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HIGGS, et al. v. KIRKBRIDE, et al.



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HIGGS, et al.

v.

KIRKBRIDE, et al.


November 5, 1999

Record No. 990006

MICHAEL HIGGS, ET AL.

v.

MICHAEL AND DELORES KIRKBRIDE

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Benjamin N.A. Kendrick, Judge

Present: All the Justices

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.


November 5, 1999

Record No. 990073

ARLINGTON COUNTY BOARD OF ZONING APPEALS

v.

MICHAEL AND DELORES KIRKBRIDE

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY

Benjamin N.A. Kendrick, Judge

Present: All the Justices

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.


The issue presented by these appeals, which we
consolidated for argument, the primary issue we consideris is
whether the trial court erred in reversing a decision of a local
board of zoning appeals acted within its discretion in
determining that an "in-fill" that a lot created by the
"pipestem subdivision" of an existing residential lot
wais irregularly shaped and, thus, doesid not have a sufficient
average width for the zone in which the lot isit was located.

BACKGROUND

The dispositiveprincipal facts are not in
dispute. Michael L. Kirkbride and Delores A. Kirkbride (the
Kirkbrides) are the owners of Lot 11, commonly known as 6226
North 23rd Street, in the Fenwick & Lutrell’s Addition
of East Falls Church in Arlington County. Lot 11 is
quadrilateral, roughly trapezoidal in shape, with a 100.09-foot
front lineage on North 23rd Street. The lot is approximately 200
feet deep.; bBecause the eastwest lot line is slightly askew from
the perpendicular to the front lot line, the lot narrows to a
parallel back lot line of 90.37 feet. Lot 11 is located in an R-6
zone, in which, pursuant to the local zoning ordinancerelevant to
this appeal, a lot must consist of not less than 6,000 square
feet and have an average width of at least 60 feet.

On November 19, 1997, a preliminary plat
subdividing Lot 11 was approved by the Arlington County zZoning
aAdministrator’s oOffice. That subdivision created two lots:
Lot 11-A and Lot 11-B. Lot 11-A, which is the lot at issue in
this appeal, includes the original residence on the former Lot 11
and comprises the northeastsouthwest corner of the original lot.
To complete the subdivision, the Kirkbrides would be required to
remove a sunroom porch on the westeast side of the residence in
order to comply with setback regulations.

Lot 11-A is quadrilateral with no parallel
sides and no congruent angles. It has a southern frontagenorthern
front line on North 23rd Street of 60.04 feet. The eastwest lot
line of Lot 11-A is parallel to the original eastwest lot line of
the former Lot 11 and, thus, is slightly askew from the
perpendicular to the front lot line. As a result, the lot narrows
to less than 60 feet immediately beyond the front lot line. At a
depth of 120105.16 feet on the eastwest lot line, the northsouth
lot line is set at approximately a 45-degree angle to the
northwestsoutheast, creating a northsouth lot line of 731.60 feet
and an east west lot line of 16950.94 feet. Lot 11-B consists of
the remainder of the original lot.,with a 40-foot frontage on
North 23rd Street that continues to a depth of 120 feet, a
"pipestem," where the lot broadens to encompass the
rear 80 feet of the original lot In these configurations, each
lot consists of more than 6,000 square feet as required in the
R-6 zone.

According to measurements taken by the surveyor
who prepared the subdivision plat, each lot had an average width
in excess of 60 feet and consisted of more than 6,000 square feet
when applying the formula for lots with an identifiable rear lot
line under the applicable zoning ordinance. [See Plat at
App. I-96.]

