Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Lacy, S.J.
BOARD OF ZONING APPEALS
OF FAIRFAX COUNTY
v. Record No. 070318 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
February 29, 2008
BOARD OF SUPERVISORS
OF FAIRFAX COUNTY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
The dispositive issue in this appeal is whether Code
§ 8.01-380(B), which allows a nonsuit as a matter of right,
applies to a writ of certiorari proceeding filed pursuant to
Code § 15.2-2314.
FACTS AND PROCEEDINGS
On January 20, 2004, following a hearing, the Board of
Zoning Appeals of Fairfax County (the BZA) voted to reverse a
decision of the zoning administrator. The BZA’s decision was
transmitted to the parties in a letter from the Clerk of the
BZA stating that the BZA’s decision became final on February
11, 2004.
On March 12, 2004, the Board of Supervisors of Fairfax
County (the Board) filed a petition for writ of certiorari
pursuant to Code § 15.2-2314, requesting the circuit court to
reverse the BZA’s decision. The landowner affected by the BZA
decision filed a demurrer and plea in bar asserting, among
other things, that the petition for writ of certiorari was not
filed within 30 days of the January 20, 2004 decision of the
BZA as required by Code § 15.2-2314 and, therefore, was
untimely. The BZA filed a “response” to the demurrer
supporting the landowners’ arguments.
While the demurrer and plea in bar were pending, this
Court rendered its opinion in West Lewinsville Heights
Citizens Association v. Board of Supervisors, 270 Va. 259,
268, 618 S.E.2d 311, 315-16 (2005), holding that the 30-day
appeal period set out in Code § 15.2-2314 runs from the date
of the BZA’s decision. The circuit court subsequently wrote
to counsel stating that the West Lewinsville Heights decision
“appears to mandate dismissal of this matter” and asked for
the Board’s position in light of the decision. Before the
circuit court ruled on the issue, the Board filed a motion for
nonsuit pursuant to Code § 8.01-380(B). The BZA opposed the
nonsuit motion arguing that a nonsuit was not available in
this type of statutory certiorari proceeding.
The circuit court granted the Board’s nonsuit motion by
order entered June 13, 2006, and further held that the tolling
provision of Code § 8.01-229(E)(3) was applicable to the
nonsuit granted by the circuit court. The BZA filed this
appeal.
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DISCUSSION
On appeal, the BZA first asserts that the circuit court
erred in concluding that a nonsuit could be granted pursuant
to Code § 8.01-380(B) in this proceeding filed under Code
§ 15.2-2314.
In reaching its decision, the circuit court, quoting
Thomas Gemmell, Inc. v. Svea Fire & Life Insurance Co., 166
Va. 95, 97, 184 S.E. 457, 458 (1936), acknowledged that “a
nonsuit is ‘unsuited to pure appellate procedure,’” but,
relying on Virginia Beach Beautification Commission v. Board
of Zoning Appeals, 231 Va. 415, 417, 344 S.E.2d 899, 901
(1986), the circuit court observed that the “true nature of a
circuit court proceeding on a petition for writ of certiorari
from a BZA determination appears to be unsettled.” The
circuit court then concluded that the proceeding did not
qualify as an appellate proceeding because Code § 15.2-2314
allows the circuit court to take additional evidence or
conduct “in essence, an evidentiary trial.” Therefore,
according to the circuit court, a nonsuit is not precluded in
a proceeding filed pursuant to Code § 15.2-2314. We do not
agree with the circuit court’s characterization of the
proceeding.
Code § 15.2-2314 provides:
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Certiorari to review decision of board.
Any person or persons jointly or severally
aggrieved by any decision of the board of
zoning appeals, or any aggrieved taxpayer or
any officer, department, board or bureau of
the locality, may file with the clerk of the
circuit court for the county or city a
petition specifying the grounds on which
aggrieved within 30 days after the final
decision of the board.
