Present: All the Justices
BOARD OF SUPERVISORS OF FAIRFAX
COUNTY, ET AL.
v. Record No. 051269 OPINION BY JUSTICE CYNTHIA D. KINSER
March 3, 2006
BOARD OF ZONING APPEALS OF FAIRFAX
COUNTY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
The primary issue in this appeal concerns the
timeliness of a petition for a writ of certiorari filed by
the Fairfax County Board of Supervisors (the Supervisors)
and the Fairfax County Zoning Administrator (the Zoning
Administrator) (collectively the County), seeking review of
a final decision of the Fairfax County Board of Zoning
Appeals (the BZA). Because the 30-day filing requirement
set forth in Code § 15.2-2314 is not an aspect of the
circuit court’s subject matter jurisdiction to hear the
appeal, the County’s failure to timely file its petition
for a writ of certiorari cannot be raised for the first
time before this Court.
This appeal also involves the interpretation of a 1941
zoning ordinance and whether a garage apartment built over
50 years ago presently qualifies as a lawful nonconforming
use. Because the relevant zoning ordinance permitted only
one principal dwelling on a single lot, we will reverse the
judgment of the circuit court.
I. RELEVANT FACTS AND PROCEEDINGS
Donald J. and Jaki S. McCarthy (the McCarthys) own
approximately 1.475 acres of real estate located in Fairfax
County. The property is currently situated in a
residential zoning district known as R-1, meaning that
there cannot be more than one dwelling unit on any one lot
nor can “a dwelling unit be located on the same lot with
any other principal building.” Fairfax County Zoning
Ordinance (Zoning Ordinance) § 2.501. The property is
developed with a single-family dwelling, built in 1945, and
a two-story detached garage that contains an apartment on
the second floor. The garage apartment was constructed in
1950.
On February 5, 2004, a zoning inspector informed the
McCarthys that the existence of the garage apartment
violated Zoning Ordinance § 2.501.1 The McCarthys appealed
the violation notice to the BZA. They claimed that the
garage apartment was a qualified nonconforming use on the
basis that it was lawfully established under the 1941
Fairfax County Zoning Ordinance (1941 Ordinance).
2
In 1941, the subject property was zoned as
agricultural. In the “Agricultural District,” permitted
uses included any use that was allowed in the “Rural
Residence District.” 1941 Ordinance § III(A)(2).
Permitted uses in the Rural Residence District included a
“[s]ingle family detached dwelling” and a “[p]rivate garage
which shall not be used to house more than two vehicles in
excess of those used by the residents of the premises on
which the garage is located.” Id. at §§ IV(A)(1),
IV(A)(7). The term “single-family dwelling” was defined as
“[a] dwelling constructed to accommodate only one family,
and containing only one housekeeping unit.” Id. at § I(6).
The 1941 Ordinance defined the term “garage” as “[a]
building used for the housing or storing of motor driven
vehicles” and listed it as an example of an “accessory
building” in the definition provided for that term. Id. at
§§ I(1), I(9). No structure in the agricultural district
could be erected “on a lot or building site containing an
area of less than one-half . . . acre.” Id. at
§ III(C)(1).
At a public hearing before the BZA held on May 25,
2004, the McCarthys argued that there was nothing in the
1
The zoning inspector advised the McCarthys of other
violations of the Zoning Ordinance, but those alleged
3
1941 Ordinance prohibiting “a property from having two
dwelling units.” They presented testimony from the
daughter of the original owner of the subject property.
She stated that the “apartment was built with the specific
intended use as a dwelling. . . . The apartment was built
in accordance with the Zoning Ordinance in effect at that
time. It has been continually operated as a rental
apartment ever since.”
After hearing the evidence, the BZA agreed with the
McCarthys and voted to overturn the decision of the Zoning
Administrator. One member of the BZA noted that the
language in the 1941 Ordinance was ambiguous. Another
member stated, “it sounds to me like, as long you [sic] had
enough room, a half-acre per structure, you could still do
a structure on something other than a lot.” Since the 1941
Ordinance specifically said “one or more,” the member
reasoned that the second dwelling would have been allowed.