After the Zoning Administrator issued her final
approval of the subdivision plat, Michael and Mary Lou Higgs,
Hans and Rebecca Salzinger, Aida Morales, William and Virginia
King, and Stephen and Susan Slye (the neighbors) whoseown
properties on North 23rd Street that adjoin or are near the
former Lot 11. After the zoning administrator approved the
subdivision plat, the neighbors, filed a petition with the
Arlington County Board of Zoning Appeals (the BZA) challenging
the zZoning aAdministrator’s determination that Lot 11-A
conformed to the minimum width requirements for the R-6 zone.
[1] The neighbors contended that Lot
11-A is irregularly shaped and, thus, the zZoning aAdministrator
had erred in accepting the calculation the average width of Lot
11-A as if it were a regularly shaped lot, thus by permitting the
northsouth lot line to be used as the rear lot line one of the
measuremin the measurements for determining the average width of
the lot as if Lot 11-A were a regularly shaped lot. The neighbors
further contended that by calculatingbecause the rear lot line
was set at an angle and the lot was otherwise not symmetrical,
the average width should have been calculated in the manner
applicable to irregularly shaped lots,, Lot 11-A resulting in has
an average lot width of only 48.11 feet.

In defending the appeal before the BZA, the
Kirkbrides relied upon the zZoning aAdministrator’s
interpretation of the the zoning ordinance.nce at issue,
Arlington County Zoning Ordinance 90-14. In its definitions
section, Tthe ordinance sets out the method for determining the
average width of a lot, the "rear lot line" being one
of the measurements used in that determination. from the lengths
of the front and rear lot lines and two other lines, each
twenty-five feet from and parallel to the front and rear lot
lines respectively. The ordinance defines the front lot line
as"[t]hat lot line fronting a street of the legally required
access to the lot." Thethe rear lot line is defined as
"[t]hat lot line which is the most distance from, and the
most nearly parallel with, the front lot line. In the case of a
triangular or otherwise irregularly shaped lot, a line at least
ten (10) feet in length entirely within the lot and parallel to
and at a maximum distance from the front lot line."

The Kirkbrides contended that the northsouth
lot line of Lot 11-A wasis the clearly identifiable as the rear
lot line as defined by the ordinance because the south lot line
is. They further contended that the Zoning Administrator had
consistently interpreted the ordinance’s definition of a
rear lot line as the the "line which is the most distance
from, and the most nearly parallel with, the front lot
line." They further contended that the zoning administrator
has consistently interpreted this definition of a rear lot line
in the ordinance as applying to any quadrilateral lot. Finally,
the Kirkbrides correctly noted that using this interpretation
results in a determination that Lot 11-A satisfies the
requirement of having an average width of at least 60 feet.

The BZA determined that Lot 11-A isIn
discussion of the issue, individual BZA members ex
"irregularly shaped," and consequently, using the
10-foot measurement for the rear lot line specified in the
ordinance, that Lot 11-A fails to meet the minimum average lot
width required by the ordinance for the R-6 zone. in
consideration of the character of the other lots in the area.
Moreover, the board members expressed the view that the intent of
the ordinance, as expressed in its plain language, was to limit
"in-fill" where it would detract from the character of
the neighborhood. TAccordingly, the BZA voted unanimously to
overturnreverse the zZoning aAdministrator’s determination.

The Kirkbrides petitioned the Circuit Court of
Arlington County for a writ of certiorari to review the decision
of the BZA, which the trial court granted on. On May 8, 1998.
Thereafter, the trial court granted the neighbors’ petition
to intervene.

While the certiorari proceeding was pending,
the Arlington County Attorney, representing the BZA, sought to
have a memorandum placed in the County’s land records
voiding the approved subdivision plat on the ground that the
challenge to the zoning administrator’s preliminary
determination that Lot 11-A was not an irregularly shaped lot
prohibited finalizing the approval process for the subdivision.
The Kirkbrides sought an injunction from the trial court
prohibiting this action prior to the resolution of the certiorari
proceeding. The County Attorney and the Kirkbrides reached an
agreement that the proposed memorandum would state that the
subdivision "may" be void, subject to the outcome of
the certiorari proceeding. The trial court memorialized this
agreement in an order, and found that as a result the need for an
injunction had been mooted.

