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BD. OF ZONING APP. FOR THE CO. OF YORK v. 852 LLC


BD. OF ZONING APP. FOR THE
CO. OF YORK

v.

852 LLC


April 16, 1999
Record No. 981246

BOARD OF ZONING APPEALS FOR THE COUNTY OF YORK

v.

852 L.L.C.

FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Present: All the Justices
OPINION BY JUSTICE A. CHRISTIAN COMPTON


In this land use controversy, we consider
whether the trial court erred in reversing a board of zoning
appeals’ decision that had affirmed a zoning administrator’s
interpretation of a local ordinance prescribing computation of
developable land area. At issue is whether a landowner should be
allowed a 100% density credit that is set forth in the ordinance.

The ordinance in question is titled
"Computation of buildable or developable area." York
County, Va., Code Sect. 24.1-203 (1996). As pertinent, the
section provides: "In accordance with the comprehensive
plan, certain land areas shall not be developed at all and others
may only be credited partially toward buildable or developable
area. These shall be determined on a case-by-case basis utilizing
the percentages shown in the table below where . . .
[t]he ‘Density‘ column contains the percentage of the
specified land type which may be included in calculations of net
developable density."

The table in Sect. 24.1-203 provides for
specified density credits for various land types. In subparagraph
(g), "0%" density credit is allowed for: "Areas of
existing ponds, lakes, or other impounded water bodies
. . . ." In subparagraph (h),
"100%" density credit is allowed for: "Stormwater
management ponds or basins." In subparagraph (i),
"50%" density credit is allowed for certain
"non-tidal wetlands."

Appellee 852 L.L.C. owns a parcel of
undeveloped land at the intersection of Hampton Highway (Route
134) and Big Bethel Road in York County. The parcel contains
approximately 30 acres with a body of water of about 11 acres
situated in the center. The parcel is zoned "RMF
(residential multi-family)." The landowner plans to
construct a multi-family apartment project on the developable
area.

In 1997, the landowner sought a ruling from the
County’s zoning administrator "about density credit for the
existing lake." The landowner contended it was entitled to
100% density credit under subparagraph (h) of the ordinance.
Responding in a letter dated August 1, 1997, the administrator
decided to "allow a density credit for 5.6 acres of lake
area." According to the administrator, "This allowance
represents an area of 18.6% of the 30-acre site."

The landowner appealed the administrator’s
decision to appellant Board of Zoning Appeals for the County of
York. Following an October 1997 public hearing, the Board adopted
a resolution upholding the administrator’s decision.

The landowner presented to the circuit court,
pursuant to former Code Sect. 15.1-497 (now
Sect. 15.2-2314), a petition for certiorari for review of
the Board’s decision. The court allowed the writ and the Board
timely filed a return, later amended, which included a verbatim
copy of the minutes of the public hearing.

The trial court considered the matter upon the
record without taking testimony and upon argument of counsel in a
March 1998 hearing. At the close of the hearing, the trial court
stated that the language of the ordinance is "clear and
simple," that it was "conceded" the body of water
was a "storm water management" facility, and that the
ordinance required the landowner "be given 100 percent
density allocations." The court said that the Board
"applied erroneous principles of law" and that its
decision "was plainly wrong and in violation of the intended
purpose of the zoning ordinance."

In an April 1998 final decree, the trial court
reversed the Board’s decision and ruled that the landowner be
"granted a density credit equal to 100% of the total acreage
of the lake located on its property." The Board appeals.

On appeal, the Board argues that the ordinance
"is ambiguous when applied to the subject property."
"Unfortunately," according to the Board, "the
ordinance does not clearly provide for density credit
calculations for a pond which is all at once an existing
impoundment of water and a stormwater management facility and
a nontidal wetland." The Board contends, "Some degree
of interpretation is needed to have the ordinance make sense in
the present situation."

The "present situation" to which the
Board refers is that the existence of the body of water in
question is a sequel to mining of the land in the early 1970s to
sell dirt to the "Highway Department." The borrow pit
thus created eventually filled with water that drained from
adjacent properties, as reflected in two recorded drainage
easements, as well as water that drained from the subject
property. In 1996, when the landowner was considering purchase of
the subject property, the U.S. Army Corps of Engineers issued a
notice that the body of water is a nontidal wetland within its
jurisdiction.

