Present: All the Justices
CITY OF EMPORIA
BOARD OF ZONING APPEALS
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 010027 January 11, 2002
WAYNE MANGUM
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
In this appeal, we consider whether a mobile home
constitutes a nonconforming use under the Code of Ordinances
of the City of Emporia and, if so, whether the owner of a
mobile home park may permit a tenant to replace a mobile home
that was destroyed.
The relevant facts necessary for our resolution of this
appeal have been stipulated by the litigants. Wayne Mangum is
the owner of a mobile home park located in the City of Emporia
(the City). The mobile home park existed before the City
adopted a zoning ordinance contained in the City's Code of
Ordinances (City Code).
Upon adoption of the City Code in 1975, the mobile home
park was deemed a nonconforming use. Mangum does not own, nor
has he ever owned, mobile homes located within his mobile home
park. Rather, he has leased space to tenants who own their
individual mobile home units. When a tenant removes a mobile
home from the park upon the expiration of a lease, Mangum
rents space to a new tenant who locates a mobile home unit in
the mobile home park.
A mobile home located in the park was destroyed by fire.
The City Manager of Emporia informed Mangum that he could not
permit a tenant to place another mobile home in the park as a
substitute for the mobile home that had been destroyed. The
City Manager stated in a letter to Mangum that each mobile
home in the mobile home park constituted a nonconforming use
pursuant to § 90-12 of the City Code and that a new mobile
home "may not be substituted upon damage to 50% of its value."
The City Manager also emphasized to Mangum the mobile home
park's status as a nonconforming use.
Mangum appealed the decision of the City Manager to the
Board of Zoning Appeals which approved the decision of the
City Manager, thereby barring Mangum from renting the space
previously occupied by the mobile home that had been destroyed
in the fire. Mangum filed a petition for writ of certiorari
in the circuit court and asserted that § 90-12 of the City
Code permitted him to continue his nonconforming use of his
mobile home park and that the City Code authorizes him to
replace mobile homes within the mobile home park. The circuit
court agreed with Mangum and entered an order that reversed
the decision of the Board of Zoning Appeals. The City
appeals.
2
The City argues that mobile home units are nonconforming
structures within the meaning of the City Code. Continuing,
the City asserts that Mangum is not entitled to replace a
mobile home in his mobile home park as a substitute for a
mobile home that was destroyed. Responding, Mangum argues
that pursuant to the City Code, he is entitled to replace
mobile homes in his park. 1 We disagree with Mangum.
Section 90-1 of the City Code contains the following
definitions which are pertinent to our resolution of this
appeal:
"Building means a structure having a roof
supported by columns or walls for the shelter,
support or enclosure of persons, animals or
chattels. When separated by division walls from the
ground up without openings, each portion of such
building shall be deemed a separate building. The
word 'building' also includes the words 'use' and
'structure.'
. . . .
"Manufactured home/mobile home means a
structure intended for human habitation that is
subject to federal regulation, is transportable in
one or more sections, is eight body feet or more in
width or 40 body feet or more in length, or when
erected is 320 or more square feet in area.
. . . .
"Nonconforming activity means the otherwise
legal use of a building or structure or of a tract
1
We find no merit in Mangum's argument that the City
failed to assert in the circuit court that the mobile homes
constitute nonconforming structures. The City raised this
issue in its motion to reconsider.
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of land that does not conform to the use regulations
of this chapter for the district in which it is
located, either as of April 4, 1975, or as a result
of subsequent amendments to this chapter.
. . . .
"Structure means anything constructed or
erected, which requires location on the ground, or
attached to something having location on the
ground."
Section 90-12 of the City Code states in relevant part:
"No nonconforming building or use shall be
enlarged, extended, reconstructed, substituted, or
structurally altered, except when required by law or
order, unless the use thereof is changed to a use
permitted in the district in which located . . . ."
The principles applicable to this appeal are well
established. "When an ordinance is plain and unambiguous,
there is no room for interpretation or construction; the plain
meaning and intent of the ordinance must be given it." Board
of Zoning Appeals v. 852 L.L.C., 257 Va. 485, 489, 514 S.E.2d
767, 769 (1999); accord Donovan v. Board of Zoning Appeals,
251 Va. 271, 274, 467 S.E.2d 808, 810 (1996); McClung v.
County of Henrico, 200 Va. 870, 875, 108 S.E.2d 513, 516
(1959). Additionally, the decision of a board of zoning
appeals is presumed to be correct on appeal to the circuit
court, and the appealing party has the burden of showing that
the board applied erroneous principles of law or that the
board's decision was plainly wrong and in violation of the
purpose and intent of the zoning ordinance. Higgs v.
