Va. Cir.: No violation for “use” when rule targets “facilities”

A property owner couldn’t be convicted of providing free waterskiing lessons to disabled veterans without having obtained a conditional use permit, as the cited zoning ordinance spoke to recreational “facilities” rather than uses.

Background

Defendant Witchduck Lake Enterprises Inc. is on trial for charges of violating zoning requirements of Virginia Beach’s City Code Appendix A, Article 5, § 501. The charges pertain to “recreational use of an outdoor nature” in a residential neighborhood without a conditional use permit. The facts are not contested.

The property at issue is located on a lake, and Witchduck operates motorized watercraft and jet skis from where its property accesses the lake. Witchduck provides free waterskiing lessons to disabled individuals, mainly military veterans. Zoning Administrator Kemp determined that these activities constituted “recreational use of an outdoor nature” that required a conditional use permit and thus issued a Notice of Violation directing Witchduck to cease these activities. Witchduck appealed the notice, but then withdrew the appeal.

“Thing decided” doctrine

The City asserts that Witchduck’s failure to appeal the notice makes the issue a binding “thing decided” under Lilly v. Caroline County, 259 Va. 291 (2000). But Lilly was decided in the context of a declaratory judgment action challenging the decision of a zoning administrator, and the City cites no authority for applying the “thing decided” doctrine to a criminal matter.

To the contrary, Virginia law appears to allow Witchduck to challenge the Administrator’s interpretation of the City ordinance in this criminal proceeding. In Miller v. Commonwealth, No. 2971-02-2, (Va. App. Feb. 15, 2005), a criminal defendant who had not properly appealed a zoning violation was not precluded from challenging the validity of the zoning ordinance as part of his defense. Miller relied on McKart v. United States, 395 U.S. 185 (1969), where the U.S. Supreme Court reasoned that exhaustion didn’t always outweigh the burden imposed on a criminal defendant.

McKart is fully applicable here. Resolution of this matter involves a purely legal issue, and the City isn’t limited to criminal enforcement of zoning ordinances. Therefore, the court will consider the defendant’s argument that he did not violate the ordinance.

“Recreational facilities” violation

The ordinance at issue provides a chart for permitted uses in the residential district  at issue, designating listed uses as principal, conditional, or prohibited. Witchduck was charged under § 501(a) with having “recreation and amusement facilities of an outdoor nature” without a required conditional use permit, based on the use of motorized water craft and jet skis on Lake Witchduck pursuant to an advertised event.

If an ordinance is administratively interpreted in a way that is so at odds with the plain language used in the ordinance as a whole, that interpretation is plainly wrong. Merriam-Webster defines “facility” as “something (such as a hospital) that is built, installed, or established to serve a particular purpose.” This meaning is consistent with how the Supreme Court of Virginia interpreted the term in Lostrangio v. Laingford, 261 Va. 495 (2001 ). There, the court held that a “facility” is something “that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.” By contrast, an “event” in that case was held to be “something that happens … a noteworthy occurrence or happening.”

Thus, a “facility” is a tangible thing that is “built, constructed, installed, or established.” Boating and water skiing do not fit within these descriptives, but rather are more akin to “events.”

Other examples of “recreational facilities” provided in the City’s zoning ordinance all involve things that have been constructed, not just activities that individuals are engaging in. Those provisions are distinct from those related to permissible uses, demonstrating that boating (and consequently, water skiing) is considered a recreational activity, not a recreational facility.

The City has failed to prove that Witchduck violated zoning ordinances requiring a conditional use permit for “recreational facilities of an outdoor nature.”

City of Va. Beach v. Witchduck Lake Enters. Inc., Case No. CR17-3044, May 2, 2018. Va. Beach Cir. Ct. (O’Brien). Tobias L. Eisenlohr for Commonwealth; Kevin E. Martingayle for Defendant. VLW No. 018-8-041, 5 pp.