Goyonaga v. Board of Zoning Appeals

Present: All the Justices

MANUEL E. GOYONAGA, ET AL.
OPINION BY
v. Record No. 070229 JUSTICE LAWRENCE L. KOONTZ, JR.
February 29, 2008
BOARD OF ZONING APPEALS FOR
THE CITY OF FALLS CHURCH

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge

This appeal arises from a petition for certiorari

filed in the appropriate circuit court challenging a stop

work order issued by a zoning administrator and upheld on

appeal to the local board of zoning appeals. The stop work

order was issued to prohibit renovations of a residential

structure that qualified as a pre-existing nonconforming

use under the applicable zoning ordinance. The circuit

court found no error in the decision of the board of zoning

appeals, and also denied a request for a declaratory

judgment that the property owners had acquired a vested

right to continue the nonconforming use of the property.

The principal issue in this appeal is whether the initial

decision of a board of zoning appeals to grant a variance

allowing a nonconforming structure to be enlarged and

extended converts the structure into a conforming use for

subsequent applications of the zoning ordinance.
 BACKGROUND

Manuel E. Goyonaga and his wife, Lourdes Calatayud-

Levy, (collectively, “the Goyonagas”) own a residential

home in the City of Falls Church. The home is located in

an R-1B zone as defined by that city’s zoning ordinance.

The lot on which the home was constructed was created by a

1928 subdivision pre-dating the current zoning ordinance.

The lot now would be treated as a substandard lot because

it lacks sufficient width and its total area is less than

is permitted to qualify as a buildable lot in an R-1B zone. 1

Falls Church City Code § 38-17(e)(1). Moreover, the home

itself does not conform to the minimum side yard setback of

10 feet required by the ordinance for a structure in an R-

1B zone because the side yards are approximately 8 feet and

8.4 feet from the side lot lines. Falls Church City Code

§ 38-17(e)(3). Thus, it is not disputed that both the lot

and the home became pre-existing nonconforming uses when

the current ordinance went into effect. Falls Church City

Code § 38-6(b).

1
Under Falls Church City Code § 38-28(b)(2), a pre-
existing substandard lot in an R-1B zone may be used for
construction of a single-family residential home provided
that certain criteria are met. Although reference to this
provision of the city code was made during oral argument of
this appeal, the Goyonagas do not assert its application as
a basis for challenging the stop work order.
2
 As pre-existing nonconforming uses, the lot and home

were subject to certain restrictions on changes to the use

of the lot or alteration of the structure under the zoning

ordinance. Relevant to the issues raised in this appeal,

the Falls Church City Code provides that a “structural

addition” to a nonconforming structure is permissible in

certain cases provided that “[n]o portion of the addition

would be closer to a front or side lot line than the

existing structure.” Falls Church City Code § 38-6(c)(3).

The zoning administrator is authorized under this

subsection of the ordinance to approve an application for

such an addition or to “deny such application and refer the

application to the board of zoning appeals for

consideration of a variance.” Id.

The ordinance further provides that

[i]f any building in or on which a nonconforming
use is maintained is . . . removed or demolished
. . . or damaged by . . . any means whatever to
an extent equal to seventy-five (75) percent of
its assessed value for the year . . . the right
of such nonconforming use to continue shall cease
at the time of such . . . removal . . . and no
further use shall be made of the property except
as permitted in the district in which it is
located.

Falls Church City Code § 38-6(c)(2). Unlike subsection

(c)(3), however, the zoning administrator is not authorized

to grant an exemption from the provisions of subsection

3
(c)(2). Any such exemption must be obtained in the form of

a variance granted by the board of zoning appeals under

Falls Church City Code § 38-10(f).

In 2004, the Goyonagas applied to the Board of Zoning

Appeals for the City of Falls Church (“BZA”) for a variance

to enlarge and extend their home by adding a second story

to the existing structure and an addition at the rear of

the structure. The application represented that the

proposed renovations and addition would remain within the

existing, nonconforming side yard setbacks of the original

home. No representation was made in this application that

the renovations would require complete demolition of the

front and side exterior walls of the home. On October 21,

2004, the BZA approved the application for a variance to

permit the enlargement and extension as specified in the

application.

Following approval of the variance, the Goyonagas

submitted building plans to the city’s zoning administrator

and building and planning office. The zoning administrator

found that the proposed depth of the addition to the rear

of the home would have increased the structure’s total

coverage of the lot beyond what was permitted in an R1-B

zone and required the Goyonagas to shorten the addition by

4 feet. Similarly, building officials required certain

4
modifications to the plans to be made, including a

requirement that the portion of the existing walls that

would not be demolished be reinforced to comply with

current building codes and to support the proposed second

story addition. Once these changes were made, the plans

were approved by both the zoning and building officials,

and a building permit was issued.