Upon the presentation of such petition,
the court shall allow a writ of certiorari to
review the decision of the board of zoning
appeals and shall prescribe therein the time
within which a return thereto must be made and
served upon the relator’s attorney, which shall
not be less than 10 days and may be extended by
the court. The allowance of the writ shall not
stay proceedings upon the decision appealed
from, but the court may, on application, on
notice to the board and on due cause shown,
grant a restraining order.
The board of zoning appeals shall not be
required to return the original papers acted
upon by it but it shall be sufficient to return
certified or sworn copies thereof or of the
portions thereof as may be called for by the
writ. The return shall concisely set forth
such other facts as may be pertinent and
material to show the grounds of the decision
appealed from and shall be verified.
If, upon the hearing, it shall appear to
the court that testimony is necessary for the
proper disposition of the matter, it may take
evidence or appoint a commissioner to take
evidence as it may direct and report the
evidence to the court with his findings of fact
and conclusions of law, which shall constitute
a part of the proceedings upon which the
determination of the court shall be made. The
court may reverse or affirm, wholly or partly,
or may modify the decision brought up for
review.
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In the case of an appeal from the board of
zoning appeals to the circuit court of an
order, requirement, decision or determination
of a zoning administrator or other
administrative officer in the administration or
enforcement of any ordinance or provision of
state law, or any modification of zoning
requirements pursuant to § 15.2-2286, the
findings and conclusions of the board of zoning
appeals on questions of fact shall be presumed
to be correct. The appealing party may rebut
that presumption by proving by a preponderance
of the evidence, including the record before
the board of zoning appeals, that the board of
zoning appeals erred in its decision. Any
party may introduce evidence in the proceedings
in the court. The court shall hear any
arguments on questions of law de novo.
In the case of an appeal by a person of
any decision of the board of zoning appeals
that denied or granted an application for a
variance, or application for a special
exception, 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.
Costs shall not be allowed against the
board, unless it shall appear to the court that
it acted in bad faith or with malice in making
the decision appealed from. In the event the
decision of the board is affirmed and the court
finds that the appeal was frivolous, the court
may order the person or persons who requested
the issuance of the writ of certiorari to pay
the costs incurred in making the return of the
record pursuant to the writ of certiorari. If
the petition is withdrawn subsequent to the
filing of the return, the board may request
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that the court hear the matter on the question
of whether the appeal was frivolous.
The language of Code § 15.2-2314 demonstrates that a
proceeding filed pursuant to this section has the indicia of
an appeal in which the circuit court acts as a reviewing
tribunal rather than as a trial court resolving an issue in
the first instance. The section is entitled “Certiorari to
review decision of board.” Code § 15.2-2314 (emphasis added).
See Krummert v. Commonwealth, 186 Va. 581, 584, 43 S.E.2d 831,
832 (1947) (while not technically part of the statute, the
heading has long been regarded as “valuable and indicative of
legislative intent”). The statute refers to the proceeding as
an “appeal” no less than seven times. Furthermore, the
section limits the circuit court’s disposition authority. The
circuit court may “reverse or affirm, . . . or may modify the
decision brought up for review.” Code § 15.2-2314. This
limitation on the circuit court’s disposition authority along
with the description of the court’s action as “reviewing” the
decision of the BZA, indicates that the legislature considered
the proceeding as a form of appellate review, rather than a
proceeding resolving the issue in the first instance. The
discretionary option of taking additional evidence is
insufficient to transform the nature of the proceeding from an
appeal to a trial. See Gemmell, 166 Va. at 98, 184 S.E. at
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458 (court not engaged in appellate review when it hears
matter de novo and may disregard judgment of lower tribunal).
Accordingly, we conclude that a petition for certiorari filed
pursuant to Code § 15.2-2314 is in the nature of an appeal,
and as we observed in Gemmell, an appeal is unsuited to a
nonsuit. See also City of Norfolk v. County of Norfolk, 194
Va. 716, 723, 75 S.E.2d 66, 70 (1953).
In granting the Board’s motion for a nonsuit, the circuit
court also concluded that a nonsuit was authorized by Code
§ 8.01-380(B) because the certiorari petition was a “cause of
action.” This conclusion was based on a single sentence in
Code § 8.01-380(B) providing that one nonsuit “may be taken to
a cause of action . . . as a matter of right.”