The perceived ambiguity in the 1941 Ordinance, coupled with
the fact that the garage apartment had been continually
used since it was built, led the BZA to find in favor of
the McCarthys.
In a letter to the McCarthys, the BZA confirmed its
May 25, 2004 action but advised the McCarthys that the date
violations are not before us in this appeal.
4
of the BZA’s final decision was June 2, 2004. On July 1,
2004, the County petitioned the circuit court, pursuant to
Code § 15.2-2314, for a writ of certiorari to review the
BZA’s decision. The circuit court granted the writ and
ordered the BZA “to make a verified return of its record.”
The circuit court subsequently heard the appeal and
affirmed the decision of the BZA. The court concluded that
the BZA had not “applied erroneous principles of law [or]
that its decision was plainly wrong.”
The County appealed from the circuit court’s judgment
to this Court. In the opening brief, the County admits
that, under the Court’s decision in West Lewinsville
Heights Ass’n v. Board of Supervisors, 270 Va. 259, 618
S.E.2d 311 (2005), its petition for a writ of certiorari
seeking review of the BZA’s final decision was not timely
filed. The County, however, argues the timeliness of the
petition for a writ of certiorari cannot be raised for the
first time before this Court. The BZA did not participate
in the proceedings before the circuit court, nor did the
McCarthys question the timeliness of the petition in the
circuit court. The BZA, however, entered an appearance in
this Court to address the issue of timely filing.
5
II. ANALYSIS
We will first address the issue concerning the
timeliness of the County’s petition for a writ of
certiorari and whether that issue can be raised for the
first time in this Court. We will then consider the merits
of the County’s assignments of error challenging the
decision of the circuit court finding that the McCarthys’
garage apartment is a lawful nonconforming use.
1. Timeliness
The provisions of Code § 15.2-2314 govern appeals from
a final decision of a board of zoning appeals to a circuit
court. In pertinent part, the statute states:
Any person or persons jointly or severally
aggrieved by any decision of the board of zoning
appeals, or any aggrieved . . . 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.
Code § 15.2-2314. Thus, under the terms set forth by the
General Assembly, the County had 30 days from the BZA’s
final decision to file a petition for a writ of certiorari.
Even though the County admits that it did not file its
petition within that 30 days, the question that remains is
whether the timeliness of the petition for a writ of
certiorari can be questioned for the first time before this
6
Court. Stated differently, is the failure to file the
petition within the required 30-day period a defect in the
circuit court’s subject matter jurisdiction and therefore a
claim not capable of being waived? See Earley v.
Landsidle, 257 Va. 365, 371, 514 S.E.2d 153, 156 (1999)
(“[t]he lack of subject matter jurisdiction may be raised
at any time during a proceeding,” including on appeal).
We have not previously determined the nature of the
30-day period specified in Code § 15.2-2314 for filing a
petition for a writ of certiorari to review the final
decision of a board of zoning appeals. The County,
however, asserts that we decided this issue in Board of
Supervisors of Fairfax County v. Board of Zoning Appeals of
Fairfax County, 225 Va. 235, 302 S.E.2d 19 (1983). We do
not agree.
There, the question was “whether the successful
applicant before the board of zoning appeals must be made a
party to the certiorari proceeding within the thirty-day
period prescribed by” former Code § 15.1-497 (now Code
§ 15.2-2314). Id. at 237, 302 S.E.2d at 20. We concluded
that, because the statute required
only that an aggrieved person file a petition for
certiorari within the prescribed thirty-day
period and that the petition specify the grounds
upon which the petitioner is aggrieved. . . . no
action other than the filing of a proper petition
7
within the prescribed period [was] necessary to
complete the institution of the proceeding.
Id. at 238, 302 S.E.2d at 21. Until the board of zoning
appeals made a return on the writ of certiorari, “the only
necessary parties [were] the aggrieved person and the
board.” Id. Unlike the present case, the aggrieved party
in Board of Supervisors had timely filed the petition for a
writ of certiorari in the circuit court.