Construction commenced with the demolition of the

portions of the original structure that were to be removed,

including the roof, the back wall, and a portion of the

side walls. It is not disputed that the portion of the

original structure remaining following this initial

demolition exceeded 25% of the structure as measured by its

assessed value. Accordingly, at this point in the

reconstruction, the requirements of Falls Church City Code

§ 38-6(c)(2) had not been violated.

The Goyonagas did not hire a general contractor, but

oversaw the renovations themselves, employing individual

contractors to perform the majority of the work. In this

manner, the Goyonagas assumed the ultimate responsibility

to assure compliance with the zoning and building codes as

the work progressed. During the course of the demolition

work, a building inspector determined that the structural

integrity of the portion of the exterior walls that was to

5
have been retained was inadequate to support the proposed

new construction. 2 The building inspector required

additional demolition of the exterior walls, which would

require more than 75% of the original structure to be

removed. The Goyonagas directed a contractor to go forward

with the additional demolition without contacting the

zoning office to determine whether a further variance would

be needed. As a result of the additional demolition, as

the circuit court would subsequently find, “the original

house [was] demolished[,] except for portions of the

foundation.” Following the demolition, work commenced with

the construction of new exterior cinderblock walls along

the same perimeter of the former structure.

On March 10, 2006, the zoning administrator conducted

a site visit and determined that as “the original structure

has been totally demolished . . . the work done to date is

clearly outside the scope of work on the approved building

permit and conflicts with Section 38-6 of the City Code

2
The parties dispute whether the cause of the
structural instability arose from latent defects in the
original construction or was the result of improper
demolition operations. Although the BZA contends that the
circuit court resolved this issue in the BZA’s favor, the
record is not clear on that point. However, as will become
apparent, it is not necessary for us to resolve this
dispute, as it is not germane to the issues on appeal.

6
regarding replacement of nonconforming structures.” On

March 20, 2006, the zoning administrator issued a stop work

order, and directed that the new construction was to be

removed and that any new structure subsequently built would

be required to comply with the setback and lot coverage

requirements for new construction in an R-1B zone.

On April 10, 2006, the Goyonagas filed an appeal of

the stop work order with the BZA. In their initial

communication to the zoning administrator challenging the

stop work order, the Goyonagas maintained that because the

new construction would remain within the original footprint

of the former home, the addition complied with the October

21, 2004 variance. The Goyonagas contended that “[b]y its

conformance with the setback variances granted by the Board

of Zoning Appeals, the subject building is no longer

nonconforming and meets all setback requirements.”

(Emphasis added.)

The BZA conducted a hearing on the Goyonagas’ appeal

of the stop work order on May 4, 2006. At the hearing, the

Goyonagas’ counsel reiterated the position that the

reconstruction would “put the [exterior] walls back in the

same place” that the variance had already permitted and,

thus, he contended that a home built within those limits

should be treated as a conforming use of the property for

7
all purposes under the zoning ordinance. In denying the

Goyonagas’ appeal, the BZA made an express finding that

“the structure was, in fact, demolished.” On May 8, 2006,

the zoning administrator advised the Goyonagas of the BZA’s

decision, and the stop work order remained in effect.

The Goyonagas filed a petition for writ of certiorari

and declaratory relief in the Circuit Court of Arlington

County, pursuant to Code § 15.2-2314, seeking review of the

BZA’s decision to deny their appeal of the stop work order.

Specifically, the Goyonagas contended that the BZA had

erred in determining “that the property constituted a

nonconforming use[,] . . . that the removal and replacement

of existing walls, in accordance with instructions by the

City building inspector, nullified the variance previously

granted by the BZA[, and in] its determination that the

building was totally demolished” for purposes of applying

Falls Church City Code § 38-6(c)(2). The Goyonagas also

sought a declaratory judgment that they had acquired a

vested right to construct a home in accord with and as a

result of the building plans being approved by the city

zoning and building officials. They contended that such a

vested right accrued without regard to whether the home was

a renovation of an existing structure or new construction.

8
 The circuit court issued a writ of certiorari to the

BZA. In its return and subsequent answer to the Goyonagas’

petition, the BZA denied that its findings were not

supported by the record or that its decision to deny the

appeal of the stop work order was arbitrary, capricious, or

otherwise contrary to law. The BZA also denied that the

Goyonagas had acquired a vested right to construct a new

home in accord with the building plans. The BZA requested

that the petition be dismissed.

