Board of Supervisors v. BOARD OF ZONING

Present: All the Justices

BOARD OF SUPERVISORS OF FAIRFAX
COUNTY, ET AL.

v. Record No. 051269 OPINION BY JUSTICE CYNTHIA D. KINSER
March 3, 2006
BOARD OF ZONING APPEALS OF FAIRFAX
COUNTY, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge

The primary issue in this appeal concerns the

timeliness of a petition for a writ of certiorari filed by

the Fairfax County Board of Supervisors (the Supervisors)

and the Fairfax County Zoning Administrator (the Zoning

Administrator) (collectively the County), seeking review of

a final decision of the Fairfax County Board of Zoning

Appeals (the BZA). Because the 30-day filing requirement

set forth in Code § 15.2-2314 is not an aspect of the

circuit court’s subject matter jurisdiction to hear the

appeal, the County’s failure to timely file its petition

for a writ of certiorari cannot be raised for the first

time before this Court.

This appeal also involves the interpretation of a 1941

zoning ordinance and whether a garage apartment built over

50 years ago presently qualifies as a lawful nonconforming

use. Because the relevant zoning ordinance permitted only
one principal dwelling on a single lot, we will reverse the

judgment of the circuit court.

I. RELEVANT FACTS AND PROCEEDINGS

Donald J. and Jaki S. McCarthy (the McCarthys) own

approximately 1.475 acres of real estate located in Fairfax

County. The property is currently situated in a

residential zoning district known as R-1, meaning that

there cannot be more than one dwelling unit on any one lot

nor can “a dwelling unit be located on the same lot with

any other principal building.” Fairfax County Zoning

Ordinance (Zoning Ordinance) § 2.501. The property is

developed with a single-family dwelling, built in 1945, and

a two-story detached garage that contains an apartment on

the second floor. The garage apartment was constructed in

1950.

On February 5, 2004, a zoning inspector informed the

McCarthys that the existence of the garage apartment

violated Zoning Ordinance § 2.501.1 The McCarthys appealed

the violation notice to the BZA. They claimed that the

garage apartment was a qualified nonconforming use on the

basis that it was lawfully established under the 1941

Fairfax County Zoning Ordinance (1941 Ordinance).

2
 In 1941, the subject property was zoned as

agricultural. In the “Agricultural District,” permitted

uses included any use that was allowed in the “Rural

Residence District.” 1941 Ordinance § III(A)(2).

Permitted uses in the Rural Residence District included a

“[s]ingle family detached dwelling” and a “[p]rivate garage

which shall not be used to house more than two vehicles in

excess of those used by the residents of the premises on

which the garage is located.” Id. at §§ IV(A)(1),

IV(A)(7). The term “single-family dwelling” was defined as

“[a] dwelling constructed to accommodate only one family,

and containing only one housekeeping unit.” Id. at § I(6).

The 1941 Ordinance defined the term “garage” as “[a]

building used for the housing or storing of motor driven

vehicles” and listed it as an example of an “accessory

building” in the definition provided for that term. Id. at

§§ I(1), I(9). No structure in the agricultural district

could be erected “on a lot or building site containing an

area of less than one-half . . . acre.” Id. at

§ III(C)(1).

At a public hearing before the BZA held on May 25,

2004, the McCarthys argued that there was nothing in the

1
The zoning inspector advised the McCarthys of other
violations of the Zoning Ordinance, but those alleged

3
1941 Ordinance prohibiting “a property from having two

dwelling units.” They presented testimony from the

daughter of the original owner of the subject property.

She stated that the “apartment was built with the specific

intended use as a dwelling. . . . The apartment was built

in accordance with the Zoning Ordinance in effect at that

time. It has been continually operated as a rental

apartment ever since.”

After hearing the evidence, the BZA agreed with the

McCarthys and voted to overturn the decision of the Zoning

Administrator. One member of the BZA noted that the

language in the 1941 Ordinance was ambiguous. Another

member stated, “it sounds to me like, as long you [sic] had

enough room, a half-acre per structure, you could still do

a structure on something other than a lot.” Since the 1941

Ordinance specifically said “one or more,” the member

reasoned that the second dwelling would have been allowed.

