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Tax payments did not create right to illegal property use

Virginia Lawyers Weekly//January 12, 2019

Tax payments did not create right to illegal property use

Virginia Lawyers Weekly//January 12, 2019//

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The circuit court incorrectly ruled that respondent property owners who paid property taxes for more than 15 years acquired a vested right to continue their illegal use of two buildings.

Code § 15.2-2307(D) provides that buildings or structures may not be declared illegal or subject to removal after the owner has paid taxes for 15 or more years. However, the statute does not provide a vested right to use a building or structure in a particular way.


In 1998, Douglas and Kathryn Cohn bought real property with three structures on it: the main house, the garage and the garden house. The property is zoned R-1, which permits only one dwelling on the property.

The building permits for the garage and garden house, built in 1963 and 1972, respectively, specified that kitchens and bathrooms were not approved for these structures. The garage was built with a connection to the main house’s septic system and the garden house was built with its own septic system.

The Cohns had previously rented the main house, built in 1962, and say that the garage and garden house were also being rented at that time.

In 2016, the county zoning administrator issued a notice of violation for the garage and garden house because they had been converted to dwellings. The Cohns were ordered to remove the kitchens, appliances and all of the plumbing, electrical and gas piping from the two structures. The Cohns appealed the violation notice to the Fairfax County Board of Zoning Appeals.

At the hearing, evidence was presented that in 2008, as the result of a visual inspection of the Cohn’s neighborhood by tax officials and conversation with the Cohns, the tax department learned of the kitchen and bathroom improvements and classified the two structures as dwellings. The tax assessments on the two structures, however, did not change.

The Cohns admitted the garage and garden house did not “conform to the original building permits” and that it was likely that use of the two structures as dwellings “was established unlawfully.”

But they argued that under Code § 15.2-2307(D), because they had paid taxes on the property for more than 15 years, the buildings and structures on the property, and their uses, were protected from being declared unlawful.

The BZA upheld the violation notice. In the circuit court, the Cohns renewed their argument that under the statute, their tax payments for more than 15 years prevented the county from declaring that the structures were being used illegally.

They noted that the assessed value of the property remained unchanged regardless of how the garage and garden house were classified, which showed that they had paid taxes on those structures before and after they were classified as dwellings.

The circuit court ruled that the statute protects “nonconforming uses from future zoning amendments so long as taxes have been paid on the property[.]” The court found that the garage and garden house had been used as dwellings since 1998 and the Cohns had paid taxes on the property and thus were protected from “having to destroy or otherwise modify the structures.”

The circuit court reversed the BZA and denied the BZA’s motion to reconsider.

Not nonconforming use

The court agrees with the BZA that the circuit court improperly interpreted the statute.

Code § 15.2-2307 was enacted “to prevent the impairment of vested rights in a landowner’s use of their property. The statute distinguishes between the rights to the use of land, structures, and buildings, and the right to maintain buildings and structures on land.”

The Cohns’ use of the garage and garden house as dwellings is not a nonconforming use of their property under Code § 15.2-2307(C). “A nonconforming use of a building or structure is, generally, a lawful use [of a building or structure] existing on the effective date of the zoning restriction and continuing since that time in non-conformance to the ordinance. … A nonconforming use may not be established through a use of land which was commenced or maintained in violation of a zoning ordinance.’”

The garage and garden house were built after the single-dwelling zoning restriction was in place. Further, the two structures were not “permitted by the County to be used as dwellings but rather as a garage and garden house.” In fact, the building permits forbid kitchens or bathrooms. The kitchens and bathrooms “were admittedly installed in violation of the zoning ordinance.”

Uses unprotected

The Cohns argue that the circuit court correctly ruled that Code § 15.2-2307(D) protects the garage and garden house’s physical structure and their use as dwellings. The court disagrees.

“Code § 15.2-2307(D) ‘demonstrates the General Assembly’s intent to forbid local governments from declaring an existing building or structure illegal after taxes have been paid for 15 years or more. … It does not mention the vesting of the right to use a building or structure in a particular way.’”

Under the statute’s plain terms, the physical structure is protected. “While a ‘building’ or ‘structure’ may be constructed for a use or purpose, the use or purpose is not the building itself.”

The circuit court’s judgment is reversed and the zoning board’s determination is reinstated.

Board of Supervisors of Fairfax County v. Cohn, et al. (Goodwyn) Record No. 171483, Dec. 13, 2018; Fairfax County Cir. Ct. Elizabeth Doyle Teare, Thomas David Stoner, Sarah Anne Hensley for Appellant, John Lee McBride, Sally Ann Hostetler, Margaret McCallum Marks for Appellee. VLW 018-6-091, 12 pages.

VLW 018-6-091

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