On August 2, 2006, the circuit court conducted a

hearing on the Goyonagas’ challenge to the decision of the

BZA upholding the stop work order and their request for

declaratory relief. Evidence in accord with the above-

recited facts was received through the testimony of Mr.

Goyonaga, a subcontractor and one of his employees, the

zoning administrator, and a building inspector. At the

conclusion of the hearing, the circuit court stated that it

had not heard “any evidence that the factual determinations

of the BZA were incorrect or improper.” Thus, the court

ruled that the BZA had properly determined that when the

“original house was demolished, as is defined in the code

and in common understanding, [the Goyonagas] lost the right

to the nonconforming use on this particular piece of

property.” The court further opined that the actions of

9
the zoning inspector and the building officials in

approving the building plans did not give the Goyonagas a

vested right to construct a nonconforming home on their

lot. Accordingly, the court ruled that the decision of the

BZA would be affirmed.

Before the circuit court entered the final order, the

Goyonagas filed a motion for reconsideration, reiterating

and expanding upon their position that under Code §§ 15.2-

2307 and 15.2-2311 they had acquired a vested right to

construct the home in accord with the building plans as

approved by the zoning administrator and the building

officials. They also reiterated their contention that

“[t]he setback requirements for [the Goyonagas’] property

were established by the [October 21, 2004] variance . . . .

Thus, the [Goyonagas’] structure was no longer a

nonconforming use.”

On October 30, 2006, the circuit court conducted a

hearing on the motion for reconsideration and denied the

motion. In a final order entered the same day, the court

affirmed the decision of the BZA upholding the zoning

administrator’s stop work order. We awarded the Goyonagas

this appeal.

DISCUSSION

10
 The standard of review applicable in this case is well

established. “The decision of a board of zoning appeals is

presumed to be correct on appeal to a circuit court; the

appealing party bears the burden of showing that the board

applied erroneous principles of law or that its decision

was plainly wrong and in violation of the purpose and

intent of the zoning ordinance.” 3 City of Suffolk v. Board

of Zoning Appeals, 266 Va. 137, 142, 580 S.E.2d 796, 798

(2003). “A circuit court decision affirming a board of

zoning appeals determination is also accorded this

presumption of correctness on appeal to this Court.” Id.

at 142-43, 580 S.E.2d at 798; see also Cherrystone Inlet,

LLC v. Board of Zoning Appeals, 271 Va. 670, 675, 628

S.E.2d 324, 236 (2006).

The Goyonagas first assert that the circuit court

erred in affirming the decision of the BZA because the

3
As of July 1, 2006, the provisions of Code § 15.2-
2314 state that on a petition for certiorari to a circuit
court, while “the findings and conclusions of the board of
zoning appeals on questions of fact shall be presumed to be
correct . . . [t]he court shall hear any arguments on
questions of law de novo.” 2006 Acts ch. 446. Because the
petition for certiorari in this case was filed before the
effective date of the amendment of Code § 15.2-2314, the
circuit court would have applied the former version of the
statute, and we will review the circuit court’s judgment in
light of this procedural posture of the case. See Adams
Outdoor Advertising, L.P. v. Board of Zoning Appeals, 274
Va. 189, 195 n.3, 645 S.E.2d 271, 274 n.3 (2007).
11
October 21, 2004 variance “established new zoning

regulations specific to this property” and, thus, it was

thereafter to be treated as a conforming property subject

to the limitations of the variance. 4 We disagree.

The Goyonagas’ assertion that the variance

“establish[ed] new zoning regulations specific to this

property” mischaracterizes the purpose and function of a

variance. “[V]ariances exist to relieve property owners

from unnecessary or unreasonable hardship resulting from

strict application of zoning provisions. However, such

relief is limited by Code §§ 15.2-2201 and -2309 to the

4
In briefing this appeal, the Goyonagas contend that
“[t]he distinction between a nonconforming use and a
[conforming] use permitted by a variance was recently
codified . . . in Code Section 15.2-2309.” Specifically,
the Goyonagas note that the statute was amended to provide
that “[n]otwithstanding any other provision of law, the
property upon which a property owner has been granted a
variance shall be treated as conforming for all purposes
under state law and local ordinance; however, the use or
the structure permitted by the variance may not be
expanded.” 2006 Acts ch. 264. This amendment to Code
§ 15.2-2309 became effective July 1, 2006 after the BZA’s
decision had been rendered and while the petition for
certiorari was pending before the circuit court. Contrary
to an assertion made by counsel for the Goyonagas during
oral argument of this appeal, the courts do not apply
amendments to the Code retroactively unless the authorizing
legislation clearly indicates that it is the General
Assembly’s intent that we do so. Adams v. Alliant
Techsystems, Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356
(2001). Accordingly, the language of the 2006 amendment to
Code § 15.2-2309 has no application in this case, and we
will express no opinion as to its effect.
12
granting of variances from ‘those provisions regulating the