The perceived ambiguity in the 1941 Ordinance, coupled with

the fact that the garage apartment had been continually

used since it was built, led the BZA to find in favor of

the McCarthys.

In a letter to the McCarthys, the BZA confirmed its

May 25, 2004 action but advised the McCarthys that the date

violations are not before us in this appeal.

4
of the BZA’s final decision was June 2, 2004. On July 1,

2004, the County petitioned the circuit court, pursuant to

Code § 15.2-2314, for a writ of certiorari to review the

BZA’s decision. The circuit court granted the writ and

ordered the BZA “to make a verified return of its record.”

The circuit court subsequently heard the appeal and

affirmed the decision of the BZA. The court concluded that

the BZA had not “applied erroneous principles of law [or]

that its decision was plainly wrong.”

The County appealed from the circuit court’s judgment

to this Court. In the opening brief, the County admits

that, under the Court’s decision in West Lewinsville

Heights Ass’n v. Board of Supervisors, 270 Va. 259, 618

S.E.2d 311 (2005), its petition for a writ of certiorari

seeking review of the BZA’s final decision was not timely

filed. The County, however, argues the timeliness of the

petition for a writ of certiorari cannot be raised for the

first time before this Court. The BZA did not participate

in the proceedings before the circuit court, nor did the

McCarthys question the timeliness of the petition in the

circuit court. The BZA, however, entered an appearance in

this Court to address the issue of timely filing.

5
 II. ANALYSIS

We will first address the issue concerning the

timeliness of the County’s petition for a writ of

certiorari and whether that issue can be raised for the

first time in this Court. We will then consider the merits

of the County’s assignments of error challenging the

decision of the circuit court finding that the McCarthys’

garage apartment is a lawful nonconforming use.

1. Timeliness

The provisions of Code § 15.2-2314 govern appeals from

a final decision of a board of zoning appeals to a circuit

court. In pertinent part, the statute states:

Any person or persons jointly or severally
aggrieved by any decision of the board of zoning
appeals, or any aggrieved . . . department, board
or bureau of the locality, may file with the
clerk of the circuit court for the county or city
a petition specifying the grounds on which
aggrieved within 30 days after the final decision
of the board.

Code § 15.2-2314. Thus, under the terms set forth by the

General Assembly, the County had 30 days from the BZA’s

final decision to file a petition for a writ of certiorari.

Even though the County admits that it did not file its

petition within that 30 days, the question that remains is

whether the timeliness of the petition for a writ of

certiorari can be questioned for the first time before this

6
Court. Stated differently, is the failure to file the

petition within the required 30-day period a defect in the

circuit court’s subject matter jurisdiction and therefore a

claim not capable of being waived? See Earley v.

Landsidle, 257 Va. 365, 371, 514 S.E.2d 153, 156 (1999)

(“[t]he lack of subject matter jurisdiction may be raised

at any time during a proceeding,” including on appeal).

We have not previously determined the nature of the

30-day period specified in Code § 15.2-2314 for filing a

petition for a writ of certiorari to review the final

decision of a board of zoning appeals. The County,

however, asserts that we decided this issue in Board of

Supervisors of Fairfax County v. Board of Zoning Appeals of

Fairfax County, 225 Va. 235, 302 S.E.2d 19 (1983). We do

not agree.

There, the question was “whether the successful

applicant before the board of zoning appeals must be made a

party to the certiorari proceeding within the thirty-day

period prescribed by” former Code § 15.1-497 (now Code

§ 15.2-2314). Id. at 237, 302 S.E.2d at 20. We concluded

that, because the statute required

only that an aggrieved person file a petition for
certiorari within the prescribed thirty-day
period and that the petition specify the grounds
upon which the petitioner is aggrieved. . . . no
action other than the filing of a proper petition

7
 within the prescribed period [was] necessary to
complete the institution of the proceeding.

