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BOARD OF ZONING APPEALS OF THE CITY OF NORFOLK v. KAHHAL, ET AL.


BOARD OF ZONING APPEALS
OF THE CITY OF NORFOLK v. KAHHAL, ET AL.


April 17, 1998
Record No. 971655

BOARD OF ZONING APPEALS OF
THE CITY OF NORFOLK

v.

MEHRI KAHHAL, ET AL.

OPINION BY JUSTICE ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

John C. Morrison, Jr., Judge
Present: All the Justices


In this appeal, we consider whether the circuit court erred in
reversing the decision of a board of zoning appeals because the
board applied erroneous principles of law.

Mehri Kahhal and Mahmoudi Zarandi (collectively, the owners)
purchased property located at 4000 Parker Avenue in the City of
Norfolk, in 1990. The property was zoned for commercial use. The
owners leased the property to Frederick Holloway, who held a
business license from the City to operate "D&H
Grocery." In 1992, the City rezoned the property for
residential use. However, the zoning ordinance allowed
nonconforming uses to continue subject to ? 12-9 of the
ordinance. That section provides:

If a nonconforming use is discontinued for a period of two
years, then that use shall not be renewed or reestablished and
any subsequent use of the lot or structure shall conform to the
use regulations of the Zoning District in which it is located.

In 1994, following a fire in the store, Holloway abandoned his
lease. He surrendered his business license on June 16, 1994. The
owners decided to operate the grocery store themselves and
secured a loan to finance the necessary repairs to the property.
On October 9, 1995, the City issued the owners a business license
to operate a grocery store on the property. That same day, the
owners also paid a meal tax cash bond to the City in the amount
of $300. A second business license was later issued with an
expiration date of December 31, 1996.

On February 9, 1996, the owners obtained a building permit
from the City to repair the property, and the City subsequently
issued permits for electrical and plumbing work. City inspectors
approved the repair work on a number of occasions from June
through August of 1996. On August 21, 1996, the owners received a
Notice of Zoning Violation from the zoning inspector informing
them that the property could not be used as a grocery store
because it had lost its nonconforming use status.

The owners appealed to the Board of Zoning Appeals (the
Board). At the public hearing, the zoning administrator testified
that the property had lost its nonconforming use status on June
16, 1996, pursuant to ? 12-9 of the zoning ordinance,
because it had not been operated as a grocery store for a period
of two years. The administrator measured the two-year period from
the date the owners’ lessee had surrendered his business license.
The administrator also testified that, at the time the building
permit was issued, the owners were told that the business had to
be in operation by June 16, 1996.

The owners presented evidence of the repair and renovation
work they had done on the property, as well as the business
licenses, building permits, and inspection approvals they had
received from the City. They denied they were told that they had
to be operating the business by June 16. A number of neighborhood
representatives testified both for and against the owners. One
resident of the neighborhood, Mr. Isaiah Rogers, testified that
the property had not been used as a grocery store since
"about ’88, something like that."

The Board upheld the zoning administrator’s decision. The
owners filed a petition for a writ of certiorari with the circuit
court arguing that the Board applied erroneous principles of law
in making its decision. The circuit court did not take additional
evidence, but relied on the record of the hearing before the
Board and argument of counsel.

The owners argued, as they had before the Board, that
continuation of the nonconforming use under ? 12-9 is not
limited to the actual operation of the "use," but
includes preparatory actions such as securing financing to repair
the property, paying the meal tax bond, and getting business
licenses as well as building permits. They asserted that, even
though ? 12-9 is silent as to its scope, other sections of
the zoning ordinance support their interpretation of
? 12-9.

The owners pointed to ? 12-8 of the ordinance, which
allows restoration or reconstruction of a nonconforming use in
the event of a fire as long as the owners diligently prosecute
the repairs to completion. This provision, they argued, not only
is applicable to their specific situation because of the 1994
fire, but it also shows that actual operation is not a
prerequisite for avoiding a determination that a nonconforming
use has been discontinued. Similarly, the owners suggested that
the definition of "used or occupied" as "intended,
designed or arranged to be used or occupied" in
? 1-4.8 of the ordinance is consistent with their
interpretation of ? 12-9. This definition is relevant, the
owners argued, because ? 1-4 of the zoning ordinance, which
includes ? 1-4.8, states that "[t]he regulations
contained in this ordinance shall be interpreted and applied in
accordance with the general rules set out in this section."
Finally, the owners claimed that the Black’s Law Dictionary
definition of "discontinuance" – an ending, causing to
cease, ceasing to use, giving up — supports their position that
a nonconforming use is not abandoned or discontinued as long as
affirmative actions are ongoing to recommence the operation.
Black’s Law Dictionary 464 (6th ed. 1990).

