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LILLY, JR., et al. v. CAROLINE COUNTY, et al.



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LILLY, JR., et al.

v.

CAROLINE COUNTY, et al.


March 3, 2000

Record No. 990746

ALBERT J. LILLY, JR., ET AL.

v.

CAROLINE COUNTY, ET AL.

FROM THE CIRCUIT COURT OF CAROLINE COUNTY

Richard J. Jamborsky, Judge Designate

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.

OPINION BY JUSTICE A. CHRISTIAN COMPTON


In this appeal in a land use controversy, the
issue is whether the trial court correctly ruled that landowners,
aggrieved by a zoning administrator’s oral decision, failed to
exhaust administrative remedies by not filing a timely appeal to
the board of zoning appeals, as required by statute.

The controversy involves the effort to
construct a broadcast studio and office building, a 500-foot
tower, and transmitting facilities for an FM radio station on a
two-acre parcel in rural Caroline County. In April 1998, the
County’s board of supervisors granted a special exception and a
zoning ordinance amendment at the request of those seeking to
establish the business.

In June 1998, appellants Albert J. Lilly, Jr.,
and Judith G. Lilly, owners of realty "in the
vicinity" of the subject property and opponents of the
project, filed the present "Motion for Declaratory
Judgment." Appellees Caroline County; Michael A. Finchum, as
Director of Planning and Community Development and as the
County’s Zoning Administrator; and others (who have not appeared
on appeal) were named defendants. According to the motion, it
"contests . . . the ‘decision’" of the zoning
administrator "in determining that the construction of a
radio tower was a use permitted by right" in the County’s
zoning ordinances. The motion sought various relief, including a
ruling that the zoning administrator’s determination "is
without basis in the zoning ordinance, is contrary to the terms
of the zoning ordinance and is null and void."

The County and Finchum (hereinafter, the
defendants) filed a special plea in bar seeking dismissal of the
motion and asserting that the plaintiffs’ attempt to contest the
decision of the zoning administrator "is time barred."

In an October 1998 bench trial, the court
considered various documents, including copies of minutes of
planning commission and board of supervisors meetings. The only
witness testifying was Finchum, who was called by the defendants.
Following the trial, the court sustained the plea and dismissed
the action in a January 1999 final order, from which we awarded
the landowners this appeal.

There are very few disputed facts. When there
is dispute, however, we will apply settled principles of
appellate review and summarize the facts in the light most
favorable to the defendants, the prevailing parties below.

In 1996, one Walter Abernathy came to Finchum’s
office explaining that he "had been working on trying to get
an application and a permit for a radio station in Caroline
County for several years and inquired as to the permitting
procedure that would be necessary to get a facility at the
location in question." Finchum told Abernathy that he
"thought the tower and the transmitting facilities were
permitted by right under the county’s public utilities definition
of the zoning ordinance, however a broadcast studio and any other
structures would require a text amendment to the zoning
ordinance."

Subsequently, after site plans had been filed
for the tower and for the broadcast studio, Finchum prepared a
text amendment to the ordinance that would permit by special
exception in a rural preservation district the additional use of
a radio/TV studio and office.

At a meeting held on December 17, 1997, the
County’s planning commission held a public hearing on the
proposed amendment and on Abernathy’s application for a special
exception permit that would allow creation of the radio station,
office, and broadcasting studio. During the public hearing, the
question whether construction of the radio tower was a
"by-right" use, permitted under the zoning ordinance
without any special exception permit, was posed by a commission
member to Finchum. He responded "that it is conceivable that
the tower can be placed anywhere without a special exception
permit. He stated that he would research that prior to the next
Planning Commission meeting," according to the minutes of
the meeting.

Both plaintiffs were present at the December
meeting, and Mr. Lilly, an attorney at law, spoke against
construction of the tower. The commission voted to defer action
on the two items until its January 1998 meeting.

During the commission meeting held January 28,
1998, the issue about the radio tower again arose in the context
of the proposed ordinance amendment and application for a special
exception permit. In response to a question from the chairman,
Finchum stated that the tower "is a permitted use by right
within the RP District," according to the minutes of the
meeting.

Both plaintiffs were present at the January
meeting. The commission then voted to forward both items to the
County’s board of supervisors.

During its meeting on February 24, 1998, the
board of supervisors held a public hearing on the two items
related to the proposed radio station. The question whether
construction of the radio tower was permitted under the zoning
ordinance arose again. Responding to a supervisor’s question,
Finchum "stated that he would investigate whether or not the
tower and transmitting facility falls under the ordinance."
The County Attorney then said that such a determination would be
made by the zoning administrator, whose interpretation could be
appealed to the County’s board of zoning appeals.

Both plaintiffs were present at the February
meeting and both spoke against the proposed radio station and
tower. The board deferred action on the proposed zoning ordinance
amendment and special exception application until its next
meeting in March.

At the board meeting on March 10, 1998, action
on the subject items was deferred to allow an absent supervisor
to be present and to vote on the matters.

The board’s next meeting was held on April 14,
1998. During the meeting, Finchum reminded the board that, during
its February public hearing, it had "expressed
concerns" about the "by-right use" issue.