Id. at 238, 302 S.E.2d at 21. Until the board of zoning

appeals made a return on the writ of certiorari, “the only

necessary parties [were] the aggrieved person and the

board.” Id. Unlike the present case, the aggrieved party

in Board of Supervisors had timely filed the petition for a

writ of certiorari in the circuit court.

In order to decide whether the County’s failure to

timely file the petition for a writ of certiorari can be

raised for the first time before this Court, we must

revisit the term “jurisdiction.” “Jurisdiction . . . is

the power to adjudicate a case upon the merits and dispose

of it as justice may require.” Shelton v. Sydnor, 126 Va.

625, 629, 102 S.E. 83, 85 (1920). In order for a court to

have the power to adjudicate a particular case upon the

merits, i.e., to have “active jurisdiction,” Farant Inv.

Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E. 141, 144

(1924), several elements are needed. See also Morrison v.

Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990).

Those elements are

subject matter jurisdiction,[2] which is the
authority granted through constitution or statute

2
Subject matter jurisdiction is sometimes referred to
as “potential jurisdiction”, i.e. “ ‘the power granted by
the sovereignty creating the court to hear and determine

8
 to adjudicate a class of cases or controversies;
territorial jurisdiction, that is, authority over
persons, things, or occurrences located in a
defined geographic area; notice jurisdiction, or
effective notice to a party or if the proceeding
is in rem seizure of a res; and “the other
conditions of fact must exist which are demanded
by the unwritten or statute law as the
prerequisites of the authority of the court to
proceed to judgment or decree.”

Id. (quoting Farant Inv. Corp., 138 Va. at 427-28, 122 S.E.

at 144) (footnote added). All these elements “are

necessary to enable a court to proceed to a valid

judgment.” Morrison, 239 Va. at 169, 387 S.E.2d at 755.

There is, however, a fundamental distinction between the

element of subject matter jurisdiction and the “other

‘jurisdictional’ elements.” Id.

Jurisdiction of the subject matter can only be
acquired by virtue of the Constitution or of some
statute. Neither the consent of the parties, nor
waiver, nor acquiescence can confer it. Nor can the
right to object for a want of it be lost by
acquiescence, neglect, estoppel or in any other
manner. . . . and the want of such jurisdiction of the
trial court will be noticed by this court ex mero
motu.

Humphreys v. Commonwealth, 186 Va. 765, 772-73, 43 S.E.2d

890, 894 (1947) (citation omitted); accord Morrison, 239

Va. at 169, 387 S.E.2d at 755. Furthermore, the lack of

subject matter jurisdiction can be initially raised at any

controversies of a given character.’ ” Farant Inv. Corp.,
138 Va. at 427, 122 S.E. at 144 (citation omitted).

9
point during the proceedings, including on appeal.

Morrison, 239 Va. at 170, 387 S.E.2d at 756.

In Code § 17.1-513, the General Assembly granted

circuit courts appellate jurisdiction over appeals from the

judgments and proceedings of inferior tribunals in such

civil and criminal cases as the General Assembly may

provide. The General Assembly granted authority to circuit

courts specifically to review any final decision of a board

of zoning appeals in Code § 15.2-2314. Together, those two

statutes confer upon circuit courts subject matter

jurisdiction over the class of cases consisting of appeals

from the final decisions of boards of zoning appeals.

The provisions of Code § 15.2-2314, however, demand

another “condition[] of fact [to] exist . . . as the pre-

requisites of the authority of the court to proceed to

judgment or decree.” Farant Inv. Corp., 138 Va. at 427-28,

122 S.E. at 144. The aggrieved person must file in the

circuit court a petition for a writ of certiorari

“specifying the grounds on which aggrieved within 30 days

after the final decision of the board.” Code § 15.2-2314.

