Wolfe v. Board of Zoning Appeals

Present: All the Justices

JAMES B. WOLFE, ET AL.

v. Record No. 991705

BOARD OF ZONING APPEALS OF
FAIRFAX COUNTY, ET AL.
OPINION BY
CHIEF JUSTICE HARRY L. CARRICO
June 9, 2000

BOARD OF ZONING APPEALS OF
FAIRFAX COUNTY

v. Record No. 991706

JANE W. GWINN, ZONING
ADMINSTRATOR OF FAIRFAX COUNTY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge

Background

On April 1, 1997, the Zoning Administrator for Fairfax

County issued a notice of violation to James B. Wolfe and

Raymond L. Wolfe stating that a recent inspection had

revealed the operation of a business called Wolfe Brothers,

Inc. on property identified on the Fairfax County Tax Map

as No. “41-1((1))15” (hereinafter, Lot 15), with the

parking of commercial vehicles 1 and the storing of building

materials. These activities, the notice stated, were

1
The commercial vehicles listed in the notice of violation
included a Chevrolet dump truck and a Sierra GMC dump
truck, both with “Wolfe Bros., Inc.” lettered thereon, as
well as a Chevrolet flat bed roll-off vehicle, a Chevrolet
“deemed to be a contractor’s office and shop and a storage

yard,” uses not permitted under the Fairfax County Zoning

Ordinance in an R-2 District, the residential zoning

classification applicable to Lot 15. The notice stated

further that the parking of the vehicles also violated a

provision of the zoning ordinance permitting the parking of

only “one (1) commercial vehicle per dwelling unit in an R

district.”

On April 28, 1997, Wolfe Brothers, Inc., Raymond L.

Wolfe, and James B. Wolfe (collectively, the Wolfes) 2 gave

notice of their intention to appeal the notice of violation

to the Fairfax County Board of Zoning Appeals (the BZA).

At a hearing before the BZA on September 9, 1997, the

issues included whether the vehicles the Wolfes parked on

their property were commercial vehicles within the meaning

of the zoning ordinance, whether such parking implicated a

“lawful nonconforming” or “grandfathered” use or a “vested

right,” and whether the Zoning Administrator was estopped

from enforcing the prohibition against more than one

commercial vehicle per dwelling because of the actions of a

former senior zoning inspector. On a tie vote of three to

stake body truck, and a flat bed trailer with a front-end
loader/back hoe.

2
three, the BZA upheld the determination of the Zoning

Administrator concerning Lot 15. 3

On October 16, 1997, pursuant to Code § 15.2-2314, the

Wolfes filed in the trial court a petition for a writ of

certiorari challenging the decision of the BZA. 4 A writ of

certiorari was issued to the BZA, and the record of the

proceeding before the BZA was forwarded to the trial court. 5

During the hearing before the BZA on Lot 15, the

Deputy Zoning Administrator noted that the Wolfes also

owned Lot 15A, located to the rear of Lot 15, and he told

the BZA “it was hard to tell . . ., out in the field, which

2
The record indicates that Raymond Wolfe and James Wolfe
are the owners of the property and Wolfe Brothers, Inc. is
the tenant.
3
Under § 18-306(2) of the Fairfax County Zoning Ordinance,
the concurring vote of four of the seven members of the BZA
is required to overturn a determination of the Zoning
Administrator.
4
The Wolfes say on brief that this petition for certiorari
raised “commercial parking and storage-yard issues.”
However, the petition itself states clearly that “[u]pon
[the Wolfes’] appeal of the Notice [of Violation] to the
BZA, the only issue pertained to the [Wolfes’] continued
parking of various vehicles, utilized by [the Wolfes] in
their contracting enterprises, upon the subject premises.
All other issues had been, and have remained, resolved by
agreement of the parties.” In addition, the trial court
ruled that the Zoning Administrator’s finding concerning
illegal parking was the only issue before the court with
respect to Lot 15, the other issues having “been resolved
among the parties.” Consequently, we will disregard any
further reference by the Wolfes to the storage-yard issue
so far as Lot 15 is concerned.