In determining whether the sentence relied upon by the
circuit court authorizes a nonsuit in the instant proceeding,
we consider the section as a whole. See Cummings v. Fulghum,
261 Va. 73, 77, 540 S.E.2d 494, 496 (2001) (considering “a
statute in its entirety, rather than by isolating particular
words or phrases”), Earley v. Landsidle, 257 Va. 365, 369, 514
S.E.2d 153, 156 (1999). Our review demonstrates that Code
§ 8.01-380 applies to trial proceedings, not proceedings in
the nature of an appeal, such as a petition for certiorari
filed pursuant to Code § 15.2-2314.
Code § 8.01-380 states:
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A. A party shall not be allowed to suffer a
nonsuit as to any cause of action or claim, or
any other party to the proceeding, unless he
does so before a motion to strike the evidence
has been sustained or before the jury retires
from the bar or before the action has been
submitted to the court for decision. After a
nonsuit no new proceeding on the same cause of
action or against the same party shall be had
in any court other than that in which the
nonsuit was taken, unless that court is without
jurisdiction, or not a proper venue, or other
good cause is shown for proceeding in another
court, or when such new proceeding is
instituted in a federal court. If after a
nonsuit an improper venue is chosen, the court
shall not dismiss the matter but shall transfer
it to the proper venue upon motion of any
party.
B. Only one nonsuit may be taken to a cause
of action or against the same party to the
proceeding, as a matter of right, although the
court may allow additional nonsuits upon
reasonable notice to counsel of record for all
defendants and upon a reasonable attempt to
notify any party not represented by counsel, or
counsel may stipulate to additional nonsuits.
The court, in the event additional nonsuits are
allowed, may assess costs and reasonable
attorneys’ fees against the nonsuiting party.
When suffering a nonsuit, a party shall inform
the court if the cause of action has been
previously nonsuited. Any order effecting a
subsequent nonsuit shall reflect all prior
nonsuits and shall include language that
reflects the date of any previous nonsuit
together with the court in which any previous
nonsuit was taken.
C. If notice to take a nonsuit of right is
given to the opposing party within seven days
of trial, the court in its discretion may
assess against the nonsuiting party reasonable
witness fees and travel costs of expert
witnesses scheduled to appear at trial, which
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are actually incurred by the opposing party
solely by reason of the failure to give notice
at least seven days prior to trial. The court
shall have the authority to determine the
reasonableness of expert witness fees and
travel costs.
D. A party shall not be allowed to nonsuit a
cause of action, without the consent of the
adverse party who has filed a counterclaim,
cross claim or third-party claim which arises
out of the same transaction or occurrence as
the claim of the party desiring to nonsuit
unless the counterclaim, cross claim or third-
party claim can remain pending for independent
adjudication by the court.
Subsection (A) of Code § 8.01-380 discusses the refiling
of the action after a nonsuit has been granted in terms of
venue and “another court,” including federal courts. Such
refiling opportunities are not available in the appellate
context. Furthermore, subsection (C) states that a party
seeking a nonsuit as a matter of right risks incurring the
costs of the opposing party’s witness fees and expert witness
travel expenses if the opposing party is not notified of the
nonsuit seven days prior to trial. Code § 8.01-380(C).
Again, expert witnesses, their fees and costs, are elements of
a trial, not of an appellate proceeding.
In summary, a proceeding filed pursuant to Code § 15.2-
2314 is a proceeding in the nature of an appeal, not a trial
proceeding. Code § 8.01-380 applies to trial, not appellate,
proceedings. Accordingly we will reverse the judgment of the
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circuit court granting the Board a nonsuit and remand the case
for further proceedings. ∗
Reversed and remanded.
∗
In light of our decision we need not address the BZA’s
remaining assignments of error regarding the applicability of
the tolling provisions of Code § 8.01-229(E)(3) to the nonsuit
granted by the circuit court.
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