The 30-day filing requirement set by the General Assembly

does not define the class of cases, i.e. the subject matter

jurisdiction, over which the circuit court has authority to

adjudicate. Instead, as noted above, that class of cases

10
is established in Code §§ 17.1-513 and 15.2-2314 as appeals

from final decisions of boards of zoning appeals. In other

words, the 30-day filing requirement is not an aspect of

subject matter jurisdiction, but rather is a statutory

prerequisite for a circuit court to proceed to adjudicate

an appeal from a final decision of a board of zoning

appeals.3 See Morrison, 239 Va. at 169, 387 S.E.2d at 755;

Farant Inv. Corp., 138 Va. at 427-28, 122 S.E. at 144.

We made a similar distinction in Nelson v. Warden of

Keen Mountain Corr. Ctr., 262 Va. 276, 552 S.E.2d 73

(2001). There, we distinguished between subject matter

jurisdiction granted by constitution or statute and the

statutory requirements that enable a court to exercise its

subject matter jurisdiction. Id. at 282, 552 S.E.2d at 76.

We concluded that a statutory requirement of notice to

parents was not jurisdictional but procedural in nature and

could be waived by a failure to raise a timely objection to

the lack of notice. Id. at 285, 552 S.E.2d at 78.

3
The 30-day filing requirement could also be viewed as
“notice jurisdiction, or effective notice to a party.”
Morrison, 239 Va. at 169, 387 S.E.2d at 755. The purpose
of a time limitation for filing an appeal “is not to
penalize the appellant but to protect the appellee. If the
required papers are not [timely] filed . . . the appellee
is entitled to assume that the litigation is ended, and to
act on that assumption.” Avery v. Brunswick County Sch.
Bd., 192 Va. 329, 333, 64 S.E.2d 767, 770 (1951).

11
 Likewise, in Morrison we concluded that a 90-day

waiting period for filing a medical malpractice action was

a mandatory procedural requirement and did not involve

subject matter jurisdiction. 239 Va. at 173, 387 S.E.2d at

757-58. The failure to comply with the requirement,

therefore, did “not divest the [circuit] court of [its]

subject matter jurisdiction.” Id. at 173, 387 S.E.2d at

758. In reaching that decision, we pointed out that the

General Assembly had, by statute, granted subject matter

jurisdiction to circuit courts to decide cases and

controversies involving torts and that medical malpractice

actions are tort claims. Id. at 172, 387 S.E.2d at 757;

cf. Sabre Constr. Corp. v. County of Fairfax, 256 Va. 68,

72, 501 S.E.2d 144, 147 (1998) (ten-day requirement for

filing appeal from decision of public body to award a

contract was “a special limitation” on the “substantive

right to file an action against a county” or a “condition

precedent to maintaining the claim”); Commonwealth v.

Brunson, 248 Va. 347, 353, 448 S.E.2d 393, 397 (1994)

(failure to file an information for forfeiture within 90

days of the date when the Commonwealth seized property

deprived the trial court of jurisdiction to consider the

information).4

4
We did not decide in Sabre or Brunson whether the

12
 In many cases where time limitations for filing

appeals were at issue, we referred to those filing

requirements as “jurisdictional.” For example, to perfect

an appeal from a circuit court to this Court, Rule 5:9

states that “[n]o appeal shall be allowed unless, within 30

days after the entry of final judgment or other appealable

order or decree, counsel for the appellant files with the

clerk of the trial court a notice of appeal.” Rule 5:9(a).

A timely-filed notice of appeal is necessary to confer

jurisdiction upon this Court to hear the appeal. See Super

Fresh Food Mkts. v. Ruffin, 263 Va. 555, 563, 561 S.E.2d

734, 739 (2002) (since notice of appeal was filed after the

30-day time period, the “Court lack[ed] jurisdiction to

consider [it]”); School Bd. of the City of Lynchburg v.

filing requirement at issue in each case was an aspect of
subject matter jurisdiction and thus capable of being
raised at any time, nor did we need to do so. In both
instances, the issue had been timely raised in the trial
court. Sabre, 256 Va. at 70, 510 S.E.2d at 146; Brunson,
248 Va. at 349, 448 S.E.2d at 395. However, in Cunningham
v. Smith, 205 Va. 205, 135 S.E.2d 770 (1964), we allowed a
defendant, in a collateral attack on his conviction, to
claim that his conviction was void because the orders of
conviction did not show the concurrence of the
Commonwealth's Attorney in waiving a trial by jury as
required by the Constitution of Virginia. Id. at 206, 135
S.E.2d at 771. We concluded that compliance with the
mandatory provision of the Constitution of Virginia was
essential to the trial court’s jurisdiction to try the
defendant without a jury and that, without compliance,
jurisdiction was not obtained. Id. at 208, 135 S.E.2d at
773.

