Council member can appeal zoning decision

The ruling of a Petersburg judge may have opened opportunities to challenge local land use decisions in Virginia.

The circuit judge said a Petersburg city councilman had standing as an “officer” of the locality to appeal the decision of the city’s zoning administrator.

No other Virginia court has addressed whether an elected official could be considered an “officer” with standing to challenge a zoning administrator’s action, according to Charles H. Cuthbert Jr., the Petersburg lawyer and city councilman who raised the issue.

The ruling from Judge Joseph M. Teefey Jr. is In re: Oct. 25 Decision of the Board of Zoning Appeals of Petersburg (VLW 019-8-003).

Standing found

Cuthbert, as a member of the City Council, took issue with the decision of the city’s zoning administrator regarding the residential use of a certain property. He appealed the decision to the city’s Board of Zoning Appeals, but that body ruled on Oct. 25 that Cuthbert was not an “officer of the locality” within the meaning of Virginia Code § 15.2-2311(A) and therefore lacked standing.

The statute allows appeal by “any person aggrieved” or by any “officer, department board or bureau” of the locality.

Courts have narrowly defined who may be considered “aggrieved,” so the interpretation of “officer” is important, Cuthbert said.

Cuthbert took the issue up to circuit court, where Teefey held a hearing on Dec. 26. Both the landowner and the city’s Board of Zoning Appeals opposed Cuthbert’s standing to appeal the administrator’s decision. Teefey agreed with Cuthbert.

Teefey entered a two-page order, but he attached and incorporated the 56-page hearing transcript that included his analysis.

Opening flood gates

The landowner, represented by W. Alexander Burnett, said Cuthbert was powerless to appeal since he acknowledged he was acting individually and not on behalf of the council as a whole.

Burnett said an officer has to be acting on behalf of the local governing body to appeal a zoning administrator’s decision, according to the hearing transcript. He said the zoning administrator and city attorney were the only two officers that Petersburg had designated to enforce zoning laws.

“It’s not that he can’t bring it, but it’s that he’s got to bring it on behalf of the local governing body or on behalf of City Council in this instance,” Burnett said.

Teefey agreed it was a “difficult issue to put your head around because members of City Council don’t act independently, generally speaking.”

Burnett contended Cuthbert’s position would allow any of dozens of city officials to weigh in on zoning matters, even though their positions have nothing to do with zoning.

“If that’s the interpretation, your honor, the flood gates would open to anyone in Petersburg who took an oath,” Burnett said. He argued that zoning and land use decisions would never be final, and construction projects throughout the state could be “ground to a halt” through the appeals processes.

“It’s an incredibly slippery slope,” Burnett said.

“Anybody who didn’t like a certain project or a certain decision that has been made by the BZA could file an appeal without any authorization from the local governing body,” Burnett said. “Just the fact that Mr. Cuthbert has filed this appeal is putting this particular project in serious peril….[I]t shows how disruptive such a broad interpretation could be.”

The city’s Board of Zoning Appeals was represented by Assistant City Attorney Rashaad Bey, who argued that local officials do not enjoy enhanced status as officers merely by taking the oath of office. His position drew fire from Teefey:

“[T]he Board of Zoning Appeals seems to make light of taking an oath – and that qualifies you to be an officer – which I find offensive, and I would like to state that for the record. Because an oath is not a frivolous moment in a transition from John Q. Public to elected or appointed office,” Teefey said.

Teefey cited Virginia statutes on local government to suggest that the definition of “officer” is unrestricted under the Code. The operative statute contains no limitation, he said.

“This broad grant of standing to any officer, department, board or bureau of the locality affected by the decision of the zoning administrator is consistent with the precedent and appellate law that litigants have standing if they have a sufficient interest in the subject matter of the case so that the parties are adversaries, allowing issues to be fully and faithfully developed,” Teefey said.

Cuthbert welcomed the decision.

“Good government is advanced by broadening the pool of persons with standing to challenge a decision of the zoning administrator. This is because too often the decisions of zoning administrators are wrong and yet free from meaningful oversight.  Now, more oversight is possible,” Cuthbert said in an email.

Neither Burnett nor Bey was available for comment.