Zoning – Zoning Violation – Scooter Sales & Repair

A Norfolk Circuit Court upholds the Board of Zoning Appeals’ determination that appellant violated Norfolk Zoning Code § 6-1.2, which bars the sale and repair of automobiles in a C-1 limited commercial zone, by selling mopeds from his property.

Norfolk Zoning Ordinance § 2-3 defines “automobile” as any vehicle propelled by its own motor and operating on ordinary roads. The term includes passenger cars, trucks, motorcycles, motor scooters, motorized bicycles and the like. Because Zoning Code § 6-1.2 does not provide for a Permitted use or Special Exception Use for “automobile” sales and service or repair, the zoning administrator denied appellant’s request to sell mopeds in the C-1 zoning district.

The court holds first that the appeal was timely. The board was properly substituted and the amended complaint relates back to the date of the original filing. The claims against the city and the board arose out of the same occurrence – appellant’s appeal from the zoning administrator’s decision regarding his zoning violation – and the board, or its agent, the city attorney’s office, received notice of the appeal within the limitation period. When appellant named the city as the defendant in his original appeal, the city attorney’s office, as the city’s legal representative, was served with the petition.

The board has not demonstrated that it will suffer any prejudice in maintaining a defense, and because appellant stated in his original appeal that he was appealing the City of Norfolk Board of Zoning Appeals’ decision, the board should have known that but for the mistake, the board would have been the named defendant.

On the merits, appellant argues the Norfolk City ordinance is null and void because it is overbroad, fails to distinguish between automobiles and mopeds and conflicts with state and city law. Neither the Virginia Code nor the Norfolk City Code contains a definition for “automobile.” The state and city code both use the term “motor vehicle,” which each defines as a “vehicle…that is self-propelled or designed for self-propulsion except as otherwise provided in “this title.” The statutes, Va. Code § 46.2-100 and Norfolk City Code § 25-2, specifically exclude “moped” from this definition and define “moped” as a vehicle that travels on nor more than three wheels in contact with the ground, that has a seat no less than 24 inches in height, and a gasoline, electric or hybrid motor that displaces less than 50 cubic centimeters.

Because neither city nor state law contains a definition of “automobile” as used in the zoning ordinance, and because the statutes classify mopeds as vehicles when used on highways, the zoning ordinance’s classification of a moped as an “automobile” for purposes of the zoning code is not inconsistent with city or state law.

The board’s finding of a violation is affirmed.

Coston v. Norfolk Board of Zoning Appeals (Poston, J.) No. CL 09-4637, Sept. 1, 2010; Norfolk Cir.Ct.; Adam D. Melita, City Att’y Office; Carl C. LaMondue for the parties. VLW 010-8-183, 5 pp.