Present: All the Justices
ADAMS OUTDOOR ADVERTISING, INC.
OPINION BY
v. Record No. 001386 CHIEF JUSTICE HARRY L. CARRICO
April 20, 2001
BOARD OF ZONING APPEALS OF
THE CITY OF VIRGINIA BEACH, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
This case involves a controversy over two billboards owned
by Adams Outdoor Advertising, Inc. (Adams), located on the same
site on Shore Drive in the City of Virginia Beach. The
billboards have been in use since their construction in 1967.
In 1987, the City Council of Virginia Beach amended the city
zoning ordinance (CZO) to provide in § 216(a) that "[n]o new
billboards shall be erected within the city limits, effective
immediately." Thereafter, all preexisting billboards, including
Adams' two Shore Drive billboards, were deemed nonconforming
signs subject to CZO § 215(a), which prohibited the repair of a
nonconforming sign "at a cost in excess of fifty (50) percent of
its original cost unless such sign is caused to comply with the
provisions of this ordinance" (the 50 percent rule).
On February 24, 1994, the City notified Adams by letter
that the Shore Drive billboards had been condemned and must be
removed because they were "in danger of falling and [were]
unsafe." Apparently, no further action was taken by the City
pursuant to the letter.
On February 6, 1997, Adams submitted applications to the
City for building permits to repair the billboards at a
combined total cost of $3,000.00, or $1,500.00 per billboard.
Adams stated in a letter to the City dated February 7, 1997,
that, based upon "the original costs in 1967 [of] at least
$6,280," the "requested repairs total $3,000 or less than 50% of
the original costs."
At the City's direction, Adams furnished plans for the
proposed repair work, including drawings showing the additional
work necessary to meet a building code requirement that "the
signs as repaired must be able to withstand a 100 m.p.h. wind
load.” The permits were then issued.
Adams completed the repairs in July 1997. In the following
December, the City's zoning administrator advised Adams that an
investigation revealed that the actual repair work performed on
the billboards cost more than the amount stated by Adams in its
application of February 6, 1997, in violation of the 50 percent
rule. The actual cost was $18,756.01, as opposed to the
proposed $3,000.00 figure. The zoning administrator told Adams
the billboards would have to be removed within thirty days.
On January 9, 1998, Adams appealed the zoning
administrator's decision to the City's board of zoning appeals
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(the BZA). After a hearing on May 6, 1998, the BZA denied the
appeal, upheld the zoning administrator's decision, and declared
the building permits void. On June 5, 1998, Adams filed a
Petition for Writ of Review with the trial court seeking
reversal of the BZA's decision. On June 8, 1998, the trial
court issued a writ of certiorari to review the BZA's decision.
On June 4, 1998, Adams applied to the BZA for a variance to
allow the repairs already made to the billboards. The zoning
administrator returned the application to Adams, stating that
under § 105(d) of the zoning ordinance, "requests involving the
enlargement, extension, reconstruction or structural alteration
of a non-conforming structure must be heard by City Council, not
the BZA." On December 2, 1998, the BZA reversed the zoning
administrator's determination that the City Council was the
appropriate body to consider whether to allow Adams' billboards
to remain. On December 29, 1998, the zoning administrator filed
a Petition for Writ of Certiorari with the trial court seeking
reversal of the BZA's decision of December 2. On December 30,
1998, the trial court issued a writ of certiorari to review the
BZA's decision.
On January 12, 1999, Adams wrote the City Attorney of
Virginia Beach stating that the billboards were governed by the
Federal Highway Beautification Act as well as the Virginia
statutes and regulations promulgated by the Commonwealth and its
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Transportation Commissioner pursuant to the federal act. Adams
stated further that the 50 percent rule was in conflict with and
preempted by the promulgated regulations and could not be
enforced, with the result that "the City must pay Adams just
compensation to require removal."
On January 13, 1999, Adams resubmitted its application to
the BZA for a variance to allow the nonconforming billboards to
be repaired in excess of 50 percent of the original cost. On
April 21, 1999, the BZA granted Adams a variance. On April 27,
1999, the zoning administrator filed a Petition for Writ of
Certiorari with the trial court seeking reversal of the BZA's
decision of April 21. On April 29, 1999, the trial court issued
a writ of certiorari to review the BZA's decision.
The trial court consolidated the three cases and heard them
on a stipulated record. After review of the evidence and
consideration of memoranda and arguments of counsel, the court
affirmed the BZA’s decision of May 6, 1998, which upheld the
zoning administrator's decision declaring the building permits
void and ordering the billboards removed. The court also
reversed the BZA’s decision of December 2, 1998, which reversed
the zoning administrator's determination that the BZA did not
have authority to hear an application for a variance from the 50
percent rule. Finally, the court vacated the BZA's decision of
April 21, 1999, which granted Adams a variance from the 50
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percent rule, on the ground that the court's finding that the
BZA did not have the authority to hear a variance from the 50
percent rule rendered moot the issue whether the BZA was correct
in granting the variance. We awarded Adams this appeal.