3
lot the equipment was parked on so only 15 was cited.” The

Deputy also said “it appears that at least some of the

equipment is parked on 15A,” and he thought the situation

“will require [the Zoning Administrator] to . . . turn

around and issue a notice to include 15A.” 6

Accordingly, on June 29, 1998, the Zoning

Administrator issued a notice of violation to Raymond L.

Wolfe and James B. Wolfe stating that recent inspections

had revealed that trucks and construction equipment were

being stored on Lot 15A. The notice also stated that

“[t]he storage of these vehicles and construction equipment

is deemed to be a storage yard,” a use not permitted in an

R-2 District, the residential zoning classification

applicable to Lot 15A.

On July 21, 1998, the Wolfes gave notice of their

intention to appeal the notice of violation on Lot 15A to

the BZA. At a hearing before the BZA on October 27, 1998,

the issues included whether the vehicles parked on Lot 15A

were commercial vehicles within the meaning of the zoning

ordinance, whether such parking was a “grandfathered” or a

5
This certiorari proceeding was designated in the trial
court as At Law No. 165844, and it is incorporated in our
Record No. 991705.
6
The record shows that Lot 15 contains one-half acre and is
improved by a dwelling. Lot 15A contains .3640 acre and is

4
“permitted . . . nonconforming” use, and whether the Zoning

Administrator was estopped from enforcing the prohibition

against more than one commercial vehicle per dwelling

because of the actions of the former senior zoning

inspector.

On a vote of four to three, the BZA reversed the

determination of the Zoning Administrator. On November 25,

1998, the Board of Supervisors of Fairfax County (the Board

of Supervisors) and Jane W. Gwinn, the Zoning

Administrator, filed in the trial court a petition for a

writ of certiorari challenging the decision of the BZA with

respect to Lot 15A. A writ of certiorari was issued to the

BZA, and the record of the proceedings before the BZA was
7
forwarded to the circuit court.

Trial Court Proceedings

On February 23, 1999, the Zoning Administrator moved

for the entry of “an order of nonsuit as to the claim by

the Board of Supervisors,” asserted in the certiorari

petition relating to Lot 15A. The motion stated that the

Board of Supervisors “did not authorize the filing of the

Petition [for Certiorari] on its behalf.” An order was

unimproved, except that a garage is located partly on Lot
15 and partly on Lot 15A.

5
entered on March 5, 1999, providing that “this matter is

nonsuited insofar as it purports to state any claim on

behalf of the Board of Supervisors."

The Wolfes filed a motion to consolidate for hearing

the two petitions for certiorari. The trial court granted

the motion.

The BZA then filed a motion to dismiss the petition

for certiorari relating to Lot 15A. The motion alleged

that the Zoning Administrator lacked standing “to prosecute

an appeal of the decision of the BZA” in light of the

admission, made in the Zoning Administrator’s motion for

nonsuit and incorporated in the nonsuit order, that the

Board of Supervisors did not authorize the certiorari

petition “to be filed on its behalf.”

The trial court denied the BZA’s motion to dismiss.

The court held that Gwinn, as the Zoning Administrator,

“has standing to bring this case whether the Board of

Supervisors joins in, authorize[s] it, or takes some

contrary position.”

Proceeding to the merits of the two petitions for

certiorari, the trial court rejected the Wolfes’ request

that the “second appeal,” i.e., the certiorari petition

7
This certiorari proceeding was designated in the trial
court as At Law No. 176552, and it is incorporated in our

6
relating to Lot 15A, be heard first because, the Wolfes

claimed, “[t]he administrative record [in the second

appeal] is much more complete.” The trial court stated

that it would consider the cases “in the order in which

they were filed,” meaning that the appeal concerning Lot 15

would be considered first.

The court then held that “the vehicles [in question]

are clearly commercial vehicles” and that “the Zoning

Administrator was correct in . . . finding that the Wolfes

had illegally parked commercial vehicles . . . on Lot 15.”

