Posted by: Patricia Salkin | May 6, 2014

VA Supreme Court, After Finding Property Owner Was Not a Necessary Party, Held that Circuit Court Applied Wrong Standard in Variance Review

The Lamar Company, LLC (“Lamar”) leased property in the City of Richmond, Virginia (“City”) from Alan T. Shaia and Wayne T. Shaia (“the Shaias”). A billboard visible from I-95 was located on the property and it had been declared illegal in prior litigation because it exceeded permitted height limitations.

Lamar and the Shaias filed a joint application for a variance with the Board of Zoning Appeals (“BZA”) to allow the billboard to remain at its existing height. If it were lowered it would not be visible from Interstate 95. The BZA denied the request. Lamar and the Shaias then appealed to the circuit court, which consolidated their appeals. The circuit court upheld the BZA’s decision.

Lamar appealed to the Supreme Court. The Shaias chose not to pursue an appeal and the City filed a motion to dismiss Lamar’s appeal for lack of a necessary party. The City asserted that the Shaias were necessary parties to the appeal because they were the landowners. The City relied on Code § 15.2–2314, which stated that “the governing body, the landowner, and the applicant” were necessary parties to appeals from the BZA to the circuit court. The court stated that the statute did not apply, to appeals from the circuit court to the Supreme Court.

Here, the Shaias were a party to the proceedings in the BZA and the circuit court. There was no statutory requirement that the Shaias be made a party to the appeal, and it was clear that Lamar could represent the Shaias’ interests on the appeal. Lamar asserted that the circuit court erred by applying the “fairly debatable” standard of review that to approve a denial of variance on appeal, the court need only find that the evidence presented to the Board was sufficient to make the question “fairly debatable.” However, “ the court may not disturb the decision of a board of zoning appeals unless the board has applied erroneous principles of law or the evidence proves that the decision is plainly wrong and in violation of the purpose and intent of the zoning ordinance. Here, the court stated that no such finding could be made. Lamar contends that the standard of review the circuit court should have applied was the standard set out in § 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 stating that: “The 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.”

The court agreed with Lamar. The “fairly debatable” standard was not the proper standard to apply when considering a board of zoning appeals’ decision to deny a request for a variance. The proper standard of review to apply was the standard set forth in Code § 15.2–2314 and the Richmond City Charter § 17.24.
Therefore, the court held that the circuit court erred and remanded the case to the circuit court for further proceedings to apply the correct standard of review.

Lamar Co., LLC v City of Richmond, 757 SE2d 15 (VA 4/17/2014)

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