on the
effective date of the zoning restriction and continuing since
that time in non-conformance to the ordinance.'" Knowlton v.
Browning-Ferris, 220 Va. 571, 572 n.1, 260 S.E.2d 232, 234 n.1
(1979) (citation omitted). However, a "use accessory or
incidental to a permitted use 'cannot be made the basis for a
nonconforming principal use.'" Id. at 575-76, 260 S.E.2d at 236
(citation omitted). In a civil proceeding, 2 the "land user has
both the burden of initially producing evidence tending to prove
a lawful nonconforming use and the burden of persuading the
factfinder." Id. at 574, 260 S.E.2d at 235. Thus, "the risk of
non-persuasion . . . rests with the land user claiming the right
to continue a nonconforming use." Id. at 575, 260 S.E.2d at 236.
Following a lengthy informal hearing pursuant to Code
§ 9-6.14:11, the commissioner, in denying the license, determined
that the activities subject of Gibson's application were governed
by the local ordinance and did not comply with its provisions.
Although the commissioner concluded that Gibson qualified for a
"Rebuilder license," see Code § 46.2-1600, a business permitted
1
It is uncontroverted that the business did not comply with
the local ordinance.
2
A different burden of proof pertains in a criminal
prosecution for a zoning violation. Knowlton, 220 Va. at 574,
260 S.E.2d at 235.
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by the local zoning ordinance, and had engaged in related
activities on the subject property prior to 1969, such evidence
was deemed insufficient to establish that Gibson had likewise
operated as a salvage dealer, acquiring vehicles for the
"purpose" of selling "parts," previous to enactment of the
ordinance. The commissioner noted that prior licensing of Gibson
by the DMV as a "Rebuilder" included the authority to acquire
"salvage vehicles" and the "sale of parts." However, the
attendant salvage activity was only incidental to Gibson's
rebuilder license and differed from the primary function of a
"salvage dealer." See Code § 46.2-1600.
These findings and conclusions are supported by the record
and consistent with statute. The trial court, therefore,
correctly concluded that the commissioner's ruling was "not
arbitrary or capricious" and consistent with "substantial
evidence in the agency record." Accordingly, we affirm the
decision.
Affirmed.
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