In order to decide whether the County’s failure to
timely file the petition for a writ of certiorari can be
raised for the first time before this Court, we must
revisit the term “jurisdiction.” “Jurisdiction . . . is
the power to adjudicate a case upon the merits and dispose
of it as justice may require.” Shelton v. Sydnor, 126 Va.
625, 629, 102 S.E. 83, 85 (1920). In order for a court to
have the power to adjudicate a particular case upon the
merits, i.e., to have “active jurisdiction,” Farant Inv.
Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E. 141, 144
(1924), several elements are needed. See also Morrison v.
Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990).
Those elements are
subject matter jurisdiction,[2] which is the
authority granted through constitution or statute
2
Subject matter jurisdiction is sometimes referred to
as “potential jurisdiction”, i.e. “ ‘the power granted by
the sovereignty creating the court to hear and determine
8
to adjudicate a class of cases or controversies;
territorial jurisdiction, that is, authority over
persons, things, or occurrences located in a
defined geographic area; notice jurisdiction, or
effective notice to a party or if the proceeding
is in rem seizure of a res; and “the other
conditions of fact must exist which are demanded
by the unwritten or statute law as the
prerequisites of the authority of the court to
proceed to judgment or decree.”
Id. (quoting Farant Inv. Corp., 138 Va. at 427-28, 122 S.E.
at 144) (footnote added). All these elements “are
necessary to enable a court to proceed to a valid
judgment.” Morrison, 239 Va. at 169, 387 S.E.2d at 755.
There is, however, a fundamental distinction between the
element of subject matter jurisdiction and the “other
‘jurisdictional’ elements.” Id.
Jurisdiction of the subject matter can only be
acquired by virtue of the Constitution or of some
statute. Neither the consent of the parties, nor
waiver, nor acquiescence can confer it. Nor can the
right to object for a want of it be lost by
acquiescence, neglect, estoppel or in any other
manner. . . . and the want of such jurisdiction of the
trial court will be noticed by this court ex mero
motu.
Humphreys v. Commonwealth, 186 Va. 765, 772-73, 43 S.E.2d
890, 894 (1947) (citation omitted); accord Morrison, 239
Va. at 169, 387 S.E.2d at 755. Furthermore, the lack of
subject matter jurisdiction can be initially raised at any
controversies of a given character.’ ” Farant Inv. Corp.,
138 Va. at 427, 122 S.E. at 144 (citation omitted).
9
point during the proceedings, including on appeal.
Morrison, 239 Va. at 170, 387 S.E.2d at 756.
In Code § 17.1-513, the General Assembly granted
circuit courts appellate jurisdiction over appeals from the
judgments and proceedings of inferior tribunals in such
civil and criminal cases as the General Assembly may
provide. The General Assembly granted authority to circuit
courts specifically to review any final decision of a board
of zoning appeals in Code § 15.2-2314. Together, those two
statutes confer upon circuit courts subject matter
jurisdiction over the class of cases consisting of appeals
from the final decisions of boards of zoning appeals.
The provisions of Code § 15.2-2314, however, demand
another “condition[] of fact [to] exist . . . as the pre-
requisites of the authority of the court to proceed to
judgment or decree.” Farant Inv. Corp., 138 Va. at 427-28,
122 S.E. at 144. The aggrieved person must file in the
circuit court a petition for a writ of certiorari
“specifying the grounds on which aggrieved within 30 days
after the final decision of the board.” Code § 15.2-2314.
The 30-day filing requirement set by the General Assembly
does not define the class of cases, i.e. the subject matter
jurisdiction, over which the circuit court has authority to
adjudicate. Instead, as noted above, that class of cases
10
is established in Code §§ 17.1-513 and 15.2-2314 as appeals
from final decisions of boards of zoning appeals. In other
words, the 30-day filing requirement is not an aspect of
subject matter jurisdiction, but rather is a statutory
prerequisite for a circuit court to proceed to adjudicate
an appeal from a final decision of a board of zoning
appeals.3 See Morrison, 239 Va. at 169, 387 S.E.2d at 755;
Farant Inv. Corp., 138 Va. at 427-28, 122 S.E. at 144.
