Present: All the Justices
EDWARD DONOVAN, ET AL.
v. Record No. 951196 OPINION BY JUSTICE ELIZABETH B. LACY
March 1, 1996
BOARD OF ZONING APPEALS OF
ROCKINGHAM COUNTY, ET AL.
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Joshua L. Robinson, Judge Designate
In this appeal we consider whether the trial court
properly upheld a decision by the board of zoning appeals
affirming the zoning administrator's interpretation and
application of a zoning ordinance.
Rockingham County enacted its first zoning ordinance in
1969. At that time, property currently owned by appellants,
Edward, Jean, Brownie, and David Donovan, Jr., (collectively,
the Donovans) and used by them as an automobile graveyard, was
zoned A-1, agricultural. Automobile graveyards were not a
permitted use in an A-1 district; however, the 1969 ordinance
allowed the continuation of nonconforming uses which were in
existence on the effective date of the ordinance. The use of
the Donovans' parcel as an automobile graveyard has continued
without interruption.
In 1994, the zoning administrator of Rockingham County
notified the Donovans by letter that they were in violation of
the Rockingham County Code (hereafter, County Code). According
to the zoning administrator, the 1969 ordinance required the
Donovans to file for an "automobile graveyard permit with a
1
screening plan" by 1972 and failure to file for the permit
terminated the right to continue the nonconforming use granted
by the 1969 ordinance. Because the Donovans had not filed for
such a permit, Rockingham County did not consider the Donovans'
present operation to be valid nonconforming use. The zoning
administrator informed the Donovans that they could validate
the operation of their automobile graveyard by obtaining a
special use permit and an automobile graveyard permit with a
screening plan. 1
The Donovans appealed the decision of the zoning
administrator to the Board of Zoning Appeals (BZA). 2 Following
a hearing, the BZA upheld the zoning administrator's decision
and refused to consider whether that interpretation of the
ordinance resulted in a conflict between the ordinance and Code
§ 15.1-492. The Donovans filed a petition for writ of
certiorari in the circuit court. The Donovans argued that the
zoning administrator and the BZA incorrectly applied and
interpreted the 1969 ordinance, and failed to consider the
Donovan's contention that such an interpretation conflicted
1
The current zoning classification for the Donovans'
property, A-2, permits the operation of an automobile graveyard
with a special use permit. County Code § 17-27. Chapter 5 of
the County Code, enacted in 1973 pursuant to Code § 15.1-28,
regulates automobile graveyards and includes the current
screening requirements. County Code § 5-2.
2
The Donovans also filed a screening plan under County
Code § 5-2, but the county has deferred action on the plan
pending the outcome of this litigation.
2
with their vested rights established by the Virginia
Constitution and Code § 15.1-492.
The circuit court found that the 1969 ordinance as
interpreted by the zoning administrator applied to the
Donovans' property and dismissed the writ of certiorari. In
its order, the circuit court stated that the determination of
whether a zoning ordinance conflicts with a statute is beyond
the court's jurisdiction in a certiorari proceeding because it
involves the validity of the ordinance, and that the effect of
the court's holding was "to affirm the decision of the Board of
Zoning Appeals of Rockingham County." We awarded the Donovans
an appeal and, because we conclude that the zoning
administrator's interpretation of the 1969 zoning ordinance was
incorrect, we will reverse the order of the circuit court.
The principles relevant to the construction of a zoning
ordinance are well established. The words of the ordinance are
to be given their plain and natural meaning. McClung v. County
of Henrico, 200 Va. 870, 875, 108 S.E.2d 513, 516 (1959). The
purpose and intent of the ordinance should be considered but
the ordinance should not be extended by interpretation or
construction beyond its intended purpose. Gough v. Shaner, 197
Va. 572, 575, 90 S.E.2d 171, 174 (1955). In reviewing a
decision of the BZA, we give "great weight" to the
interpretation of the ordinance by those officials charged with
its administration, and we will reverse the decision only if it
3
is plainly wrong or based on erroneous legal principles. Cook
v. Board of Zoning Appeals of the City of Falls Church, 244 Va.