On September 3, 1998, the trial court heard
argument from the parties on the merits of the case. Essentially,
the parties took the same positions they had taken before the
BZA. The Kirkbrides again contended that since Lot 11-A is
quadrilateral, it is not "triangular or otherwise
irregularly shaped" as provided in the zoning ordinance.
This is so, they contended, because the south lot line of the lot
is "the most distance from, and the most nearly parallel
with, the front lot line" and, thus, is the "rear lot
line" as defined by the ordinance for purposes of
determining the average width of the lot. The Kirkbrides also
presented exhibits from the zoning appeal purporting to show that
there are other similarly subdivided lots in Arlington County and
that the zoning administrator had consistently treated any
quadrilateral lot as having an identifiable rear lot line even if
the rear lot line was significantly out of parallel with the
front lot line. In addition, the Kirkbrides noted that the trial
court had affirmed a decision of the BZA in an earlier certiorari
proceeding where the BZA had affirmed the zoning
administrator’s determination that a lot with a similarly
angled rear lot line was regular in shape.

The BZA and the neighbors contended that the
BZA was not bound by prior actions of the zoning administrator.
The BZA further contended that its determination in the present
case could be distinguished from the zoning administrators’
approval of other quadrilateral lots, including the lot at issue
in the prior certiorari proceeding cited by the Kirkbrides,
because in each of those instances the side lot lines were
parallel and perpendicular to the front lot lines. The BZA noted
that here the west lot line diverges from the perpendicular and,
thus, Lot 11-A is in no way symmetrical.

At the conclusion of the argument, the trial
court indicated that it would reverse the decision of the BZA as
"plainly wrong and I think what’s been going on for the
last decade should continue unless the [C]ounty [B]oard [of
Supervisors] changes it." Prior to the entry of a final
order, the trial court heard argument on a joint motion to
reconsider. At that hearing, the neighbors contended that the
trial court had applied an improper standard of review in
rendering its decision, asserting that the trial court could not
substitute its own definition of "irregularly shaped"
if "reasonable people can say that’s an irregular lot,
which the BZA has found." The BZA asserted that the trial
court had erred in giving deference to the determination of the
zoning administrator rather than to the determination of the BZA.
The trial court denied the motion to reconsider.

In the final order, the trial court reversed
the decision of the BZA, stating that the decision was
"plainly wrong" and that the BZA had "applied
erroneous principles of law." The order goes on to state
that because Lot 11-A conforms to the R-6 zone requirements, the
subdivision plat "is a valid and legal subdivision of the
property." The BZA and the neighbors recorded lengthy
objections on the final order, referencing their arguments at the
original hearing and at the hearing on the motion to reconsider.
The BZA further objected that the validity of the subdivision
plat was not properly before the trial court. We awarded appeals
to the BZA and the neighbors.
[2]

DISCUSSION

In considering these appeals, we are guided by
well-established principles of law. On review before the trial
court, the decision of a board of zoning appeals "is
presumed to be correct and can be reversed or modified only if
the trial court determines that the BZA applied erroneous
principles of law or was plainly wrong and in violation of the
purposes and intent of the zoning ordinance" and "[t]he
party challenging the BZA’s decision has the burden of proof
on these issues." Foster v. Geller, 248 Va. 563, 566,
449 S.E.2d 802, 804-05 (1994); see also Board of Zoning
Appeals v. 852 L.L.C
, 257 Va. 485, 489, 514 S.E.2d 767, 770
(1999); Masterson v. Board of Zoning Appeals, 233 Va. 37,
44, 353 S.E.2d 727, 732-33 (1987).

In addition, the principles relevant to the
construction of a zoning ordinance, whether by a court or by a
board of zoning appeals, are also well-established. In
considering the deference which must be afforded to zoning
officials in such cases, we have said that while "statutes
and ordinances delegating zoning authority may be broadly
construed to prevent zoning officials from becoming unnecessarily
hamstrung in their efforts to enforce zoning ordinances,
administrative zoning actions must be grounded within the
statutory framework provided." Foster, 248 Va. at
569, 499 S.E.2d 806 (citations omitted). In doing so, "[t]he
words of the ordinance are to be given their plain and natural
meaning. The purpose and intent of the ordinance should be
considered but the ordinance should not be extended by
interpretation or construction beyond its intended purpose."
Donovan v. Board of Zoning Appeals, 251 Va. 271, 274, 467
S.E.2d 808, 810 (1996) (citations omitted).