size or area of a lot or parcel of land, or the size, area,

bulk or location of a building or structure.’ ” Adams

Outdoor Advertising, Inc. v. Board of Zoning Appeals, 261

Va. 407, 415, 544 S.E.2d 315, 319 (2001). The variance

granted by the BZA to the Goyonagas on October 21, 2004

comports with this principle. That variance permitted the

Goyonagas, despite the nonconforming use of their property

under Falls Church City Code § 38-6(c)(3), to improve and

extend their home within the existing, nonconforming side

yard setbacks.

The variance did not relieve the Goyonagas from having

to comply with other aspects of the zoning ordinance that

were not directly addressed by the application for the

variance as approved by the BZA. The variance did not

permit an increase in the maximum lot coverage limitations

for a structure in an R-1B zone. Indeed, the Goyonagas did

not and could not challenge the requirement of the zoning

administrator that they reduce the length of the addition

to the home by 4 feet, even though the addition was within

the setbacks allowed by the variance.

Similarly, nothing in the variance as granted by the

BZA under Falls Church City Code § 38-6(c)(3) can be

interpreted as relieving the property from the application

13
of the requirement of Falls Church City Code § 38-6(c)(2)

that a nonconforming structure cannot be “removed or

demolished . . . or damaged by . . . any means whatever to

an extent equal to seventy-five (75) percent of its

assessed value for the year.” Accordingly, we will affirm

the judgment of the circuit court finding no error in the

decision of the BZA with respect to the determination that

the demolition of the Goyonagas’ home, except for portions

of the foundation, resulted in the loss of the right to

continue the nonconforming use of the property.

The Goyonagas also contend that the circuit court

erred in not granting them the requested declaratory relief

and ruling that their reliance on the actions of the zoning

administrator and building officials in approving the

building plans submitted after the variance was granted

afforded them a vested right to construct a home on the

property in accord with those plans. They contend that

this is so because the building plans submitted to the city

zoning and building officials established that the exterior

walls of the home would need to be reinforced in order to

comply with current building code standards and the

approval of the plans by the city officials constituted

“significant affirmative governmental acts allowing

development of a specific project.” Code § 15.2-2307.

14
Thus, by relying on the approval of the plans and the

subsequent instruction of the building inspector to

“reinforce” the walls by replacing them, the Goyonagas

contend that the statute provided them with a “vested

right” to develop the property in accord with those plans

once they had expended significant resources on the

construction of the home. Alternately, the Goyonagas

contend that the zoning administrator’s approval of the

building plans ripened into a vested right 60 days after

the approval was given because they “ha[d] materially

changed [their] position in good faith reliance on the

action of the zoning administrator.” Code § 15.2-2311(C).

We disagree with both of these contentions.

With respect to the application of Code § 15.2-2307,

that statute provides that a property owner who “(i)

obtains or is the beneficiary of a significant affirmative

governmental act which remains in effect allowing

development of a specific project, (ii) relies in good

faith on the significant affirmative governmental act, and

(iii) incurs extensive obligations or substantial expenses

in diligent pursuit of the specific project in reliance on

the significant affirmative governmental act” becomes

vested with the right to develop the property in accord

with that act regardless of “a subsequent amendment to a

15
zoning ordinance.” Assuming, without deciding, that the

approval of the building plans by the city officials

constituted the “significant affirmative governmental act[]

allowing development of a specific project” contemplated by

the statute, it is plain that the zoning administrator’s

subsequent determination that demolition of the structure

to its foundation violated Falls Church City Code § 38-

6(c)(2) and resulted in the loss of the property’s

nonconforming status did not arise from “a subsequent

amendment to [the] zoning ordinance.”

The Goyonagas protest that it “makes no sense” that

that Code § 15.2-2307 provides a vested right “only . . .

if the City of Falls Church enacted a zoning ordinance

change, but no vested right if the [z]oning [a]dministrator

decides to change his position and apply the nonconforming

use standard in [Falls Church] City Code § 38-6[(c)(2)]

after he had approved the plans, building permits had been

issued and construction had begun.” This protest, however,

reflects a fundamental misunderstanding of Code § 15.2-

2307.