According to the minutes of the meeting, the
zoning administrator stated "that he had determined that the
radio tower was a by-right use in the Rural Preservation zoning
district." The minutes further reflect that Finchum
"explained that the radio tower, but not the office and
broadcasting facilities, could be built on the present site with
or without approval of the special exception request. He added
that his ruling could be appealed to the Board of Zoning
Appeals."

Both plaintiffs were present at the April
meeting. As we previously have noted, the board approved the
zoning ordinance amendment and application for the special
exception permit at that meeting. No one, including the
plaintiffs, appealed the zoning administrator’s April
determination with respect to the radio tower being a
"by-right" use.

The applicable law is clear. "In the land
use context, a landowner may be precluded from making a direct
judicial attack on a zoning decision if the landowner has failed
to exhaust ‘adequate and available administrative remedies’
before proceeding with a court challenge." Vulcan
Materials Co. v. Board of Supervisors
, 248 Va. 18, 23, 445
S.E.2d 97, 100 (1994) (quoting Rinker v. City of Fairfax,
238 Va. 24, 29, 381 S.E.2d 215, 217 (1989)). A zoning
administrator has "all necessary authority on behalf of the
governing body to administer . . . the zoning
ordinance." Code ? 15.2-2286(A)(4). And, a person
aggrieved by any decision of the zoning administrator has the
right to appeal to the board of zoning appeals. Code
? 15.2-2311. If this mandatory appeal is not timely filed,
the administrative remedy has not been exhausted and the zoning
administrator’s decision becomes a "thing decided" not
subject to court challenge. Dick Kelly Enter. v. City of
Norfolk
, 243 Va. 373, 378, 416 S.E.2d 680, 683 (1992).

The focus of this dispute is upon Code
? 15.2-2311(A). As pertinent, that statute provides that an
appeal to the board of zoning appeals "may be taken by any
person aggrieved . . . by any decision of the zoning
administrator." There is no requirement in the statute that
the administrator’s decision be in writing. The statute further
provides that "[t]he appeal shall be taken within thirty
days after the decision appealed from by filing with the zoning
administrator, and with the board, a notice of appeal specifying
the grounds thereof."

The landowners contend the trial court erred in
sustaining the special plea and in dismissing the motion for
declaratory judgment. They argue: That "Finchum’s decision
was made prior to the commencement of the first public hearing of
December 1997"; that the "comments made by Finchum at
public meetings did not constitute notice of the decision";
that they were "not required to appeal a decision to the
board of zoning appeals when such decision was made without their
knowledge and without notice to them"; and that they were
"not required to appeal a ‘decision’ to the board of zoning
appeals which was voiced as to a matter not then pending before
Finchum or [the] County."

We do not agree with any of these contentions.
They are contrary to the evidence in the record and the trial
court’s findings of fact.

The trial court, in sustaining the special
plea, found that a decision was made on April 14, 1998; that the
decision "was communicated to" the landowners, who
"had actual notice of that decision"; and that the
landowners "did not comply with the code." These
findings are based upon credible evidence.

The landowners’ assertion that Finchum’s
decision was made prior to the December meeting has no support in
the record. They argue that Finchum’s testimony shows that
"his decision that the tower was a use permitted by right
was possibly made prior to November 1997, he had so stated to
Abernathy in 1996; the tower site plan was approved November 10,
1997; and the building and zoning permits for the tower, issued
by him or someone at his direction, could have been filed before
December 1997."

However, the evidence is clear that the
"decision" was made at the April meeting, when Finchum
stated "that the radio tower was a by-right use in the Rural
Preservation zoning district." A zoning administrator must
make clear the basis of the decision, see Gwinn v.
Alward
, 235 Va. 616, 622, 369 S.E.2d 410, 413 (1988), and the
foregoing statement complies with that requirement. The intended
finality of that opinion was buttressed by Finchum’s April
statement that his ruling could be appealed to the board of
zoning appeals.

The landowners’ assertion that the decision was
made without their knowledge and without notice to them
completely disregards the fact that they were present at the
April board meeting when Finchum announced his decision. Indeed,
they were present and participated in the December, January, and
February meetings when the radio tower issue was discussed. See
Code ? 15.2-2204(B) (party’s active participation in
proceeding waives right of party to challenge validity of
proceeding due to failure to receive written notice required by
statute). At those meetings, arguably there was no finality to
Finchum’s opinion because, unlike the April meeting, decision on
the issue was deferred until each succeeding meeting.

The landowners’ final assertion that the
decision was rendered in "a matter not then pending
before" the zoning administrator or the County is also
unsupported by the record. At each meeting, the radio-tower issue
arose within the framework and within the context of the proposed
zoning amendment and application for the special exemption.

This fact distinguishes the present case from Vulcan
Materials
, upon which the landowners rely. There, we held
that because no application was pending before any county
administrative department for specific relief, the person was not
"aggrieved" within the meaning of the statute. Thus, we
said, any oral comments by county officials merely were advisory
and no appeal to the board of zoning appeals was required. 248
Va. at 24, 445 S.E.2d at 100. Here, there were applications for
specific relief pending at the time Finchum announced his
decision.

Consequently, we hold that the trial court did
not err in sustaining defendants’ special plea, and the judgment
below dismissing the declaratory judgment motion will be

Affirmed.

 

FOOTNOTES:

[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

 

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