Present: All the Justices
TRUSTEES OF THE CHRIST AND
ST. LUKE’S EPISCOPAL CHURCH, ET AL.
v. Record No. 060913 OPINION BY JUSTICE CYNTHIA D. KINSER
March 2, 2007
BOARD OF ZONING APPEALS OF THE
CITY OF NORFOLK
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Joseph A. Leafe, Judge
In this appeal, we decide whether two parcels of real
property separated by a 50-foot-wide, public street are
“adjacent” and therefore constitute one zoning lot for
purposes of determining maximum allowable lot coverage. We
conclude that, in the context of the zoning ordinances at
issue, the two properties are not “adjacent.” We will
therefore affirm the judgment of the circuit court
upholding the decision of a board of zoning appeals.
RELEVANT FACTS AND PROCEEDINGS
The Trustees of the Christ and St. Luke’s Episcopal
Church (the Trustees) own two parcels of real property
located in the City of Norfolk. One parcel (the Olney road
property), on which a church sanctuary and three other
buildings known as the Parish House, Lloyd Hall, and the
Guild House are situated, fronts on Olney Road. The other
parcel (the Boissevain Avenue property) fronts on
Boissevain Avenue and is improved by two apartment
buildings.1 The Olney Road property and the Boissevain
Avenue property are separated only by Boissevain Avenue,
which is approximately 50 feet wide.
The real properties at issue in this appeal lie within
an area designated by the Zoning Ordinance of the City of
Norfolk (Norfolk Zoning Ordinance) as “HC-G2,” one of the
Ghent Historical and Cultural Conservation districts.
Property located in the HC-G2 district is subject to
certain restrictions. See generally, Norfolk Zoning
Ordinance § 9-1. One such limitation prohibits a building
from occupying more than 55 percent of the lot area on
which it is situated. Norfolk Zoning Ordinance § 9-1.9.
The maximum lot coverage restriction in the HC-G2
district affects the Trustees’ plans for a major renovation
project involving alterations to structures on both the
Olney Road and the Boissevain Avenue properties. According
to the Trustees, the proposed renovations entail expansion
of the church sanctuary, renovation of the Parish House,
1
Some documents in the record indicate that CSL
Apartments, Inc., manages the apartment buildings situated
on the Boissevain Avenue property. It is not clear from
the record whether CSL Apartments, Inc., still owns that
parcel or has transferred legal title to the property to
the Trustees. The Trustees, however, own CSL Apartments,
Inc., and apparently control the Boissevain Avenue
property. For purposes of this appeal, the entity
currently holding legal title to the Boissevain Avenue
property is not relevant.
2
demolition of Lloyd Hall and the two apartment buildings,
and relocation of the Guild House to the Boissevain Avenue
property.
The buildings situated on the Olney Road and
Boissevain Avenue properties all predate the enactment of
the zoning regulations currently in force in the HC-G2
district. Thus, the church sanctuary, even though it fails
to comply with the current requirements for the district,
constitutes a legal, “nonconforming structure.” The zoning
ordinance, however, prohibits the expansion of a
nonconforming structure if the expansion creates additional
nonconformity or increases “the severity or extent of any
existing nonconforming condition.” Norfolk Zoning
Ordinance § 12-3(a).
The Trustees’ proposed expansion of the church
sanctuary will comply with the maximum lot coverage
requirement in the HC-G2 district only if the Olney Road
and the Boissevain Avenue properties are considered,
collectively, one “[l]ot or zoning lot.” In that scenario,
the expanded church sanctuary would cover only 54.98
percent of that combined lot area. On the other hand, if
the properties are two separate zoning lots, then the
sanctuary’s expansion would result in approximately 66
percent of the Olney Road property being covered with a
3
building, thereby exceeding the maximum allowable lot
coverage.
The definition of the term “[l]ot or zoning lot” is
set forth in Norfolk Zoning Ordinance § 2-3:
For zoning purposes a lot or zoning lot is a
piece of land identified on a plat of record or
in a deed of record and of sufficient area and
dimensions to meet district requirements for
width, area, use and coverage, and to provide
such yards and open space as are required. In
this ordinance the terms "lot" and "zoning lot"
have the same meaning and may be used
interchangeably. A lot may consist of
combinations of adjacent individual lots and/or
portions of lots so recorded; provided, however,
that in no case of division or combination shall
any residual lot, portion of lot, or parcel be
created which does not meet the requirements of
this ordinance and the subdivision regulations of
the city.
(Emphasis added).
The Trustees sought from the zoning administrator of
the City of Norfolk an interpretation of the term
“adjacent,” as it is used in Norfolk Zoning Ordinance § 2-
3, that would allow them to treat the Olney Road and
Boissevain Avenue properties as “adjacent individual lots”
comprising one “[l]ot or zoning lot.”2 The zoning
administrator, however, concluded that “the term ‘adjacent’
as it appears in the definition of ‘Lot or zoning lot’ has
2
The provisions of Norfolk Zoning Ordinance § 20-2
state that the “zoning administrator . . . may render
4
been and, in the case of Christ and St. Luke’s Episcopal
Church, will continue to be, interpreted . . . to mean
‘next to’ and not ‘across the street from.’ ” The zoning
administrator “decided that, for purposes of considering a
‘lot or zoning lot[,]’ the term ‘adjacent’ does not include
properties across public rights of way.”