The court recognized that, because “the [Wolfes] had a

commercial vehicle in 1969 parked on the property . . .,

they may continue to park that vehicle there as long as

it’s not a tractor-trailer.” The court held further that

“estoppel is not an argument that may be made against the

government in the performance of its legitimate functions.”

In a final order entered April 20, 1999, and a corrected

order entered April 28, 1999, the court affirmed the

decision of the BZA with respect to Lot 15.

Concerning the petition for certiorari relating to Lot

15A, the trial court held that the BZA had “relied on

erroneous principles of law” in overturning the

determination of the Zoning Administrator. The court

Record No. 991706.

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stated that there was “no grandfather issue” with respect

to Lot 15A, that estoppel was not available to the Wolfes

concerning statements made to them by zoning officials, and

that the storage of vehicles on Lot 15A was not “some kind

of a lawful nonconforming use.” Accordingly, in a final

order entered April 20, 1999, the court reversed the

decision of the BZA and reinstated the determination of the

Zoning Administrator that the Wolfes’ use of Lot 15A

constituted a storage yard in violation of the zoning

ordinance.

The Wolfes appeal from the final judgments in both

certiorari proceedings, and the BZA appeals from the final

judgment in the proceeding involving Lot 15A. We will

consider the cases in the same order as the trial court,

meaning that we will consider Lot 15 first and on its own

separate record.

Lot 15 — Record No. 991705

Procedural Defaults

The Wolfes have defaulted several of the arguments

they make on appeal with respect to Lot 15. First, the

Wolfes argue that, “because the BZA’s 1997 decision

[involving Lot 15] was effectively subsumed within and

superseded by the 1998 BZA decision [involving Lot 15A],

the initial BZA decision and the Circuit Court’s affirmance

8
thereof are essentially void and should be reversed.” This

argument was not made in the trial court, Rule 5:25, and

the point is not the subject of an assignment of error,

Rule 5:17(c). Accordingly, we will not notice the point.

Buck v. Jordan, 256 Va. 535, 545-46, 508 S.E.2d 880, 885-86

(1998) (this Court will not consider issues raised for the

first time on appeal); City of Winchester v. American

Woodmark Corp., 250 Va. 451, 460, 464 S.E.2d 148, 153-54

(1995) (this Court does not consider arguments that are not

the subjects of assignments of error).

Second, in urging reversal of the trial court’s

judgment upholding the 1997 BZA decision concerning Lot 15,

the Wolfes argue at great length on the point that they

have been pursued for “violations regarding Lot 15 for

activities which were, in fact, occurring on Lot 15A.” The

Wolfes made no argument in the trial court questioning

whether Lot 15 served as the location of vehicles allegedly

parked in violation of the zoning ordinance. Indeed, the

Wolfes conceded the point below. In their petition for a

writ of certiorari regarding Lot 15, the Wolfes stated

that, “[b]ased upon uncontroverted evidence before the BZA,

there is no question the parking of vehicles designated in

9
the Notice [of Violation] has occurred, and yet is

occurring, upon both Lot 15 and Lot 15(A).” 8

Moreover, the Wolfes have not assigned error to the

trial court’s finding that Lot 15 served as the location of

illegally parked vehicles. In their petition for appeal,

the Wolfes assigned only two errors that are presently

pertinent to Lot 15. 9 They read as follows:

3. The Circuit Court erred in concluding that
the Wolfes’ construction vehicles were “commercial
vehicles” under the 1959 and 1978 Fairfax County
Zoning Ordinances.

4. The Circuit Court erred in determining that
estoppel, in the narrow sense the term was used by the
Wolfes, was inapplicable.

Assignment of Error No. 3 involves only the question

whether the Wolfes’ vehicles were commercial vehicles

within the meaning of the zoning ordinances and not whether

the vehicles were parked on Lot 15. Similarly, Assignment

of Error No. 4 involves only the question whether estoppel

is applicable in this case, which turns solely on the

8
This statement was made in an obvious attempt by the
Wolfes to support the allegations in their petition for a
writ of certiorari that the parking of vehicles on their
property was a grandfathered or lawful nonconforming use.
9
A third assignment of error, No. 2, alleged that “[t]he
Circuit Court erred in determining that the Wolfes were
operating a storage yard on their property.” This language
is broad enough to encompass Lot 15, but, as demonstrated
in n.4, supra, no viable issue remains in the case
concerning the existence of a storage yard on Lot 15, so

10
actions of a former senior zoning inspector and not on

where the vehicles were located on the Wolfes’ property.