Adams first contends that the trial court "erred in its
ruling that the BZA lacked the authority to grant a variance."
Adams says that at issue in this case is "the interaction
between the sign ordinance adopted by the City of Virginia Beach
which provides for variances by its BZA to its regulations for
billboards (CZO § 215(c)) and the statutory authorization in the
Virginia Code for boards of zoning appeals to grant variances,
Va. Code §§ 15.2-2201 and 15.2-2309."
In pertinent part, Va. Code § 15.2-2201 defines a
"variance" in the context of a zoning ordinance as
a reasonable deviation from those provisions regulating the
size or area of a lot or parcel of land, or the size, area,
bulk or location of a building or structure when the strict
application of the ordinance would result in unnecessary or
unreasonable hardship to the property owner . . . .
In pertinent part, Va. Code § 15.2-2309(2) grants a board
of zoning appeals the power to authorize a variance as defined
in § 15.2-2201
where by reason of the exceptional narrowness, shallowness,
size or shape of a specific piece of property at the time
of the effective date of the ordinance, or where by reason
of exceptional topographic conditions or other
extraordinary situation or condition of the piece of
property, or of the condition, situation, or development of
property immediately adjacent thereto, the strict
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application of the terms of the ordinance would effectively
prohibit or unreasonably restrict the utilization of the
property or where the board is satisfied, upon the evidence
heard by it, that the granting of the variance will
alleviate a clearly demonstrable hardship approaching
confiscation . . . .
As noted previously, CZO § 215(a) contains the 50 percent
rule providing that "[n]o nonconforming sign shall be repaired
at a cost in excess of fifty (50) percent of its original cost
unless such sign is caused to comply with the provisions of this
ordinance." Section 215(a) also provides that
"[n]otwithstanding the provisions of section 105(f) of this
ordinance, no nonconforming sign shall be structurally altered,
enlarged, moved or replaced . . . unless such sign is brought
into compliance with the provisions of this ordinance." 1
Section 215(b) grants the zoning administrator the
discretion, with the concurrence of the director of planning, to
vary the requirements of this ordinance pertaining to the
allowed number of signs, total sign area, individual sign
area, number of freestanding signs and height of
freestanding signs in cases in which the owner of a sign or
other proper party desires to repair, replace, relocate or
structurally alter an existing nonconforming sign . . . .
Adams says this "narrow authority to the Zoning Administrator is
expanded to the outer limits of the ordinance by the next
subsection, CZO § 215(c)," which states:
1
Under CZO § 105(f), mentioned in the text, a nonconformity
involuntarily damaged or destroyed may be reconstructed or
restored within two years of being damaged or destroyed.
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Nothing in this section shall be construed to limit or
otherwise impair the right of any proper party to apply to
the board of zoning appeals for a variance from any of the
sign regulations set forth in this ordinance.
Sign regulations set forth in the ordinance include those
contained in CZO § 214(a) which provides, inter alia, that no
freestanding sign shall exceed 12 feet in height from ground
level, and those contained in § 216(c) which provides, inter
alia, that no billboard shall be located closer than 660 feet to
the right-of-way line of any interstate highway or expressway. 2
It is undisputed that the billboards cannot conform to the
height and setback requirements of CZO §§ 214(a) and 216(c).
In support of its contention that the BZA had the authority
to grant a variance from the 50 percent rule, Adams makes an
extensive argument that the rule is inextricably tied to the
height and setback requirements of the CZO. The substance of
the argument is contained in these passages from Adams' brief:
Those signs which cannot be caused to comply with [the
height and setback] requirements by relocation or otherwise
are limited in the cost of repairs. To grant a variance to
the cost of repairs limitation is identical to granting a
variance to the requirements of complying with the size and
setback restrictions . . . . A sign which does not have to
comply with the 50% Rule is one that can be made to comply
with the height and setback requirements. A variance to
that requirement is one that says the sign may be repaired
in excess of 50% of original cost even though it continues
to violate one or more of the height and setback rules.
One cannot be separated from the other.
2
It was stipulated that "[t]he Shore Drive Billboards face
and are located within 660 feet of the nearest edge of a right-
of-way which is part of the National Highway System."
7
Hence, contrary to the Circuit Court's conclusion, CZO
§ 215[, which contains the 50 percent rule,] is a provision
"regulating . . . the size, area, bulk or location of a
building or structure when the strict application would
result in unnecessary hardship to the property owner."
However, in holding that the BZA did not have the authority
to grant a variance from the 50 percent rule, the trial court
stated as follows:
[V]ariances exist to provide relief when the condition of
the land makes the application of regulations dealing with
size, area, bulk or location of a structure [result in
unreasonable or unnecessary hardship to the property
owner]. The regulation which Adams Outdoor violated and
from which it seeks relief does not relate to the bulk,
size, area or location of the structure. The ordinance
[provision] Adams Outdoor offended and for which it seeks
relief deals only with the costs expended on repairs of
non-conforming structures.
