Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ.
TOWN OF FRONT ROYAL, ET AL.
OPINION BY
v. Record No. 001010 JUSTICE LAWRENCE L. KOONTZ, JR.
March 2, 2001
MARTIN MEDIA
FROM THE CIRCUIT COURT OF WARREN COUNTY
John E. Wetsel, Jr., Judge
This appeal arises out of a landowner’s petition, filed in
the trial court, for a writ of certiorari to review a decision
by a local board of zoning appeals and the concurrent motion of
the locality for declaratory judgment and injunctive relief,
filed in the same court, against the landowner. The trial court
consolidated the cases, and subsequently entered judgment for
the landowner. We awarded an appeal to the locality and
accepted assignments of cross-error raised by the landowner.
BACKGROUND
The parties stipulated to the material facts that form the
basis of the trial court’s recitation of findings in its final
order. At issue is a two-sided wooden billboard on a parcel of
land owned by Martin Media in the Town of Front Royal (the
Town). Although the precise date of the billboard’s
construction is unknown, an examination of aerial photographs of
the Town reveals that the billboard was constructed sometime
between 1951 and 1966.
Section 16.3 of the 1951 Town Code permitted billboards to
be constructed on appropriately zoned parcels “[w]hen not
exceeding fourteen feet in height above curb level, with a clear
space of not less than three feet between the bottom of the
. . . billboard and the ground.” Martin Media’s billboard is
approximately twenty-four feet in height. Although there is no
evidence that the Town granted a variance for the billboard to
exceed the height restriction of the 1951 Town Code, the Town
concedes that its “records as to zoning variances and sign
permits are incomplete.”
In 1978, the Town adopted the current zoning ordinance
prohibiting the construction of any billboards in the Town. 1
This ordinance contains several “grandfathering clauses”
implicated by the issues raised in this appeal. Section 601,
addressing nonconforming uses, provides that “[i]f at the time
of enactment of this Ordinance, any . . . structure legally
utilized in a manner or for a purpose which does not conform to
1
The 1978 zoning ordinance superseded a prior zoning
ordinance adopted in 1970. Similarly, the 1951 Town Code was
superseded in 1965. Neither party contends that provisions of
these interim zoning ordinances are relevant to the issues
raised in this appeal. Rather, the parties agree that, at the
time of the billboard’s construction, billboards of not more
than fourteen feet in height were permitted to be constructed on
properly zoned property within the Town, and that at some point
in time thereafter billboards, regardless of height, were no
longer permitted to be constructed within the Town.
2
the provisions of this Ordinance, such manner of use or purpose
may be continued as herein provided.” Section 606 provides that
“[l]awful uses of land, which at the effective date of this
Ordinance . . . become non-conforming, may be continued by the
present or any subsequent owner so long as it remains otherwise
lawful.” Section 607 provides that structures which “become
non-conforming by reason of restrictions on . . . height . . .
may continue to be used so long as such structure . . . remains
otherwise lawful.” A further provision of the 1978 zoning
ordinance repeals all prior inconsistent ordinances.
In March 1998, Martin Media, which had obtained the
necessary permits to do so, removed old light fixtures extending
perpendicularly from the top of the billboard and replaced them
with new light fixtures extending in the same manner from the
bottom of the billboard. The installation of the new light
fixtures was approved by the Town’s inspection office. However,
on July 2, 1998, the Town’s zoning administrator advised Martin
Media that as a result of the installation of the new light
fixtures, the billboard violates the 1978 zoning ordinance. The
zoning administrator concluded that the billboard is
nonconforming because the new light fixtures extend into the
public right-of-way adjoining Martin Media’s property. The
zoning administrator directed Martin Media to remove the new
light fixtures by August 3, 1998.
3
Martin Media filed an appeal to the Town’s board of zoning
appeals, challenging the zoning administrator’s interpretation
of the zoning ordinance and his directive to remove the new
light fixtures. Martin Media contended that the replacement of
the old light fixtures was a permissible repair of the
billboard. At its September 21, 1998 meeting, the board of
zoning appeals denied the appeal on the ground that there was
insufficient evidence that the old light fixtures also had
projected into the public right-of-way, as Martin Media
maintained. The board also noted that it appeared that the old
light fixtures had been non-functional for a sufficient period
of time to constitute abandonment by Martin Media of its use of
the billboard as a lighted sign. On October 21, 1998, Martin
Media filed a petition for writ of certiorari in the trial
court, seeking a review of the decision of the board of zoning
appeals.
On October 28, 1998, the Town filed a motion for
declaratory judgment and injunctive relief, seeking a
declaration that the billboard is an unlawful nonconforming use
and an injunction requiring Martin Media to remove the billboard
for that reason. The Town contended that the billboard has
never been a lawful use because when it was constructed it
exceeded the height restriction for billboards in the then
applicable Town Code. Thus, the Town further contended that the
4
billboard is not entitled to the protection of the
grandfathering clauses of the 1978 zoning ordinance as a lawful
nonconforming use.