Hence, the location argument is made for the first time on

appeal and is not the subject of an assignment of error.

Accordingly, we will not notice the argument. Buck, 256

Va. at 545-46, 508 S.E.2d at 885-86; American Woodmark, 250

Va. at 460, 464 S.E.2d at 153-54.

Third, the Wolfes argue that “[t]here can be no

question that the provisions of both the 1959 and 1978

Ordinances, which allowed the parking of ‘commercial

vehicles’ in residential districts, were ambiguous.” While

it is doubtful the Wolfes properly raised any objection

below to the alleged ambiguity of the term “commercial

vehicle,” it is clear beyond doubt that no assignment of

error addresses the trial court’s putative failure to find

the term ambiguous. Accordingly, we will not notice the

Wolfes’ argument on the point. Id.

Fourth, without always designating which lot they are

talking about, the Wolfes continue to assert on appeal

issues concerning the concepts of “grandfathered” and

“lawful nonconforming” uses they raised unsuccessfully

below. Yet, while the Wolfes’ Assignment of Error No. 5

Assignment of Error No. 2 can only be considered in
relation to Lot 15A.

11
alleges that the trial court erred in concluding that Lot

15A was not “grandfathered,” no assignment of error

addresses the issues of “grandfathered” and “lawful

nonconforming” uses with respect to Lot 15. Consequently,

we will not notice those issues. Id.

Commercial Vehicles

This brings us to the merits of the Wolfes’ Assignment

of Error No. 3 and the question whether their vehicles were

“commercial vehicles” within the meaning of Fairfax

County’s zoning ordinances. The Wolfes began parking

vehicles on their property in mid-1969 in connection with

their business of installing underground storage tanks,

lifts, lubrication equipment, air compressors, and other

types of equipment for gasoline service stations. At that

time, a zoning ordinance adopted in 1959 provided that

“[t]here may be kept as an accessory use on any lot in [a

residential] district not to exceed one commercial vehicle

(other than a tractor trailer) operated by the occupant of

the lot.”

A new zoning ordinance adopted in August 1978 allowed

the parking of one commercial vehicle on a residential lot

but barred “any tractor trailer or vehicle exceeding one

and one-half (1½) ton capacity.” A further change in

October 1978 added garbage trucks, dump trucks,

12
construction equipment, and cement-mixer trucks to the list

of commercial vehicles prohibited from parking in

residential districts. The amendment also defined a

“commercial vehicle” as “[a]ny vehicle with a rated

carrying capacity of 1,500 pounds (3/4 ton) or more, and

any vehicle, regardless of capacity, which displays

advertising lettered thereon or which is licensed as a ‘for

hire’ vehicle.”

The trial court held that, because the Wolfes’

vehicles “were used for commercial purposes,” they “then

and now are commercial vehicles,” meaning they were

commercial vehicles under both the 1959 and the 1978

versions of the zoning ordinance. The Wolfes say this

holding was “incorrect.”

Citing Sellers v. Bles, 198 Va. 49, 53, 92 S.E.2d 486,

489 (1956), the Wolfes submit that, since the provisions of

the zoning ordinances restrict the common law right of an

owner “to use his property in his own way,” the provisions

must be strictly construed in favor of the individual

claiming the right. Continuing, and stressing a lack of

definition of the term “commercial vehicle” in the 1959

zoning ordinance, the Wolfes say that while, “in its

broadest sense, ‘commercial’ simply indicates a

relationship to business or commerce, . . . in its more

13
narrow and restricted sense the term is limited to the

purchase, sale, or trade of goods, commodities, and

services.” (Citing Hendricks v. American Employers Ins.