We made a similar distinction in Nelson v. Warden of
Keen Mountain Corr. Ctr., 262 Va. 276, 552 S.E.2d 73
(2001). There, we distinguished between subject matter
jurisdiction granted by constitution or statute and the
statutory requirements that enable a court to exercise its
subject matter jurisdiction. Id. at 282, 552 S.E.2d at 76.
We concluded that a statutory requirement of notice to
parents was not jurisdictional but procedural in nature and
could be waived by a failure to raise a timely objection to
the lack of notice. Id. at 285, 552 S.E.2d at 78.
3
The 30-day filing requirement could also be viewed as
“notice jurisdiction, or effective notice to a party.”
Morrison, 239 Va. at 169, 387 S.E.2d at 755. The purpose
of a time limitation for filing an appeal “is not to
penalize the appellant but to protect the appellee. If the
required papers are not [timely] filed . . . the appellee
is entitled to assume that the litigation is ended, and to
act on that assumption.” Avery v. Brunswick County Sch.
Bd., 192 Va. 329, 333, 64 S.E.2d 767, 770 (1951).
11
Likewise, in Morrison we concluded that a 90-day
waiting period for filing a medical malpractice action was
a mandatory procedural requirement and did not involve
subject matter jurisdiction. 239 Va. at 173, 387 S.E.2d at
757-58. The failure to comply with the requirement,
therefore, did “not divest the [circuit] court of [its]
subject matter jurisdiction.” Id. at 173, 387 S.E.2d at
758. In reaching that decision, we pointed out that the
General Assembly had, by statute, granted subject matter
jurisdiction to circuit courts to decide cases and
controversies involving torts and that medical malpractice
actions are tort claims. Id. at 172, 387 S.E.2d at 757;
cf. Sabre Constr. Corp. v. County of Fairfax, 256 Va. 68,
72, 501 S.E.2d 144, 147 (1998) (ten-day requirement for
filing appeal from decision of public body to award a
contract was “a special limitation” on the “substantive
right to file an action against a county” or a “condition
precedent to maintaining the claim”); Commonwealth v.
Brunson, 248 Va. 347, 353, 448 S.E.2d 393, 397 (1994)
(failure to file an information for forfeiture within 90
days of the date when the Commonwealth seized property
deprived the trial court of jurisdiction to consider the
information).4
4
We did not decide in Sabre or Brunson whether the
12
In many cases where time limitations for filing
appeals were at issue, we referred to those filing
requirements as “jurisdictional.” For example, to perfect
an appeal from a circuit court to this Court, Rule 5:9
states that “[n]o appeal shall be allowed unless, within 30
days after the entry of final judgment or other appealable
order or decree, counsel for the appellant files with the
clerk of the trial court a notice of appeal.” Rule 5:9(a).
A timely-filed notice of appeal is necessary to confer
jurisdiction upon this Court to hear the appeal. See Super
Fresh Food Mkts. v. Ruffin, 263 Va. 555, 563, 561 S.E.2d
734, 739 (2002) (since notice of appeal was filed after the
30-day time period, the “Court lack[ed] jurisdiction to
consider [it]”); School Bd. of the City of Lynchburg v.
filing requirement at issue in each case was an aspect of
subject matter jurisdiction and thus capable of being
raised at any time, nor did we need to do so. In both
instances, the issue had been timely raised in the trial
court. Sabre, 256 Va. at 70, 510 S.E.2d at 146; Brunson,
248 Va. at 349, 448 S.E.2d at 395. However, in Cunningham
v. Smith, 205 Va. 205, 135 S.E.2d 770 (1964), we allowed a
defendant, in a collateral attack on his conviction, to
claim that his conviction was void because the orders of
conviction did not show the concurrence of the
Commonwealth's Attorney in waiving a trial by jury as
required by the Constitution of Virginia. Id. at 206, 135
S.E.2d at 771. We concluded that compliance with the
mandatory provision of the Constitution of Virginia was
essential to the trial court’s jurisdiction to try the
defendant without a jury and that, without compliance,
jurisdiction was not obtained. Id. at 208, 135 S.E.2d at
773.