107, 111, 418 S.E.2d 879, 881 (1992); Masterson v. Board of
Zoning Appeals of the City of Virginia Beach, 233 Va. 37, 44,
353 S.E.2d 727, 732-33 (1987).
The county does not contest the Donovans' assertion that
their operation of the automobile graveyard was a valid
nonconforming use following the adoption of the 1969 zoning
ordinance. The county maintains, however, that the Donovans'
automobile graveyard lost its status as a valid nonconforming
use because they failed to screen the operation from public
view by 1972. Thus, at the time of the county's enforcement
action, although the cross-references to sections dealing with
automobile graveyards had been deleted in 1984, the Donovans'
automobile graveyard no longer was "a lawful use of land"
entitling them to continue the operation as a nonconforming use
under the provisions of the current zoning ordinance, County
Code § 17-161.
The county's position is based on its application of the
following portions of the 1969 ordinance:
ARTICLE 8--NONCONFORMING USES
. . .
8-1-1. If at the time of enactment of
this ordinance, any legal
activity, except those dealt with
in section 7-2-5, which is being
pursued, or any lot or structure
legally utilized in a manner or
for a purpose which does not
4
conform to the provisions of this
ordinance, such manner of use or
purpose may be continued as
herein provided . . . .
. . . .
ARTICLE 7--INDUSTRIAL, GENERAL,
DISTRICT M-1
. . . .
7-2-5. Automobile graveyards and
junkyards in existence at the
time [of] the adoption of this
ordinance are to be considered as
nonconforming uses. They may be
allowed up to three (3) years
after adoption of this ordinance
in which to completely screen on
any side open to view from a
public road . . . .
The county contends that even though Chapter 7 relates to
M-1 districts, the reference in County Code § 8-1-1 to § 7-2-5
extends the screening requirements of that section to all
automobile graveyards existing in 1969. Any other
interpretation, the county asserts, would allow automobile
graveyards in districts other than M-1 to remain unscreened, a
condition inconsistent with the purpose of the ordinance.
We agree with the county's assertion that one of the
purposes of the 1969 zoning ordinance was to require screening
of all automobile graveyards, and we will assume, without
deciding, that County Code § 8-1-1 made the screening
provisions of County Code § 7-2-5 applicable to all automobile
graveyards existing on the effective date of the ordinance.
Nevertheless, a provision requiring that a particular
5
nonconforming use be screened from public view is not the same
as a provision invalidating the nonconforming use itself for
failure to comply with the screening requirement.
The ordinance identifies certain circumstances which
result in the termination of a valid nonconforming use: if the
use is discontinued for more than two years after the enactment
of the ordinance, it is deemed abandoned, County Code § 8-1-3;
if the use is changed to a more limited use, the prior, more
expansive use is lost, County Code § 8-1-4; and after two years
advertising structures must be relocated to districts where
they are permitted uses, County Code § 8-1-1. The failure to
screen an automobile graveyard is not identified as a
circumstance which terminates the status of the use as a valid
nonconforming use, nor is termination of such status listed as
the penalty for violation of or failure to conform to the
screening provisions contained in the 1969 zoning ordinance.
The ordinance is silent as to any specific consequences of
the failure to screen. The absence of a specific consequence
does not render the requirement meaningless, however. County
Code § 11-2 states that a violation of the ordinance is a
misdemeanor which subjects the violator to a fine of up to $250
for each day the ordinance is violated. Furthermore, under the
authority of Code §§ 15.1-491 and -499, the county could have
enforced the screening requirement by seeking an injunction to
prevent the Donovans from operating the automobile graveyard
6
until they complied with the screening requirement. McNair v.
Clatterbuck, 212 Va. 532, 533, 186 S.E.2d 45, 46 (1972). 3
Enforcement of the screening requirement by injunction would be
consistent with the purpose of screening all automobile
graveyards from public view without terminating a valid
nonconforming use arising under County Code § 8-1-1.
Applying the principles applicable to the construction of
zoning ordinances, we conclude that the interpretation of the
1969 zoning ordinance by the zoning administrator as approved
by the BZA was plainly wrong and based on erroneous principles
of law. Nothing in the ordinance provides that the failure to
screen an automobile graveyard terminates a valid nonconforming
use. Therefore, the failure of the Donovans to screen their
automobile graveyard within three years of the effective date
of the 1969 ordinance did not terminate the status of their
4
operation as a valid nonconforming use.
Accordingly, we will reverse the order of the circuit
court and enter final judgment in favor of the Donovans.
Reversed and
final judgment.
3
The zoning ordinance was amended in 1984 to specifically
give the zoning administrator the authority to insure
compliance with the chapter by instituting legal action
including injunctions. County Code § 17-200.
4
In light of this conclusion, we need not address the
Donovans' other arguments.
7