Co., 176 So.2d 827, 832 (La. Ct. App. 1965) (emphasis

added)). The Wolfes also say that, “construing the term

most favorably to the landowner, [the] term ‘commercial

purpose’ in [a] zoning ordinance [is] limited to businesses

for the purchase, sale, exchange of goods and commodities,

or the rendering of services.” (Citing Reiser v. Meyer,

323 S.W.2d 514, 521 (Mo. Ct. App. 1959) (emphasis added)).

We fail to perceive how these definitions benefit the

Wolfes. In their contracting business, they are obviously

involved in “the rendering of services,” and their vehicles

are used directly in the performance of those services.

Nor can we perceive any difference between a meaning of the

term “commercial” based upon the element of rendering

services, on the one hand, and the meaning assigned by the

trial court based upon the element of use, on the other

hand. To hold there is a difference would be to say that

rendering services with a vehicle is not a use of the

vehicle, and that would involve an unacceptable exercise in

hair-splitting.

The meaning adopted by the trial court, viz., a

commercial vehicle is one used for commercial purposes,

14
provides a simple, straightforward, and common sense test,

fair to both sides of a zoning contest. Accordingly, we

will apply the test here.

There can be no question that the Wolfes used their

vehicles for commercial purposes. Indeed, they have

admitted as much. 10 They also admitted before the BZA that

the vehicles were commercial vehicles under the 1978

version of the zoning ordinance. 11 We think the vehicles

were just as clearly commercial vehicles under the 1959

ordinance. Accordingly, we find no error in the trial

court’s ruling that the vehicles were commercial vehicles

“then and now.”

Estoppel

The Wolfes’ Assignment of Error No. 4 presents the

question whether the trial court erred in determining that

estoppel was inapplicable in this case. As noted

previously, the Wolfes’ estoppel argument is based upon the

actions of a former senior zoning inspector of Fairfax

County.

10
In the hearing before the BZA on Lot 15, the Wolfes’
counsel stated that the vehicles “are used for commercial
purposes.” The trial judge found that “[i]t’s admitted
[the vehicles] were used for commercial purposes.”
11
In the BZA hearing on Lot 15, the Wolfes’ counsel was
asked whether, under “the current definition,” the vehicles
in question were “commercial vehicles,” and counsel
replied, “yes.”

15
 The record shows that, on February 6, 1979, the

inspector, Douglas S. Leigh, issued a notice of violation

to the Wolfes for “[s]torage [on Lot 15] of construction

equipment in a residential zone.” Leigh later marked the

notice “[c]leared 3-7-79.” The Wolfes note on brief that

Leigh “did not even mention any vehicle, although the same,

or substantially the same, vehicles as those at issue were

right there in front of him.”

Leigh issued a second notice of violation on November

16, 1979, for the “parking [on Lot 15] of a dump truck and

construction equipment in a residential zone.” Leigh

marked this notice “[c]leared 12-31-1979.”

Leigh issued a third notice of violation on March 27,

1984, for “the storage [on Lot 15] of construction

equipment, mortar pans, cinder blocks and plastic and metal

pipe.” There is no indication of record that this notice

was “cleared,” but the Wolfes state on brief that the

violation was not prosecuted, and they again note that

there was no mention in the 1984 notice “of any vehicle,

although the vehicles at issue were right there.”

The gist of the Wolfes’ argument is that Leigh’s

failure to issue citations for the parked vehicles prior to

the 1978 zoning amendments and his marking as “cleared” or

failing to prosecute citations issued after the amendments

16
indicate his consistent interpretation of “the applicable

Ordinances to permit the parking of the subject vehicles on

the Wolfes’ property.” And this, the Wolfes say, works an

estoppel against the Zoning Administrator.

The Wolfes do not question the rule that estoppel does

not apply to a local government when it acts in a

governmental capacity, the capacity involved here.