13
Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d
319, 323 (1989) (this Court lacked “jurisdiction to
entertain the appeal on its merits because no notice of
appeal was filed with the clerk of the trial court within
30 days after entry of the final order”); cf. Hurst v.
Ballard, 230 Va. 365, 367, 337 S.E.2d 284, 285 (1985)
(failure to pay writ tax within prescribed time limit
divests circuit court of jurisdiction because this Court
has consistently “held that the failure to comply with
rules governing appeals precludes ‘the exercise of the
jurisdiction of the circuit court over the proceedings’ ”
(citation omitted)).
Similarly, in the Administrative Process Act, the
General Assembly provided a procedure for court review of
certain actions taken by administrative agencies. Code
§ 2.2-4026. To obtain such a review, Rule 2A:2 requires
that “[a]ny party appealing from a regulation or case
decision shall file, within 30 days . . . of the final
order in the case decision, with the agency secretary a
notice of appeal.” The timely filing of that notice of
appeal is jurisdictional. See State Water Control Bd. v.
Crutchfield, 265 Va. 416, 423, 578 S.E.2d 762, 766 (2003)
(“[b]ecause the petitioners’ notice of appeal and original
petition for appeal were timely filed within the 30-day
14
time periods specified . . . the circuit court had
jurisdiction”); Virginia Retirement Sys. v. Avery, 262 Va.
538, 542, 551 S.E.2d 612, 614 (2001) (“the circuit court
had jurisdiction over the appeal because [appellee] had
perfected it by filing her notice of appeal and her
petition for appeal within the times specified”); Occoquan
Land Dev. Corp. v. Cooper, 239 Va. 363, 368, 389 S.E.2d
464, 467 (1990) (finding that “the county failed to perfect
its appeal in a timely manner, . . . the trial court was
without jurisdiction to hear the case”); see also Sours v.
Virginia Bd. for Architects, Prof’l Eng’rs, Land Surveyors
and Landscape Architects, 30 Va. App. 313, 318, 516 S.E.2d
712, 715 (1999) (“the timely filing of a petition for
appeal of an agency decision is jurisdictional”); cf.
Bendele v. Virginia Dep’t of Med. Assistance Servs., 29 Va.
App. 395, 400, 512 S.E.2d 827, 829-30 (1999) (“because the
appellant concedes that she did not comply with Rule 2A:4,
the circuit court did not have jurisdiction to hear this
administrative appeal”). In all these cases, we did not,
however, state that the time requirements for the appellate
filings at issue were an aspect of subject matter
jurisdiction. That question was not before us because, in
each case, any concern about compliance with the respective
time period for filing the appeal had been timely raised,
15
and we therefore did not need to decide whether the issue
had been or could have been waived.
Like the statutory provisions in Morrison and Nelson,
the 30-day filing requirement in Code § 15.2-2314 does not
involve the subject matter jurisdiction of a circuit court
to adjudicate the matter in controversy. As such, the
filing requirement is an “other ‘jurisdictional’ element[]”
subject to waiver if not properly raised. Morrison, 239
Va. at 169, 387 S.E.2d at 755. Thus, we hold that the
County’s failure to file the petition for a writ of
certiorari under Code § 15.2-2314 within 30 days of the
final decision of the BZA did not divest the circuit court
of its subject matter jurisdiction. The issue of timely
filing is therefore waived since it was not raised in the
circuit court. See Rule 5:25. We turn now to the merits
of the assignments of error presented by the County.