The Trustees appealed the zoning administrator’s
decision to the Board of Zoning Appeals of the City of
Norfolk (the BZA). After a hearing, the BZA upheld the
zoning administrator’s interpretation of the term
“adjacent.” The Trustees then filed a petition for writ of
certiorari in the circuit court, seeking a reversal of the
BZA’s decision. After hearing argument, the circuit court
affirmed the BZA’s decision. In a letter opinion, the
circuit court concluded that the zoning administrator
“ruled that the lots were not adjacent because they are
separated by a fifty-foot public street.” Continuing, the
circuit court stated that the BZA agreed with the zoning
administrator “that when two pieces of property are
separated by a fifty-foot public street, they are not
adjacent for purposes of defining zoning lots.”
Ultimately, the circuit court held that the BZA “applied
interpretations . . . of the provisions of this ordinance
and of any rule or regulation issued pursuant to it.”
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correct principles of law and adopted a definition of
‘adjacent’ that is both reasonable and consistent with the
Zoning Ordinances as a whole.” We awarded the Trustees
this appeal.
ANALYSIS
On appeal before the circuit court, the BZA’s decision
was entitled to a presumption of correctness. Code § 15.2-
2314 (2005) (amended by 2006 Acts ch. 446).3 The Trustees,
as the appealing party, could rebut that presumption “by
proving by a preponderance of the evidence . . . that the
[BZA] erred in its decision.” Code § 15.2-2314. Since the
issue before the circuit court was a question of law, i.e.,
the proper interpretation of the term “adjacent” in Norfolk
Zoning Ordinance § 2-3, the Trustees had the burden of
demonstrating that the BZA “either applied ‘erroneous
principles of law’ or that its decision was ‘plainly wrong
and in violation of the purpose and intent of the zoning
ordinance.’ ” Board of Supervisors v. Board of Zoning
3
Effective July 1, 2006, the General Assembly amended
the provisions of Code § 15.2-2314 to state that on appeal
to a circuit court, “the findings and conclusions of the
board of zoning appeals on questions of fact shall be
presumed to be correct” and that “[t]he court shall hear
any arguments on questions of law de novo.” 2006 Acts ch.
446. References in this opinion to Code § 15.2-2314
pertain to the version in effect before the 2006
amendments.
6
Appeals, 271 Va. 336, 348, 626 S.E.2d 374, 382 (2006)
(quoting Lamar Co. v. Board of Zoning Appeals, 270 Va. 540,
545, 620 S.E.2d 753, 756 (2005) (internal quotation marks
omitted)); see also, Foster v. Geller, 248 Va. 563, 566,
449 S.E.2d 802, 804−05 (1994) (“The party challenging the
BZA’s decision has the burden of proof on these issues.”).
On appeal before this Court, we afford a circuit court’s
judgment affirming a BZA’s final decision the same
presumption of correctness. Patton v. City of Galax, 269
Va. 219, 229, 609 S.E.2d 41, 46 (2005).
The Trustees assert that the circuit court erred by
affirming the BZA’s decision upholding the zoning
administrator’s interpretation of the term “adjacent.”
According to the Trustees, that interpretation wrongly
equated the term “adjacent” with the term “adjoining.” The
Trustees claim that this interpretation contradicts the
plain meaning of the word “adjacent” and is inconsistent
with this Court’s precedent and with the use of the word in
other sections of the Norfolk Zoning Ordinance. They also
argue that the BZA improperly considered the future effect
of failing to adopt the zoning administrator’s
interpretation of the term “adjacent.”
Contrary to the Trustees’ argument that the zoning
administrator and the BZA interpreted the term “adjacent”
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to have essentially the same meaning as the terms
“adjoining” or “contiguous,” neither the zoning
administrator, nor the BZA, nor the circuit court relied on
the fact the Boissevain Avenue and Olney Road properties do
not adjoin or touch one another in arriving at their
respective conclusions that the properties at issue do not
constitute one “[l]ot or zoning lot” under Norfolk Zoning
Ordinance § 2-3. Instead, the circuit court determined
that the BZA “agreed with the [z]oning [a]dministrator that
when two pieces of property are separated by a fifty-foot
public street, they are not adjacent for purposes of
defining zoning lots.” The circuit court recognized, and
we agree, that deciding when two objects are not widely
separated, but are close enough to be adjacent requires a
“judgment call.”
That decision, or “judgment call,” is “best
accomplished by those charged with enforcing” the Norfolk
Zoning Ordinance, i.e., the zoning administrator and the
BZA. See Lamar, 270 Va. at 547, 620 S.E.2d at 757; see
also Norfolk Zoning Ordinance §§ 20-1 and 20-2 (the
provisions of the zoning ordinance cannot address every
specific situation; thus, the zoning administrator is
authorized to render interpretations of the provisions of
the zoning ordinance). “A consistent administrative
8
construction of an ordinance by the officials charged with
its enforcement is entitled to great weight.” Masterson v.