The parties agree that the zoning ordinance at
issue here is unambiguous. Accordingly, the efforts of all the
parties, but those of the Kirkbrides particularly, in the
hearings before the BZA, in the trial court, and on appeal, to
rely upon or distinguish prior interpretations of the ordinance
and its legislative history are irrelevant to the issue that was
before the BZA and the trial court, and is now before this Court
on appeal. See Town of Blackstone v. Southside Elec.
Cooperative.
, 256 Va. 527, 533, 506 S.E.2d 773, 776 (1998)
("When considering a legislative act, a court may look only
to the words of the statute to determine its meaning, and when
the meaning is plain, resort to rules of construction,
legislative history, and extrinsic evidence is
impermissible").

Nor do the parties contest the mathematical
results of the two differing methods for determining average lot
width under the ordinance.
[3] Rather, the sole issue before the
BZA was whether the zoning administrator erred in not treating
Lot 11-A as an "otherwise irregularly shaped lot."
Similarly, the BZA’s action in reversing that decision of
the zoning administrator was the sole issue before the trial
court, and its review of that decision was subject to the
standard of deference and presumption of correctness set out
above.

The ordinance provides no definition for
"otherwise irregularly shaped lot," and therefore we
must ascribe to the words their usual meaning.
"Irregular" means "failing to accord with what is
usual . . . lacking perfect symmetry of form." Webster’s
Third New International Dictionary
1196 (1993). It is clear
from the definition of a rear lot line as the "line which is
the most distance from, and the most nearly parallel with,
the front lot line," that a lot need not be perfectly
symmetrical in order to have an identifiable rear lot line.
However, it is equally clear that, by inclusion of a separate and
distinct provision for determining and limiting the length of the
"rear lot line" for a lot "otherwise irregularly
shaped," the legislative intent of the zoning ordinance is
to assure a minimum average width and consistency among all lots
in a particular zone.

Lot 11-A is 60 feet in width at no point other
than at its front lot line. Only by virtue of the elongated south
lot line being treated as the "rear lot line" can the
lot achieve the necessary minimum width required for a lot in the
R-6 zone. Moreover, in light of Lot 11-A’s patent lack of
symmetry, we hold that the BZA’s determination that it is
"irregularly shaped" was based on a sound reading of
the ordinance under appropriate principles of law, is supported
by the record and, therefore, is not plainly wrong or in
violation of the purpose and intent of the ordinance. The trial
court erred in holding to the contrary.
[4]

Finally, we consider the BZA’s assertion
that the trial court erred in declaring the previously recorded
subdivision plat to be valid. We will assume, without deciding,
that this issue was properly before the trial court as a result
of the agreement between the County Attorney and the Kirkbrides
to have the conditional memorandum recorded in the land records
pending the outcome of the certiorari proceeding. It is
self-evident that our resolution of the main issue presented by
this appeal negates the effect of the trial court’s ruling
that the subdivision plat is valid. Therefore, we will direct the
parties to correct the land records in a manner consistent with
this opinion.

CONCLUSION

Accordingly, and for these reasons, we will
reverse the judgment of the trial court and enter final judgment
in favor of the BZA and the neighbors.

Reversed and final judgment.

 

FOOTNOTES:

[1] No challenge was asserted against
Lot 11-B.

[2] Stephen and Susan Slye are not
parties to the neighbors’ appeal.

[3] For reasons not made clear in the
record, at least three different plats of the subdivision, with
slight discrepancies in the lengths of the lines of Lot 11-A,
were submitted during the proceedings below. These discrepancies
have no effect on our consideration of the issues in these
appeals.

[4] The BZA and the neighbors
contend that the trial court erred by holding the BZA had failed
to give deference to the zoning administrator’s
determination that under the ordinance the south lot line of Lot
11-A constituted the rear lot line. It is not clear that the
trial court so held. Accordingly, we simply note that the power
of the BZA to review the decisions of a zoning administrator is
provided for under Code ? 15.2-2309(3). "In exercising its
powers the board may reverse or affirm, wholly or partly, or may
modify, an order, requirement, decision or determination appealed
from." Code ? 15.2-2312. It is an appropriate function of
the board to reverse a decision of a zoning official where the
board determines that the decision is contrary to the plain
meaning of the ordinance and the legislative intent expressed
therein. The board owes no deference to the zoning official in
that circumstance.

 

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