2. Nonconforming Use
The sole remaining issue is whether the garage
apartment was a lawful nonconforming use. We have defined
such a use as “ ‘a lawful use existing on the effective
date of the zoning restriction and continuing since that
time in non-conformance to the ordinance.’ ” C. & C., Inc.
v. Semple, 207 Va. 438, 439 n.1, 150 S.E.2d 536, 537 n.1
(1966) (citation omitted); see also Code § 15.2-2307. When
16
a locality challenges a use as illegal, the locality “has
the initial burden of producing evidence to show the uses
permitted in the zoning district in which the land is
located and that the use of the land is not a permitted
use.” Masterson v. Board of Zoning Appeals, 233 Va. 37,
47, 353 S.E.2d 727, 734 (1987). The burden then shifts to
the landowner to establish that the use is a lawful
nonconforming use. Id. The landowner “has both the burden
of initially producing evidence tending to prove a lawful
nonconforming use and the burden of persuading the fact-
finder.” Knowlton v. Browning-Ferris Indus. of Virginia,
Inc., 220 Va. 571, 574, 260 S.E.2d 232, 235 (1979).
The final decision of a board of zoning appeals with
regard to “an order, requirement, decision or determination
of a zoning administrator . . . in the administration or
enforcement of any ordinance . . . [is] presumed to be
correct” on appeal to a circuit court. Code § 15.2-2314;
accord Lamar Co., LLC v. Board of Zoning Appeals, 270 Va.
540, 545, 620 S.E.2d 753, 755-56 (2005). “The appealing
party may rebut that presumption by proving by a
preponderance of the evidence . . . that the board of
zoning appeals erred in its decision.” Code § 15.2-2314.
The “preponderance of the evidence” standard, however,
pertains only to questions about the sufficiency of the
17
record to prove a particular fact. Lamar, 270 Va. at 546,
620 S.E.2d at 756. When, as in the case before us, the
issue is a question of law, i.e., the interpretation of the
1941 Ordinance, the appealing party must show that the
board 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.’ ” Id. at
545, 620 S.E.2d at 756 (quoting City of Suffolk v. Board of
Zoning Appeals, 266 Va. 137, 142, 580 S.E.2d 796, 798
(2003)). On appeal to this Court, a circuit court’s
determination affirming the final decision of a board of
zoning appeals is accorded the same presumption of
correctness. Patton v. City of Galax, 269 Va. 219, 229,
609 S.E.2d 41, 46 (2005).
The 1941 Ordinance was a permissive zoning ordinance.
County of Fairfax v. Parker, 186 Va. 675, 688, 44 S.E.2d 9,
15 (1947). Under such an ordinance “ ‘only those uses
which are specifically named are permitted, and so the
burden is on the property owner to show that the use he
proposes is one that is included or permitted.’ ” Id. at
684, 44 S.E.2d at 13 (citation omitted). Thus, in order to
prevail, the McCarthys had to show that the 1941 Ordinance
permitted, in the Agricultural District, multiple single-
family dwellings on a lot. In order to determine if the
18
garage apartment was permitted on the subject property
under the 1941 Ordinance, the definition of the term “lot”
must be examined:
A piece or parcel of land abutting on a
street whose area, in addition to the parts
thereof occupied or which may hereafter be
occupied by a building and buildings accessory
thereto, is sufficient to furnish the yards, and
minimum area required for compliance with this
ordinance. The word lot shall include building
site.
1941 Ordinance § I(13).
We agree with the County’s argument that, under the
definition of the term “lot” in the 1941 Ordinance, only
one principal dwelling was permitted on a single lot. The
critical portion of the definition is the clause “in
addition to the parts thereof occupied or which may . . .
be occupied by a building and buildings accessory thereto.”
(Emphasis added.) This clause limited the number of
principal buildings permitted on a single lot to one
building but permitted more than one accessory building.
Thus, a lot consisted of a piece of land abutting on a
street whose area, in addition to the area occupied by a
building and accessory buildings, met the yards and minimum
area requirements of the 1941 Ordinance. Although the term
“building site” is not defined in the 1941 Ordinance, the
definition of the term “lot” specifically included a
19
building site. The McCarthys overlook this portion of the
definition in their argument that the term “building site”
is separate and distinct from the term “lot.”