We agree with the trial court that Adams' request for
relief "deals only with the costs expended on repairs of non-
conforming structures" and not with the size, area, bulk, or
location of the structures. Indeed, that is precisely the
nature of the relief Adams' counsel told the BZA his client was
seeking. At the BZA hearing on Adams' appeal from the zoning
administrator’s determination that the City Council was the
appropriate body to consider whether Adams’ billboards should
remain, Adams’ counsel stated:
[T]he only issue is whether Adams spent too much on the
sign and whether, because of the misunderstanding between
the City and Adams [on] what could be done and what could
not be done and whether it would in fact be proper for a
variance. That's all that's before you.
8
Adams thus limited the scope of the BZA proceeding, and our
review will be similarly limited. See Foster v. Geller, 248 Va.
563, 567, 449 S.E.2d 802, 805 (1994) (review of the decision of
a BZA on petition for writ of certiorari limited to scope of the
BZA proceeding and reviewing court may only consider correctness
of the BZA's decision).
We also agree with the trial court that variances exist to
relieve property owners from unnecessary or unreasonable
hardship resulting from strict application of zoning provisions.
However, such relief is limited by Va. Code §§ 15.2-2201 and -
2309 to the granting of variances from “those provisions
regulating the size or area of a lot or parcel of land, or the
size, area, bulk or location of a building or structure." Both
of these Code sections are completely silent on the subject of
the cost of repairing nonconforming structures. Clearly,
therefore, state law does not confer upon BZAs the power to
grant a variance from ordinance provisions limiting the cost to
repair nonconforming structures.
But, Adams argues, CZO § 215(c) is sufficient alone to
confer upon the BZA the power to “grant a variance from any
provisions in the sign ordinance." Adams recites § 215(c) as
providing that "[n]othing in this section shall be construed to
limit or otherwise impair the right of any proper party to apply
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to the board of zoning appeals for a variance from any of the
sign regulations set forth in this ordinance." Adams says that
§ 215(c) gave it the right to apply for a variance from the 50
percent rule.
The trial court ruled that § 215(c) "is not a remedy
provision," that it "simply states the ordinance does not limit
any right to relief which a party may already have." We think
this ruling was correct. Furthermore, the court's ruling avoids
an interpretation of § 215(c) that would conflict with Va. Code
§§ 15.2-2201 and –2309. If, as has been noted, Adams does not
have a right to relief under those sections of the Virginia
Code, CZO § 215(c) could not legally be interpreted to provide
the right. The BZA “ ‘is a creature of statute possessing only
those powers expressly conferred upon it,’ ” Board of Zoning
Appeals v. University Square Assoc., 246 Va. 290, 294, 435
S.E.2d 385, 388 (1993) (quoting Lake George Corp. v. Standing,
211 Va. 733, 735, 180 S.E.2d 522, 523 (1971)), and the City may
not expand the BZA’s powers beyond those expressly conferred by
the General Assembly.
Adams next contends that the trial court "erred in
affirming the BZA's determination that the Zoning
Administrator's Order of removal without compensation was
proper." This contention mischaracterizes both the BZA's and
the trial court's action with respect to the issue of
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compensation. The BZA made no determination concerning
compensation at the hearing of May 6, 1998, at which the BZA
considered the zoning administrator's order of removal. Indeed,
the subject of compensation was not even mentioned in the
hearing or in the motion the BZA adopted to uphold the
determination of the zoning administrator.
Nor did the trial court affirm any BZA determination
concerning compensation. In a letter opinion, the trial judge
stated:
The Court will not determine the issue of whether
Adams Outdoor Advertising is entitled to just compensation
for the removal of the sign[s]. The writs of certiorari
were granted to review the decisions of the BZA. The
review of BZA decisions is limited to the correctness of
the BZA decision. See Foster v. Geller, 248 Va. 563, 567,
449 S.E.2d 802[, 805] (1994). The decision concerning
whether Adams Outdoor Advertising is entitled to just
compensation is outside the authority vested in the BZA.
Accordingly, the issue is not properly before the court at
this time.
The final order entered in the case states that "[t]he Court
declines to decide the issue of entitlement to just compensation
as that question is not properly before the Court."
We agree with the trial court. As noted previously, Va.
Code § 15.2-2309 prescribes the powers and duties of boards of
zoning appeals. The subject of entitlement to compensation for
the alleged taking of or damage to property as a result of
zoning actions is not among the powers enumerated. Furthermore,
as Foster v. Geller teaches: "The review of a decision of a BZA
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on a petition for writ of certiorari is limited to the scope of
the BZA proceeding. The reviewing court may only consider the
correctness of the BZA's decision." Id. at 567, 449 S.E.2d at
805.
Finding no error in the judgment of the trial court, we
will affirm the judgment.
Affirmed.
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Adams Outdoor Advertising, Inc. v. Board of Zoning Appeals
Court: Supreme Court of Virginia
Date filed: 2001-04-20
Citations: 544 S.E.2d 315, 261 Va. 407
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