13
Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d

319, 323 (1989) (this Court lacked “jurisdiction to

entertain the appeal on its merits because no notice of

appeal was filed with the clerk of the trial court within

30 days after entry of the final order”); cf. Hurst v.

Ballard, 230 Va. 365, 367, 337 S.E.2d 284, 285 (1985)

(failure to pay writ tax within prescribed time limit

divests circuit court of jurisdiction because this Court

has consistently “held that the failure to comply with

rules governing appeals precludes ‘the exercise of the

jurisdiction of the circuit court over the proceedings’ ”

(citation omitted)).

Similarly, in the Administrative Process Act, the

General Assembly provided a procedure for court review of

certain actions taken by administrative agencies. Code

§ 2.2-4026. To obtain such a review, Rule 2A:2 requires

that “[a]ny party appealing from a regulation or case

decision shall file, within 30 days . . . of the final

order in the case decision, with the agency secretary a

notice of appeal.” The timely filing of that notice of

appeal is jurisdictional. See State Water Control Bd. v.

Crutchfield, 265 Va. 416, 423, 578 S.E.2d 762, 766 (2003)

(“[b]ecause the petitioners’ notice of appeal and original

petition for appeal were timely filed within the 30-day

14
time periods specified . . . the circuit court had

jurisdiction”); Virginia Retirement Sys. v. Avery, 262 Va.

538, 542, 551 S.E.2d 612, 614 (2001) (“the circuit court

had jurisdiction over the appeal because [appellee] had

perfected it by filing her notice of appeal and her

petition for appeal within the times specified”); Occoquan

Land Dev. Corp. v. Cooper, 239 Va. 363, 368, 389 S.E.2d

464, 467 (1990) (finding that “the county failed to perfect

its appeal in a timely manner, . . . the trial court was

without jurisdiction to hear the case”); see also Sours v.

Virginia Bd. for Architects, Prof’l Eng’rs, Land Surveyors

and Landscape Architects, 30 Va. App. 313, 318, 516 S.E.2d

712, 715 (1999) (“the timely filing of a petition for

appeal of an agency decision is jurisdictional”); cf.

Bendele v. Virginia Dep’t of Med. Assistance Servs., 29 Va.

App. 395, 400, 512 S.E.2d 827, 829-30 (1999) (“because the

appellant concedes that she did not comply with Rule 2A:4,

the circuit court did not have jurisdiction to hear this

administrative appeal”). In all these cases, we did not,

however, state that the time requirements for the appellate

filings at issue were an aspect of subject matter

jurisdiction. That question was not before us because, in

each case, any concern about compliance with the respective

time period for filing the appeal had been timely raised,

15
and we therefore did not need to decide whether the issue

had been or could have been waived.

Like the statutory provisions in Morrison and Nelson,

the 30-day filing requirement in Code § 15.2-2314 does not

involve the subject matter jurisdiction of a circuit court

to adjudicate the matter in controversy. As such, the

filing requirement is an “other ‘jurisdictional’ element[]”

subject to waiver if not properly raised. Morrison, 239

Va. at 169, 387 S.E.2d at 755. Thus, we hold that the

County’s failure to file the petition for a writ of

certiorari under Code § 15.2-2314 within 30 days of the

final decision of the BZA did not divest the circuit court

of its subject matter jurisdiction. The issue of timely

filing is therefore waived since it was not raised in the

circuit court. See Rule 5:25. We turn now to the merits

of the assignments of error presented by the County.