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Kirkbride, 258 Va. 567, 573, 522 S.E.2d 861, 864 (1999); 852
L.L.C., 257 Va. at 489, 514 S.E.2d at 770; Masterson v. Board
of Zoning Appeals, 233 Va. 37, 44, 353 S.E.2d 727, 732-33
(1987).
Applying the language in § 90-12 of the City Code, it is
clear, by definition, that the mobile homes situated in
Mangum's mobile home park are structures. Each mobile home is
a structure within the definitions of the words "building,"
"mobile home," and "structure," contained in the City Code.
Thus, in accord with the City Code's definition of
"nonconforming activity," each mobile home located within the
mobile home park became a nonconforming use after April 4,
1975, the effective date of the City Code.
We hold that the circuit court erred by ruling that a
mobile home, once destroyed, could be replaced by another
mobile home. The plain language in § 90-12 of the City Code
prohibits the substitution of a nonconforming building except
under certain prescribed conditions, which are not present in
this proceeding. And, pursuant to the definitions found in
§ 90-1 of the City Code, a mobile home is a building.
We also note that this holding is consistent with our
decision in City of Chesapeake v. Gardner Enterprises, 253 Va.
243, 482 S.E.2d 812 (1997). There, the City of Chesapeake
adopted a comprehensive amendment to its zoning ordinance that
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prohibited the owner of property from constructing additional
buildings or structures to support the nonconforming use on a
site. The operator of a cemetery requested a building permit
for the construction of an additional mausoleum on the
cemetery property. The cemetery was a nonconforming use. The
zoning administrator denied the application because the
ordinance expressly prohibited the construction of new
buildings or structures to support nonconforming uses. The
Board of Zoning Appeals approved the administrator's decision.
Id. at 245, 482 S.E.2d at 813-14. We held that Code § 15.1-
492, 2 which permitted local governments to limit a
nonconforming land use, or a nonconforming building or
structure, to its existing use or to a more restricted use,
implicitly granted local governments the authority to regulate
2
Former Code § 15.1-492 stated: "Nothing in this article
shall be construed to authorize the impairment of any vested
right, except that a zoning ordinance may provide that land,
buildings, and structures and the uses thereof which do not
conform to the zoning prescribed for the district in which
they are situated may be continued only so long as the then
existing or a more restricted use continues and such use is
not discontinued for more than two years, and so long as the
buildings or structures are maintained in their then
structural condition; and that the uses of such buildings or
structures shall conform to such regulations whenever they are
enlarged, extended, reconstructed or structurally altered and
may further provide that no 'nonconforming' building or
structure may be moved on the same lot or to any other lot
which is not properly zoned to permit such 'nonconforming'
use." This statute has been amended and is currently Code
§ 15.2-2307. The amendments, however, do not affect our
decision in Gardner Enterprises.
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new construction. Id. at 248, 482 S.E.2d at 815. We conclude
that the rationale that we applied in Gardner Enterprises is
equally applicable here. Just as the City of Chesapeake had
the authority to enact a zoning ordinance prohibiting a
cemetery operation from constructing a new mausoleum, the City
of Emporia has the authority to enact a zoning ordinance that
prohibits an owner of a mobile home park from allowing a
renter to replace a nonconforming structure that was
destroyed.
We also note, as we stated in Gardner Enterprises, that
"[n]onconforming uses are not favored in the law because they
detract from the effectiveness of a comprehensive zoning
plan." Id.
Mangum argues that the City has impaired his vested
rights to use his property and that the City violated his
rights of due process. We do not consider these arguments.
We have held that
"a board of zoning appeals 'is a creature of statute
possessing only those powers expressly conferred
upon it.' Lake George Corp. v. Standing, 211 Va.
733, 735, 180 S.E.2d 522, 523 (1971). Code § 15.1-
497[ 3 ] provides that '[u]pon the presentation of [a]
3
Former Code § 15.1-497 stated in relevant part:
"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
county or municipality, may present to the circuit court of
the county or city a petition specifying the grounds on which
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petition, the court shall allow a writ of certiorari
to review the decision of the board of zoning
appeals.' . . . [T]his expressly limited standard of
review [of] the certiorari process does not
authorize a trial court to rule on the validity or
constitutionality of legislation underlying a board
of zoning appeals decision."
Board of Zoning Appeals v. University Sq. Assoc., 246 Va. 290,
294, 435 S.E.2d 385, 388 (1993).
Mangum's remaining arguments are without merit.
Accordingly, we will reverse the judgment of the circuit court
and enter final judgment in favor of the City.
Reversed and final judgment.
aggrieved within thirty days after the filing of the decision
in the office 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
realtor's attorney, which shall not be less than ten 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." This statute, which
has been amended, is now Code § 15.2-2314.
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