Westminster-Canterbury of Hampton Roads, Inc. v. City of

Virginia Beach, 238 Va. 493, 503, 385 S.E.2d 561, 566

(1989); Gwinn v. Alward, 235 Va. 616, 621, 369 S.E.2d 410,

413 (1988). The Wolfes say, however, that they are “not

attempting to use estoppel in that sense — that is, to

argue that the current Zoning Administrator is estopped

from finding a violation based on a prior Administrator’s

failure to find one, if there were, in fact, an unlawful

use from the start.” “Rather,” the Wolfes say they “argue

that the current Zoning Administrator is estopped from

finding that the use had been unlawful throughout.”

If one could detect a distinction between the senses

in which the Wolfes are attempting to use estoppel in this

case, it would be a distinction without a difference, and

the result would be the same either way. The Wolfes’

thesis assumes that the use of their property was lawful at

some point before the current Zoning Administrator found

17
that the use had been unlawful throughout. The thesis also

assumes that the use was previously lawful because the

purported “interpretation” of Inspector Leigh, right or

wrong, made it lawful.

The true situation, however, is that the use was

unlawful throughout; ever since adoption of the 1959

ordinance, it has been unlawful to park more than one

commercial vehicle on a residential lot in Fairfax County,

and the Wolfes admittedly have consistently parked more

than one. And, concerning Leigh’s purported

interpretation, the rule is that “[n]o subordinate

municipal official can bind the municipality to an

incorrect . . . interpretation of the [municipality’s]

ordinances.” Dick Kelly Enters. v. City of Norfolk, 243

Va. 373, 382, 416 S.E.2d 680, 685 (1992).

Conclusion

The determination of the Zoning Administrator

concerning Lot 15 is presumed to be correct. See Crestar

Bank v. Martin, 238 Va. 232, 236, 383 S.E.2d 714, 716

(1989). The decision of the BZA upholding the Zoning

Administrator’s determination and the trial court’s

judgment affirming the BZA’s decision are also

presumptively correct. See Masterson v. Board of Zoning

Appeals, 233 Va. 37, 44, 353 S.E.2d 727, 732-33 (1987).

18
The Wolfes have failed to overcome any of these

presumptions. Accordingly, we will affirm the judgment of

the trial court with respect to Lot 15, including the trial

court’s reservation of the Wolfes’ right to park on Lot 15

one commercial vehicle other than a tractor trailer.

Lot 15A — Record No. 991706

The Wolfes’ Assignment of Error No. 1 and the BZA’s

sole assignment of error present the same question, viz.,

whether the trial court erred in ruling that the Zoning

Administrator had standing to appeal the BZA decision in

the certiorari proceeding involving Lot 15A. The Wolfes’

Assignments of Error Nos. 2 and 5 present the additional

questions, respectively, whether the trial court erred in

determining that the Wolfes were operating a storage yard

on their property and that Lot 15A had never been a lawful

use and was not grandfathered. We find the standing issue

dispositive. Accordingly, we do not reach the Wolfes’

additional questions.

With respect to the standing issue, Code § 15.2-2280

authorizes localities to adopt zoning ordinances and Code

§ 15.2-2286(A)(4) authorizes localities to include in the

ordinances provisions for the appointment of a zoning

administrator who “shall have all necessary authority on

behalf of the governing body to administer and enforce the

19
zoning ordinance. [This] authority shall include . . .

insuring compliance with the ordinance, bringing legal

action, including injunction, abatement, or other

appropriate action or proceeding.” Code § 15.2-2314

provides that “any officer, department, board or bureau of

the locality, may present to the circuit court for the

county or city a petition [for a writ of certiorari]

specifying the grounds on which aggrieved.”

Section 18-101(1) of the Fairfax County Zoning

Ordinance provides that “[u]nless otherwise specifically

qualified, the provisions of this Ordinance shall be

enforced by the Zoning Administrator, who shall serve at

the pleasure of the Board of Supervisors.” Section 18-

101(3) of the ordinance provides that “[t]he Zoning

Administrator shall have all necessary authority on behalf

of the Board [of Supervisors] to administer and enforce the

provisions of this Ordinance. Such authority shall include

. . . the ability to bring legal action to insure

compliance with the provisions [of the ordinance],

including injunction, abatement, or other appropriate

action or proceeding.”