2. Nonconforming Use

The sole remaining issue is whether the garage

apartment was a lawful nonconforming use. We have defined

such a use as “ ‘a lawful use existing on the effective

date of the zoning restriction and continuing since that

time in non-conformance to the ordinance.’ ” C. & C., Inc.

v. Semple, 207 Va. 438, 439 n.1, 150 S.E.2d 536, 537 n.1

(1966) (citation omitted); see also Code § 15.2-2307. When

16
a locality challenges a use as illegal, the locality “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, 233 Va. 37,

47, 353 S.E.2d 727, 734 (1987). The burden then shifts to

the landowner to establish that the use is a lawful

nonconforming use. Id. The landowner “has both the burden

of initially producing evidence tending to prove a lawful

nonconforming use and the burden of persuading the fact-

finder.” Knowlton v. Browning-Ferris Indus. of Virginia,

Inc., 220 Va. 571, 574, 260 S.E.2d 232, 235 (1979).

The final decision of a board of zoning appeals with

regard to “an order, requirement, decision or determination

of a zoning administrator . . . in the administration or

enforcement of any ordinance . . . [is] presumed to be

correct” on appeal to a circuit court. Code § 15.2-2314;

accord Lamar Co., LLC v. Board of Zoning Appeals, 270 Va.

540, 545, 620 S.E.2d 753, 755-56 (2005). “The appealing

party may rebut that presumption by proving by a

preponderance of the evidence . . . that the board of

zoning appeals erred in its decision.” Code § 15.2-2314.

The “preponderance of the evidence” standard, however,

pertains only to questions about the sufficiency of the

17
record to prove a particular fact. Lamar, 270 Va. at 546,

620 S.E.2d at 756. When, as in the case before us, the

issue is a question of law, i.e., the interpretation of the

1941 Ordinance, the appealing party must show that the

board either applied “ ‘erroneous principles of law’ ” or

that its decision was “ ‘plainly wrong and in violation of

the purpose and intent of the zoning ordinance.’ ” Id. at

545, 620 S.E.2d at 756 (quoting City of Suffolk v. Board of

Zoning Appeals, 266 Va. 137, 142, 580 S.E.2d 796, 798

(2003)). On appeal to this Court, a circuit court’s

determination affirming the final decision of a board of

zoning appeals is accorded the same presumption of

correctness. Patton v. City of Galax, 269 Va. 219, 229,

609 S.E.2d 41, 46 (2005).

The 1941 Ordinance was a permissive zoning ordinance.

County of Fairfax v. Parker, 186 Va. 675, 688, 44 S.E.2d 9,

15 (1947). Under such an ordinance “ ‘only those uses

which are specifically named are permitted, and so the

burden is on the property owner to show that the use he

proposes is one that is included or permitted.’ ” Id. at

684, 44 S.E.2d at 13 (citation omitted). Thus, in order to

prevail, the McCarthys had to show that the 1941 Ordinance

permitted, in the Agricultural District, multiple single-

family dwellings on a lot. In order to determine if the

18
garage apartment was permitted on the subject property

under the 1941 Ordinance, the definition of the term “lot”

must be examined:

A piece or parcel of land abutting on a
street whose area, in addition to the parts
thereof occupied or which may hereafter be
occupied by a building and buildings accessory
thereto, is sufficient to furnish the yards, and
minimum area required for compliance with this
ordinance. The word lot shall include building
site.

1941 Ordinance § I(13).

We agree with the County’s argument that, under the

definition of the term “lot” in the 1941 Ordinance, only

one principal dwelling was permitted on a single lot. The

critical portion of the definition is the clause “in

addition to the parts thereof occupied or which may . . .

be occupied by a building and buildings accessory thereto.”

(Emphasis added.) This clause limited the number of

principal buildings permitted on a single lot to one

building but permitted more than one accessory building.

Thus, a lot consisted of a piece of land abutting on a

street whose area, in addition to the area occupied by a

building and accessory buildings, met the yards and minimum

area requirements of the 1941 Ordinance. Although the term

“building site” is not defined in the 1941 Ordinance, the

definition of the term “lot” specifically included a

19
building site. The McCarthys overlook this portion of the

definition in their argument that the term “building site”

is separate and distinct from the term “lot.”