We agree with the McCarthys’ argument that the use of
the word “parts” in the definition meant that lots could
have different parts or areas occupied by buildings. That
conclusion, however, does not change the clear language of
the 1941 Ordinance permitting only one principal building
on a lot. The word “parts” merely referenced the fact
that, if a lot had a principal building and one or more
accessory buildings, “parts,” as opposed to a “part,” of
the lot would be occupied by buildings.
This interpretation of the 1941 Ordinance is
consistent with the interpretation given to it by officials
charged with its enforcement. At the BZA hearing, it was
pointed out that such officials had “consistently allowed
one dwelling unit per lot or building site under the
Ordinance since [19]41.” Furthermore, a member of the BZA
who had worked in Fairfax County under the 1941 Ordinance
stated, “I know of no circumstance at all where legally two
structures, residential, two units, residential units, were
permitted on one lot.” “A consistent administrative
construction of an ordinance by the officials charges with
its enforcement is entitled to great weight.” Masterson,
20
233 Va. at 44, 353 S.E.2d at 733; accord Board of
Supervisors v. Robertson, 266 Va. 525, 538, 587 S.E.2d 570,
578 (2003).
Finally, we point out that the only evidence offered
by the McCarthys to show that the garage apartment is a
lawful nonconforming use was the testimony of the original
landowner’s daughter. But, she merely opined that the
garage apartment was built in accordance with the 1941
Ordinance. Neither she nor the McCarthys presented any
facts or documents to substantiate that opinion. That
evidence alone was not sufficient to carry the McCarthys’
burden of persuading the fact-finder that the garage
apartment was permitted under the 1941 Ordinance and is now
a lawful nonconforming use. See Knowlton, 220 Va. at 574,
260 S.E.2d at 235.
Thus, we conclude that the BZA’s final decision was
“plainly wrong and in violation of the purpose and intent
of the zoning ordinance.” Masterson, 233 Va. at 44, 353
S.E.2d at 733; Alleghany Enterprises, Inc. v. Board of
Zoning Appeals of the City of Covington, 217 Va. 64, 67,
225 S.E.2d 383, 385 (1976). We will therefore reverse the
judgment of the circuit court.
III. CONCLUSION
21
For these reasons, we hold the 30-day period for
filing a petition for a writ of certiorari seeking review
of a final decision of a board of zoning appeals is a
statutory prerequisite or “condition[] of fact” that
enables a circuit court to exercise its authority to review
the final decision of a board of zoning appeals. Farant
Inv. Corp., 138 Va. 427-28, 122 S.E. at 144; see also
Nelson, 262 Va. at 284-85, 552 S.E.2d at 77. The filing
requirement is not an aspect of the circuit court’s subject
matter jurisdiction. Thus, the failure to file the
petition within the required 30 days is waived if not
timely raised during the proceedings. Since the County’s
failure to timely file its petition for a writ of
certiorari was first raised in this Court, the issue is
waived and we will not address it.5
Furthermore, since the 1941 Ordinance permitted only
one principal dwelling on a lot, the County has overcome
the presumption of correctness afforded the BZA’s final
decision. The BZA’s decision that the garage apartment is
a lawful nonconforming use was “plainly wrong and in
violation of the purpose and intent of the zoning
ordinance.” Masterson, 233 Va. at 44, 353 S.E.2d at 733.
5
In light of our decision, it is not necessary to
address the County’s argument that our decision in West
22
In reaching this conclusion, we are mindful of the
BZA’s expressed concern about displacing the garage
apartment after approximately 54 years of use. Equitable
concerns, however, cannot be a basis for the BZA’s decision
in this case. See Foster v. Geller, 248 Va. 563, 570, 449
S.E.2d 802, 807 (1994) (legislative bodies “have authorized
the use of equitable considerations only when the issue is
whether to grant a special use permit”).
For these reasons, we will reverse the judgment of the
circuit court and enter final judgment in favor of the
County.
Reversed and final judgment.
Lewinsville should be applied only prospectively.
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