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Zoning – Bed & Breakfast – Injunction – No Appeal

Deborah Elkins//July 6, 2010

Zoning – Bed & Breakfast – Injunction – No Appeal

Deborah Elkins//July 6, 2010

A county zoning administrator may request an injunction against a couple cited for operating a bed-and-breakfast in violation of county zoning ordinances; a Fairfax Circuit Court says although the couple thought they had resolved the issue through discussions with the zoning inspector, they did not appeal the 2008 notice and the county is entitled to partial summary judgment and an injunction.

The B&B owners claim all the violations listed in the March 18, 2008 Notice of Violation were remedied.

They claim that although they advertise three rooms for rent, they limit their occupancy to two rooms, as provided by their room rental license, and that unlike the definition of a B&B, their guests stay for months at a time and are provided cooking and refrigeration facilities.

There is an obvious factual dispute as to the existence of an ongoing wrongful condition, which can only be resolved at trial. The court denies the county’s motion for summary judgment.

The county argues that even if the violation was cleared after receipt of the Notice of Violation, the cessation of illegal conduct does not moot the case. It is significant that the county is not seeking an injunction on traditional equitable grounds. Rather, it seeks to invoke the provisions of Va. Code §§ 15.2-2286(A)(4) and 15.2-2208(A). Given that these statutes expressly provide for injunctive relief for the violation of a zoning ordinance, all that is required by the county in this case is proof of a violation. A Notice of Violation was issued to the owners on March 18, 2008, and it was not appealed.

The fact that they were in violation of a zoning ordinance is a thing decided. The county has shown all that is required for entry of a prohibitory injunction.

McLane, Fairfax County Zoning Adm’r v. Clark (Bellows, J.) No. 2010-346, June 14, 2010; Fairfax Cir.Ct.; Paul T. Emerick, Ass’t County Att’y; Paul M. Clark Sr., pro se. VLW 010-8-118, 5 pp.

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