Town of Front Royal v. Martin Media

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The 1978 zoning ordinance superseded a prior zoning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superseded in 1965.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.

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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.

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 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

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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

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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

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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

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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

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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,

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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.
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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

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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

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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.

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