Board of Zoning Appeals, 233 Va. 37, 44, 353 S.E.2d 727,
733 (1987). We give such deference to the administrative
interpretation of zoning ordinances, in part, because
“[z]oning administrators and boards of zoning appeals . . .
are able to ensure consistent application consonant with a
local government’s intent for specific ordinances. Such
agencies develop expertise in the relationship between
particular textual language and a local government’s
overall zoning plan.” Lamar, 270 Va. at 547, 620 S.E.2d at
757.
The Trustees, however, assert that there was no
evidence of any prior consistent interpretation of the term
“adjacent.” We find otherwise. The BZA had before it a
copy of a letter the assistant city attorney sent to the
Trustees’ counsel, wherein the assistant city attorney
explained:
[F]or the purposes of considering a “lot or zoning
lot[,]” the term “adjacent” does not include
properties across public rights of way. This
interpretation has been applied uniformly throughout
the city. The logic behind this interpretation . . .
is to promote the spirit and purpose of the zoning
requirements contained in the ordinance. It would
work against that spirit to permit buildings located
on one side of a street to cover nearly 100% of a
parcel in those situations where the owner happens to
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own a vacant or nearly vacant parcel across the
street.
It is also evident from comments at the hearing before the
BZA that its members understood that the zoning
administrator had consistently interpreted the word
“adjacent” to preserve the intent of the zoning ordinances
with regard to a “[l]ot or zoning lot” and the maximum
allowable lot coverage.
The Trustees further claim that the zoning
administrator’s interpretation of the term “adjacent” was
inconsistent with the use of that term in footnote 3 to
Table 6-A of the Norfolk Zoning Ordinance. That provision
states:
Where the new construction is infill
development on a zoning lot between two existing
buildings, the front yard requirement for the new
construction may match the existing yards for the
adjacent buildings or may be the average of the
existing yards of the adjacent buildings,
whichever is applicable. Where the infill
development occurs on a corner lot, the building
immediately across the street shall be considered
an adjacent building for determining the front
yard requirement.
Norfolk Zoning Ordinance, Table 6-A n.3 (emphasis added).
The emphasized language is not, as the Trustees suggest,
“simply a reminder [that] the word ‘adjacent’ . . . mean[s]
‘across the street from.’ ” Instead, without that
10
language, buildings on corner lots would not, in the
context of that particular provision, be adjacent.
Nor is the zoning administrator’s interpretation
contrary to this Court’s decision in State Highway &
Transportation Commissioner v. Creative Displays of
Norfolk, Ltd., 236 Va. 352, 374 S.E.2d 30 (1988). There, a
statute provided that “‘no sign or advertisement adjacent
to any interstate or federal-aid primary highway shall be
erected . . . which is visible from the main-traveled way
within 660’ of the nearest edge of the right-of-way.’ ”
Id. at 353, 374 S.E.2d at 31 (quoting Code § 33.1-370).
The question on appeal was whether a billboard situated
“123.31 feet from the nearest edge of an interstate
highway, but separated from the highway by a city street”
was nevertheless “adjacent” to the interstate highway
within the meaning of the relevant statute. Id. Relying
on the primary definition of the term “adjacent” as
“ ‘[l]ying near or close to[,] . . . impl[ying] that the
two objects are not widely separated,’ ” and also on the
intent and purpose of the General Assembly in regulating
outdoor advertising, we concluded that the billboard in
question was “adjacent” to the interstate highway and
therefore regulated by the provisions of Code § 33.1-370.
11
Id. at 354—55, 374 S.E.2d at 32 (quoting Black’s Law
Dictionary 38 (5th ed. 1979)).4
Our decision in Creative Displays does not mean, as
the Trustees assert, that in every context where two
objects are separated only by a public right-of-way, they
are adjacent. Instead, we must proceed, as we did in
Creative Displays, to interpret the term “adjacent” in the
context of the enactment employing that word. Here,
therefore, we construe the term “adjacent” in harmony with
the purpose and intent underlying the zoning ordinance’s
lot-coverage provisions. In doing so, we conclude, as did
the circuit court, that the BZA applied correct principles
of law and adopted an interpretation of the term “adjacent”
that is not plainly wrong or in violation of the purpose
and intent of the Norfolk Zoning Ordinance as a whole.
Furthermore, the provisions of Norfolk Zoning Ordinance
§ 2-3 state that “[a] lot may consist of combinations of
adjacent individual lots.” (Emphasis added.) That section
does not require arguably adjacent lots to be combined in
every situation.
4
The current version of Black’s Law Dictionary
defines adjacent as “[l]ying near or close to, but not
necessarily touching.” Black’s Law Dictionary 44 (8th ed.
2004).
12
Thus, we cannot say the decision of the BZA upholding
the zoning administrator’s interpretation was “so at odds
with the plain language used in the ordinance as a whole”
that the decision should be reversed. Board of Zoning
Appeals v. 852 L.L.C., 257 Va. 485, 489, 514 S.E.2d 767,
770 (1999). Nor did the BZA err by considering the future
implications of adopting a different interpretation of the
term “adjacent.”
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.
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