The circuit court agreed with the owners and concluded that,
under ? 12-9, neither continuation nor abandonment of a
nonconforming use is contingent upon actual operation of the use.
Because the Board’s decision was premised on the principle that a
nonconforming use is "discontinued" on the date the use
ceases to be in actual operation, the circuit court concluded
that the Board applied an erroneous legal principle. Applying
what it considered the correct principle, the circuit court held
that the activities of the owners at the time the City issued the
building permit did not constitute "discontinuation" of
the nonconforming use. Therefore, the circuit court concluded
that the property retained its nonconforming use status because
the use had not been discontinued for a period of two years, and
entered an order reversing the decision of the Board.

In this appeal, the Board seeks reversal of the circuit
court’s judgment and reinstatement of its decision, asserting
that the circuit court erred in ignoring the testimony of the
neighborhood resident who said there was no grocery store in
operation since "about ’88;" in improperly relying on
the issuance of the building permit because the permit was
improvidently or erroneously granted; and by relying on
? 1-4.8 of the zoning ordinance because that section was
not "argued before the Board" and is "irrelevant
to the issues in this case." Finally, the Board asserts that
its decision should be reinstated because the circuit court erred
in failing to accord the decision of the Board a presumption of
correctness. None of these challenges is well taken.

First, the Board’s decision was based on the initial
presumption that the nonconforming use was operational until just
prior to June 16, 1994, the date the owners’ lessee surrendered
his business license. By adopting this position, the Board
implicitly rejected the testimony that the grocery store was not
operational since sometime around 1988. The circuit court was not
required to afford such testimony more weight than that given it
by the Board.

Next, whether the building permit was improvidently or
illegally granted in February 1996 because the use was
discontinued at an earlier date, as now asserted by the Board, is
not determinative. The issue before the Board and the circuit
court was whether the owners’ actions constituted discontinuation
of the nonconforming use under ? 12-9 of the zoning
ordinance. That same issue would have arisen if the City had
denied the building permit on the basis that the nonconforming
use had been discontinued. The owners were already engaged in
activities directed to reopening the grocery store, such as
obtaining financing, securing business licenses, and paying the
meal tax bond. Thus, had the building permit been denied, the
same legal question could have been raised.

We also reject the Board’s contention that the circuit court
erred in considering other sections of the zoning ordinance,
specifically the definition of "used or occupied" in
? 1-4.8. The circuit court did not apply this
definition to ? 12-9. Rather it looked to this section and
others in the ordinance to determine the purpose and intent of
the zoning ordinance, specifically ? 12-9. This reference
to other provisions in pari materia with the
section at issue is an accepted method of statutory construction
and did not constitute error by the circuit court. See Prillaman
v. Commonwealth
, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8
(1957).

Finally, we reject the Board’s assertion that the circuit
court erred by failing to extend the presumption of correctness
to the Board’s decision. It is well established that the decision
of a board of zoning appeals is presumed to be correct and will
be reversed or modified only if the board applied erroneous
principles of law or was plainly wrong and in violation of the
purpose and intent of the zoning ordinance. Foster v. Geller,
248 Va. 563, 566, 449 S.E.2d 802, 804-05 (1994). Furthermore,
great weight must be given to the consistent construction of an
ordinance by the official charged with enforcing the ordinance. Cook
v. Board of Zoning Appeals of the City of Falls Church
, 244
Va. 107, 111, 418 S.E.2d 879, 881 (1992).

In support of its position, the Board only points again to
those actions of the circuit court to which it assigned error:
ignoring the testimony of the neighborhood resident, relying on
the issuance of the building permit, and referring to other
sections of the zoning ordinance in interpreting ? 12-9. We
have already held that the circuit court did not err in any of
these particulars and we find nothing else in the record to
suggest that, in reaching its decision, the circuit court ignored
any of the principles which govern its review of the Board’s
decision in this case.[1]

Accordingly, for the reasons stated, we will affirm the
decision of the circuit court.

Affirmed.

 

 

 

 

FOOTNOTES:

[1]
We are not called upon to consider whether the circuit court’s
interpretation of ? 12-9 is correct because the validity of
that interpretation was not the subject of an assignment of
error.

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