The clear intent of the statute is to provide a

property owner with protection from a subsequent amendment

to a zoning ordinance when the owner has already received

approval for and made substantial efforts to undertake a

16
use of the property permitted under the prior version of

the ordinance. Here, even if it can be assumed that the

zoning administrator was aware that complete demolition of

the home was called for in the building plans, at least as

a possible alternative to reinforcement of the existing

walls, he did not have authority to permit the Goyonagas to

violate Falls Church City Code § 38-6(c)(2) by completely

demolishing a nonconforming structure and replacing it with

new, nonconforming construction. See Segaloff v. City of

Newport News, 209 Va. 259, 262, 163 S.E.2d 135, 137 (1968)

(city official cannot authorize a violation of zoning

ordinance); see also Foster v. Geller, 248 Va. 563, 568,

449 S.E.2d 802, 806 (1994) (requirement for special use

permit “could not be circumvented simply by adhering to

conditions prescribed” by city official). In short, Code

§ 15.2-2307 provides for the vesting of a right to a

permissible use of property against any future attempt to

make the use impermissible by amendment of the zoning

ordinance; it is not intended to permit, nor does it

provide for, the vesting of a right to an impermissible use

under the existing ordinance.

Code § 15.2-2311(C), by way of contrast, does provide

for the potential vesting of a right to use property in a

manner that “otherwise would not have been allowed.” Snow

17
v. Amherst County Bd. of Zoning Appeals, 248 Va. 404, 407,

448 S.E.2d 606, 608 (1994). We will assume, without

deciding, that here the zoning administrator’s approval of

the building plans constituted under the statute “a written

order, requirement, decision or determination” that would

not “be subject to change, modification or reversal . . .

after 60 days have elapsed from the date” of that action.

Code § 15.2-2311(C). The issue then is whether the zoning

administrator’s approval of the building plans constituted

a waiver, albeit an improper one, of the requirements of

Falls Church City Code § 38-6(c)(2). We conclude that the

circuit court correctly determined that the evidence did

not establish that the zoning administrator’s approval of

the building plans included an authorization to effect the

complete demolition of the existing structure.

The burden of establishing the vesting of a right to

an otherwise impermissible use of property under Code 15.2-

2311(C) falls upon the property owner. Snow, 248 Va. at

407, 448 S.E.2d at 608. The Goyonagas, therefore, were

required to show that the zoning administrator, in

reviewing the building plans, would have understood that

the home at least potentially was to have been completely

demolished to its foundation and an entirely new structure

was to have been erected in its place. The building plans

18
do not reflect any such potentiality. To the contrary,

even an exhausting examination of these plans as originally

submitted necessarily would lead only to the single

conclusion that the front and principal portions of both

side walls of the existing structure were to be retained. 5

We therefore hold that the Goyonagas did not meet their

burden of proof to establish that they could have

reasonably relied upon the zoning administrator’s approval

of the building plans as authorizing them to completely

5
In a further assignment of error, the Goyonagas
contend that the circuit court erred in failing to admit
into evidence an exhibit, a single line drawing from the
building plans designated as “S101,” that they contend
established by a marginal note that the plans “permitted an
alternative to retaining three existing exterior walls” of
the property. The BZA notes that two other copies of the
same page from the plans appear in the record without the
marginal note upon which the Goyonagas rely. However, even
assuming that the marginal note appeared on the copy of the
plans reviewed by the zoning administrator, that single
note would not alter our conclusion that the plans as a
whole did not clearly establish that the home could be
completely demolished to its foundation. Accordingly, any
error in failing to admit this exhibit was harmless. For
the same reason, we need not consider the Goyonagas final
assignment of error addressing the circuit court finding
that the building plans expressly “called for the
preservation of 25% of the original house in accordance
with [Falls Church City Code] Section 38-6[(c)(2)].” The
burden was not on the BZA to show that plans comported with
the requirements of the zoning ordinance; rather, as we
have stated, the burden was on the Goyonagas to establish
that the plans were plainly contrary to the requirements of
the ordinance, but were nonetheless approved by the zoning
administrator.

19
demolish the home and replace it with a new, nonconforming

structure. For these reasons, we further hold that the

circuit court did not err in ruling that the Goyonagas did

not have a vested right to continuing use of their property

in a manner inconsistent with the current requirements of

the zoning ordinance.

CONCLUSION

In summary, we hold that the circuit court did not err

in ruling that the BZA properly determined that the October

21, 2004 variance did not result in the Goyonagas' property

becoming a conforming use for purposes of applying Falls

Church City Code § 38-6(c)(2). We further hold that the

circuit court correctly determined that the Goyonagas

failed to establish that they had a vested right to

continue the nonconforming use of their property after the

existing home had been completely demolished to its

foundation. Accordingly, the judgment of the circuit court

will be affirmed.

Affirmed.

20