The cases were consolidated, the parties stipulated to the
material facts as recited above, and the trial court conducted a
hearing in both cases on February 16, 2000. In its opinion and
final order entered on February 22, 2000, the trial court noted
that it was Martin Media’s burden to prove that its billboard
was a lawful nonconforming use of the property. The trial court
further noted that when the billboard was initially constructed,
the 1951 Town Code permitted the construction of billboards, but
limited their height to fourteen feet above curb level.
Accordingly, the trial court concluded that, because no evidence
established that a variance was ever granted by the Town to
permit the twenty-four foot height of this billboard, “it was
not a conforming structure, but it was a permitted use” at that
time. The trial court further concluded that under the 1978
zoning ordinance a billboard is a structure under the
ordinance’s definition of “Structure, Outdoor Advertising.”
Having concluded that the billboard was a “permitted use” when
initially constructed, the trial court determined that this use
was subject to the grandfathering clauses of the 1978 zoning
ordinance. Upon those conclusions, the trial court ruled that
“the encroachment onto the state’s right of way by the overhang
5
of [Martin Media’s light fixtures] is an incidental use of
property incident to the grandfathered use, and it may continue
as a nonconforming use.” Accordingly, the trial court reversed
the decision of the board of zoning appeals requiring Martin
Media to remove the new light fixtures from the billboard.
With regard to the Town’s declaratory judgment action, the
trial court determined that the Town’s effort to have the
billboard declared an unlawful nonconforming use is an improper
effort to enforce the 1951 Town Code. The trial court reasoned
that although the billboard, when originally constructed,
exceeded the fourteen foot height restriction of that Code,
“[t]he Town’s right to prosecute violations of the 1951 Code was
lost when that Code was superseded by the Town’s subsequent
zoning ordinances.” The trial court further reasoned that the
continued lawfulness of the billboard is governed by the
provisions of the 1978 zoning ordinance under which it became
grandfathered because it was a lawful nonconforming use when
that ordinance was enacted. Accordingly, the trial court denied
the Town’s motion for an injunction requiring Martin Media to
remove the billboard.
The Town noted an appeal, assigning error essentially to
the trial court’s ruling that the billboard is a lawful
nonconforming use and, thus, subject to the grandfathering
clauses of the 1978 zoning ordinance, and, if that ruling is not
6
in error, to the further ruling that the installation of the new
light fixtures is a proper incidental use of the billboard.
Martin Media assigned cross-error, Rule 5:18(b), essentially
challenging the trial court’s determination that it has the
burden of proving a lawful nonconforming use of its billboard,
that the billboard is not subject to a variance, and that the
billboard constitutes a “structure” under the 1978 zoning
ordinance.
DISCUSSION
Notwithstanding the various assignments of error, it is
readily apparent that the dispositive issue raised by this
appeal is whether the trial court erred in ruling that although
Martin Media’s billboard was a nonconforming use when originally
constructed, because billboards in excess of fourteen feet in
height were prohibited, it became a lawful nonconforming use
when the 1978 zoning ordinance prohibited the construction of
all billboards regardless of height. However, to reach that
issue, we must first address the cross-error raised by Martin
Media contending that, given the parties’ stipulations, the
trial court erred in ruling that Martin Media has the burden of
proving that its billboard was a lawful use prior to the
enactment of the 1978 zoning ordinance’s ban on the construction
of any billboards within the Town. Martin Media maintains that,
if this contention is correct, then the Town failed to meet its
7
burden to prove that the billboard is a nonconforming use of its
land, ending the inquiry into whether the Town may enforce the
current prohibition of the 1978 zoning ordinance against Martin
Media’s previously existing billboard.
It is the settled law of this Commonwealth that for a prior
use of land which violates a newly enacted zoning restriction to
be considered a lawful nonconforming use, the use must have been
“a lawful use existing on the effective date of the zoning
restriction.” Knowlton v. Browning-Ferris Industries of
Virginia, Inc., 220 Va. 571, 572 n.1, 260 S.E.2d 232, 234 n.1
(1979); C. & C. Inc. v. Semple, 207 Va. 438, 439 n.1, 150 S.E.2d
536, 537 n.1 (1966) (both quoting 2 E. C. Yokley, Zoning Law and
Practice § 16-2, at 212 (3rd ed. 1965))(emphasis added in
Knowlton). Martin Media acknowledges that in Knowlton we held
that “in civil cases . . . the land user has both the burden of
initially producing evidence tending to prove a lawful
nonconforming use and the burden of persuading the factfinder.”
220 Va. at 574, 260 S.E.2d at 235. Martin Media contends,
however, that because the parties stipulated that the Town’s
records of variances granted prior to 1978 are “incomplete,” the
Town is unable to establish “that [the land user’s] use of [its]
land is not a permitted use” under the current zoning ordinance
as a necessary prerequisite to requiring Martin Media to produce
8
evidence to show that the use of its land, though nonconforming,
is otherwise lawful. Id. We disagree.