Gwinn, as we will refer to the Zoning Administrator

hereinafter, emphasizes the “all necessary authority”

language contained in Code § 15.2-2286(A)(4) and in § 18-

20
101(3) of the Fairfax County Zoning Ordinance relating to

the administration and enforcement of the ordinance. Gwinn

also puts great emphasis upon the language of Code § 15.2-

2314, which authorizes “any officer” of a locality to

present a certiorari petition to a circuit court.

Gwinn argues that nothing in the zoning ordinance

requires that the Board of Supervisors authorize her to

present a petition for a writ of certiorari or that the

board must be a co-litigant in any action she brings.

Rather, she says, the zoning ordinance unambiguously grants

and delegates to her “all necessary authority” to bring

appropriate legal actions to ensure compliance with the

zoning ordinance, including the presentation of a petition

for certiorari to the circuit court pursuant to Code

§ 15.2-2314.

We do not agree that Gwinn possessed such authority in

the present case. While she emphasizes the “all necessary

authority” language of Code § 15.2-2286(A)(4) and § 18-

101(3) of the zoning ordinance, we place the emphasis where

it properly belongs, and that is upon the language “on

behalf of the local governing body” or “on behalf of the

Board [of Supervisors],” which appears immediately after

the “all necessary authority” language in the statute and

the ordinance, respectively. With the emphasis so placed,

21
the necessary conclusion is that Gwinn is authorized to

present a petition for certiorari only when such action is

taken on behalf of the Board of Supervisors.

Nor is the conclusion altered by the language of Code

§ 15.2-2314 which permits “any officer” of a locality to

present a petition for certiorari to the circuit court from

a decision of a board of zoning appeals. Code § 15.2-2314

must be read in pari materia with Code § 15.2-2286(A)(4)

and § 18-101(1) of the zoning ordinance, “since they relate

to the same subject.” Taylor v. Shaw & Cannon Co., 236 Va.

15, 19, 372 S.E.2d 128, 131 (1988). When so read, there is

imposed upon “any officer” taking action under Code § 15.2-

2314 the requirement that the action be on behalf of the

local governing body.

Here, there is a clear admission in Gwinn’s motion for

nonsuit and a clear judicial finding in the nonsuit order

that Gwinn’s filing of the petition for certiorari relating

to Lot 15A was not on behalf of the Board of Supervisors,

and that is conclusive of the issue. Accordingly, we hold

that the trial court erred in finding that Gwinn had

standing to file the certiorari petition in question.

Gwinn’s counsel expressed the concern in the trial

court that if Gwinn was held to lack standing in this case

then it would be necessary to have “a specific

22
authorization or resolution entered each time by the Board

of Supervisors for any case to be appealed by the Zoning

Administrator.” We do not hold in this case, however, that

Gwinn must secure authorization from the Board of

Supervisors each time she decides it is necessary or

appropriate to present a petition for certiorari. We hold

only that, under the particular circumstances of this case,

she did not possess the authority to file the petition for

certiorari relating to Lot 15A.

Gwinn cites several of our prior decisions in each of

which, she says, “a zoning administrator was a participant

in proceedings before the circuit court and a party to the

subsequent appeal,” namely, McNair v. Clatterbuck, 212 Va.

532, 186 S.E.2d 45 (1972), WANV, Inc. v. Houff, 219 Va. 57,

244 S.E.2d 760 (1978), Gwinn v. Alward, supra, and Gwinn v.

Collier, 247 Va. 479, 443 S.E.2d 161 (1994). None of these

decisions, however, involved the question that is presented

here, viz., whether a zoning administrator has standing to

file a petition for certiorari from a decision of a board

of zoning appeals when such filing is not on behalf of the

local governing body.

Accordingly, we will reverse the judgment of the trial

court with respect to Lot 15A, dismiss Gwinn’s petition for

23
certiorari, and reinstate the decision of the BZA

concerning Lot 15A.

Record No. 991705 — Affirmed.
Record No. 991706 — Reversed and dismissed.

24