During the public hearing, the zoning
administrator articulated the rationale for his decision. He
stated that he "initially took the position that we were
dealing with an existing body of water and our Ordinance is very
clear. It says for an existing body of water you get 0% credit
for density." When the landowner complained this was an
unfair interpretation of the ordinance, the administrator stated
that "in deference" to the landowner’s arguments he was
"willing to look at it as a stormwater management facility;
but not in its entirety, only for that portion that would be
required to meet the stormwater management requirements of this
drainage area." Thus, he arrived at the 18.6% allowance for
the 30-acre site.

The Board argues that the body of water
"will be" used as a stormwater management pond when the
area is developed. "Just as surely," the Board
contends, "it is an existing lake much larger than needed to
contain storm flows" from the landowner’s parcel and from
approximately 15 acres of adjacent land. "No less," the
County continues, "it is a nontidal wetlands within the
jurisdiction of the Army Corps of Engineers."

"And so," the Board argues, "the
resolution of this conundrum cannot arise only from the text of
County Code section 24.1-203 because the pond cannot be afforded
density credits simultaneously of 100 percent, zero percent, and
50 percent. The Zoning Administrator’s proposal, on the other
hand, offers a fair interpretation of the ordinance which
recognizes legitimate development expectations, while protecting
the County from overdevelopment." We disagree with the
Board’s argument.

Certainly, from the County’s perspective the
zoning administrator equitably solved the problem presented in
this case. Nonetheless, his decision extended beyond permissible
ordinance interpretation and became prohibited legislative action
taken by an administrator.

The principles applicable here are settled.
When an ordinance is plain and unambiguous, there is no room for
interpretation or construction; the plain meaning and intent of
the ordinance must be given it. Donovan v. Board of
Zoning Appeals
, 251 Va. 271, 274, 467 S.E.2d 808, 810 (1996);
McClung v. County of Henrico, 200 Va. 870, 875, 108
S.E.2d 513, 516 (1959).

But, a "decision of a board of zoning
appeals is presumed to be correct on appeal to a circuit court;
the appealing party bears the burden of showing that the board
applied erroneous principles of law or that its decision was
plainly wrong and in violation of the purpose and intent of the
zoning ordinance." Masterson v. Board of Zoning
Appeals
, 233 Va. 37, 44, 353 S.E.2d 727, 732-33 (1987).

And, a consistent construction of an ordinance
by officials charged with its enforcement is given great weight.
"Nevertheless, if the administrative interpretation of a
portion of an ordinance is so at odds with the plain language
used in the ordinance as a whole, such interpretation is plainly
wrong, and must be reversed." Cook v. Board of
Zoning Appeals
, 244 Va. 107, 111, 418 S.E.2d 879, 881 (1992).
This is such a case.

We agree with the trial court, and with the
zoning administrator’s observation at the public hearing, that
the language of the ordinance is clear. The ordinance provides
that computation of buildable or developable area
"shall" be determined utilizing the percentages set
forth in the ordinance. Under subparagraph (h), "Stormwater
management ponds or basins" are entitled to a density credit
of 100 percent.

As the trial court found, it was conceded at
the public hearing that the body of water in question presently
is an existing stormwater management facility, receiving runoff
from the subject parcel as well as adjacent properties, and that
it is not a mere pond, lake, or wetland. For example, as the
public hearing began, the Board’s secretary, in summarizing
"the background and factual information" relating to
the landowner’s application stated, "In the current request,
the applicant and the staff agree that the lake serves stormwater
management needs." Also, during the hearing, the zoning
administrator said "we’re willing to look at it as a
stormwater management facility."

In addition, the evidence supported the
concession. The 1996 notice from the Corps of Engineers stated
that the "pond is used for stormwater management."

Therefore, the zoning administrator should have
interpreted the ordinance as written. Nowhere does the ordinance
permit the administrator to allocate a reduced density credit
based on what the administrator and his staff determine is the
appropriate percentage "necessary for a development site
such as the subject property," as the administrator said in
his August 1997 ruling. Had the County Board of Supervisors
intended the administrator to have such latitude, it would have
so provided in the ordinance; such latitude may not properly be
created by administrative interpretation.

Consequently, we hold the trial court did not
err in reversing the Board’s decision that adopted the zoning
administrator’s interpretation. The interpretation was plainly
wrong and the Board applied erroneous principles of law in
adopting it. Thus, the judgment below will be

Affirmed.

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