Martin Media is correct that the party challenging a use of
land, in this case the Town, “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 of the City of Virginia Beach, 233 Va. 37, 47, 353
S.E.2d 727, 734 (1987). However, we have never held that this
burden extended beyond establishing that a current zoning
restriction on the land prohibits the use in question. Id.
Here, it is not disputed that under the current zoning
ordinance, Martin Media’s use of its land for the billboard in
question is prohibited and, accordingly, it became Martin
Media’s burden to show that this use is a lawful nonconforming
use.
Nor are we persuaded by Martin Media’s further contention
that it should not be required “to locate and produce records
that validate its use where such records have been lost,
destroyed or are otherwise incomplete.” The evidence does not
disclose why the Town’s records are incomplete. However, it is
self-evident that the landowner, not the locality, is in the
better position to know “about the nature and extent of the use
of the land,” Knowlton, 220 Va. at 574, 260 S.E.2d at 236, and,
9
thus, it is the landowner who must bear the primary
responsibility for ensuring that the use of the land is
permitted under the law. While we may assume that a locality
will make every effort to maintain accurate and complete records
regarding variances granted to landowners, there is obviously an
equal, if not greater responsibility on the individual
landowner, who generally originates a request for a variance, to
maintain his own records with respect to granted variances for
the use of his land. The failure of the locality to have
complete records will not remove the landowner’s burden to
produce his own records showing that he, or his predecessor in
interest, obtained a necessary variance for a nonconforming use
of his land. Accordingly, we hold that the trial court did not
err in placing the burden on Martin Media to establish that its
billboard was a lawful nonconforming use of its land. 2
We now turn to the trial court’s ruling that the 1978
zoning ordinance’s ban on the construction of billboards within
the Town acted as a de facto repeal of the height restriction on
billboards in the 1951 Town Code and, thus, eliminated the
Town’s ability to enforce that restriction against previously
2
Similarly, we reject Martin Media’s contention that the
trial court erred in finding that no variance had been granted
for the billboard. Martin Media produced no evidence on this
point and was not entitled to any presumption in favor of
finding that a variance had been granted.
10
nonconforming billboards. In that regard, the issue is not
whether the billboard in question is subject to an enforcement
of the 1951 Town Code. Clearly it is not, because that Code is
no longer in effect. Rather, the issue is whether Martin
Media’s billboard is presently a lawful use under the 1978
zoning ordinance. Specifically, because the 1978 zoning
ordinance prohibits all billboards within the Town, Martin
Media’s billboard is a lawful use only if it is subject to a
grandfathering provision of that ordinance.
The record is clear that at the time of its construction
Martin Media’s billboard was not lawful because it exceeded the
height restriction placed on that type of structure by the 1951
Town Code, and there is no evidence that a variance was granted
permitting this billboard to exceed that height restriction.
Martin Media’s argument, which the trial court appeared to
accept, that there is a distinction between billboards as a
lawful category of use and individual billboards which violate a
height restriction placed on that category of use is without
merit. Either a particular use is permitted under the
applicable zoning restriction or it is not. Here, the only
conclusion permitted by the evidence is that at the time of its
construction and at all times thereafter prior to the effective
date of the 1978 zoning ordinance, Martin Media’s twenty-four
11
foot high billboard was not a lawful use of the land on which it
was constructed.
Accordingly, the grandfathering provision of Section 606 of
the 1978 zoning ordinance has no application to Martin Media’s
billboard because the billboard was not a “[l]awful use[] of
land, which at the effective date of [the] Ordinance . . .
[became] non-conforming.” Rather, the use was already
unlawfully nonconforming prior to the enactment of the 1978
zoning ordinance and continues to be so.
Similarly, Section 607 has no application to the facts of
this case because Martin Media’s billboard did not become
nonconforming as a result of a restriction on its height in the
1978 zoning ordinance, but was nonconforming when constructed
because of the height restriction existing at that time. It is
of no moment that the 1978 zoning ordinance may have effectively
repealed that restriction by banning all billboards regardless
of height. The undeniable fact, based upon the record, remains
that this twenty-four foot high billboard was from its inception
an unlawful use of Martin Media’s land and that no variance to
permit that use has been proven to exist.
We hold that the trial court erred in ruling that Martin
Media’s billboard is a lawful nonconforming use of land under
the 1978 zoning ordinance and that the Town is not entitled to
the injunctive relief it seeks. Accordingly, the Town may
12
require Martin Media to remove the billboard. This being the
case, we need not consider the remaining assignments of error
and cross-error related to the collateral issues whether the new
light fixtures are a proper incidental use of the billboard and
whether the billboard remains a “structure” for purposes of
applying the 1978 zoning ordinance.
CONCLUSION
For these reasons, the judgment of the trial court will be
reversed and the case remanded for entry of appropriate
injunctive relief directing Martin Media to remove the unlawful
billboard from its property.
Reversed and remanded.
13