Posted by: Patricia Salkin | August 31, 2017

VA Supreme Court Holds Owners Had a Vested Right to the Use of Their Property in Violation of a Zoning Ordinance

The Rhoadses filed an application for a Zoning Certificate of Compliance to build a two–story unfinished detached garage on its property, and attached architectural drawings of the proposed Garage. The Richmond County zoning administrator, Morgan Quicke, approved this application on November 18, 2013. The Rhoadses completed the Garage in June 2014 at a cost of approximately $27,000. In July 2014, Joseph Quesenberry, the new County zoning administrator, told the Rhoadses that the previously approved Garage was in violation of Richmond County Zoning Ordinance Section 2–3–6, because it was taller than the primary structure on the Property. The Rhoadses appealed the Notice to the County Board of Zoning Appeals, which denied the Rhoadses’ appeal, and affirmed Quesenberry’s decision. The circuit court reversed the BZA decision, and entered judgment in favor of the Rhoadses in the Rhoadses’ appeal.
On appeal, the Board argued that Code § 15.2–2311(C) did not apply, because Quicke lacked the authority to approve a plain violation of the Zoning Ordinance, and the Certificate he issued was void ab initio. The record reflected that more than 60 days elapsed between the zoning administrator’s initial approval of the zoning and his successor’s assertion of a zoning violation. Here, Quesenberry did not advise the Rhoadses that the Garage violated the Ordinance until more than 240 days after Quicke signed the Certificate approving the Garage. Furthermore, it was undisputed that the Rhoadses materially changed their position in good faith reliance on the zoning administrator’s approval of the zoning for their building plans, in their construction of the Garage at a cost of nearly $27,000.

For the aforementioned reasons, the court found the circuit court did not err in rejecting the Board’s claim that the Certificate was void ab initio because the Certificate granted a right to use property in a manner that otherwise would not have been allowed under the Zoning Ordinance. Moreover, the approval of the Certificate was an action within the scope of the authority delegated by the Board to the zoning administrator. Thus, the issuance of the Certificate constituted a determination within the meaning of Code § 15.2–2311(C). Accordingly, the court held that the circuit court did not err in applying Code § 15.2–2311(C) to uphold the Rhoadses’ vested rights to use their property in the manner originally approved by the zoning administrator.

Board of Supervisors of Richmond County v Rhoads, 2017 WL 3765193 (VA 8/31/2017)

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