We agree with the McCarthys’ argument that the use of

the word “parts” in the definition meant that lots could

have different parts or areas occupied by buildings. That

conclusion, however, does not change the clear language of

the 1941 Ordinance permitting only one principal building

on a lot. The word “parts” merely referenced the fact

that, if a lot had a principal building and one or more

accessory buildings, “parts,” as opposed to a “part,” of

the lot would be occupied by buildings.

This interpretation of the 1941 Ordinance is

consistent with the interpretation given to it by officials

charged with its enforcement. At the BZA hearing, it was

pointed out that such officials had “consistently allowed

one dwelling unit per lot or building site under the

Ordinance since [19]41.” Furthermore, a member of the BZA

who had worked in Fairfax County under the 1941 Ordinance

stated, “I know of no circumstance at all where legally two

structures, residential, two units, residential units, were

permitted on one lot.” “A consistent administrative

construction of an ordinance by the officials charges with

its enforcement is entitled to great weight.” Masterson,

20
233 Va. at 44, 353 S.E.2d at 733; accord Board of

Supervisors v. Robertson, 266 Va. 525, 538, 587 S.E.2d 570,

578 (2003).

Finally, we point out that the only evidence offered

by the McCarthys to show that the garage apartment is a

lawful nonconforming use was the testimony of the original

landowner’s daughter. But, she merely opined that the

garage apartment was built in accordance with the 1941

Ordinance. Neither she nor the McCarthys presented any

facts or documents to substantiate that opinion. That

evidence alone was not sufficient to carry the McCarthys’

burden of persuading the fact-finder that the garage

apartment was permitted under the 1941 Ordinance and is now

a lawful nonconforming use. See Knowlton, 220 Va. at 574,

260 S.E.2d at 235.

Thus, we conclude that the BZA’s final decision was

“plainly wrong and in violation of the purpose and intent

of the zoning ordinance.” Masterson, 233 Va. at 44, 353

S.E.2d at 733; Alleghany Enterprises, Inc. v. Board of

Zoning Appeals of the City of Covington, 217 Va. 64, 67,

225 S.E.2d 383, 385 (1976). We will therefore reverse the

judgment of the circuit court.

III. CONCLUSION

21
 For these reasons, we hold the 30-day period for

filing a petition for a writ of certiorari seeking review

of a final decision of a board of zoning appeals is a

statutory prerequisite or “condition[] of fact” that

enables a circuit court to exercise its authority to review

the final decision of a board of zoning appeals. Farant

Inv. Corp., 138 Va. 427-28, 122 S.E. at 144; see also

Nelson, 262 Va. at 284-85, 552 S.E.2d at 77. The filing

requirement is not an aspect of the circuit court’s subject

matter jurisdiction. Thus, the failure to file the

petition within the required 30 days is waived if not

timely raised during the proceedings. Since the County’s

failure to timely file its petition for a writ of

certiorari was first raised in this Court, the issue is

waived and we will not address it.5

Furthermore, since the 1941 Ordinance permitted only

one principal dwelling on a lot, the County has overcome

the presumption of correctness afforded the BZA’s final

decision. The BZA’s decision that the garage apartment is

a lawful nonconforming use was “plainly wrong and in

violation of the purpose and intent of the zoning

ordinance.” Masterson, 233 Va. at 44, 353 S.E.2d at 733.

5
In light of our decision, it is not necessary to
address the County’s argument that our decision in West

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 In reaching this conclusion, we are mindful of the

BZA’s expressed concern about displacing the garage

apartment after approximately 54 years of use. Equitable

concerns, however, cannot be a basis for the BZA’s decision

in this case. See Foster v. Geller, 248 Va. 563, 570, 449

S.E.2d 802, 807 (1994) (legislative bodies “have authorized

the use of equitable considerations only when the issue is

whether to grant a special use permit”).

For these reasons, we will reverse the judgment of the

circuit court and enter final judgment in favor of the

County.

Reversed and final judgment.

Lewinsville should be applied only prospectively.

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