Virginia Lawyers Weekly//October 26, 2020
Virginia Lawyers Weekly//October 26, 2020//
After receiving notice to remove a truck from their property, defendant provided insufficient evidence that he successfully converted the truck from an impermissible commercial vehicle into a permissible recreational vehicle. As a result, an injunction will issue compelling defendant to remove the truck.
After receiving a complaint that the Morgans, the defendants in this case, were operating a commercial business from their home, Gibson, a Fairfax code compliance official, investigated. He issued the Morgans a notice to remove a truck from their property because it violated a zoning prohibition against parking commercial vehicles on residential property. “To give a clearer picture, the vehicle is the same type as the familiar brown delivery trucks UPS uses.”
Davide Morgan appealed the notice to the Board of Zoning Appeals. Morgan sought to prove that the truck was actually a recreational vehicle, which could permissibly be parked on his property.
“He offered photographs to show he converted the truck into an RV by installing a hot plate, refrigerator, sink and holding tank for potable water, outside spigot, and inverter. … He conceded at the hearing that he added all but two of these features after receiving the Notice of Violation. … He testified the conversion items all worked, but he refused to show Mr. Gibson.”
The BZA denied the appeal, noting that by Morgan’s own admission, the violation notice was true at the time it was issued. The BZA did not reach the issue whether Morgan converted the truck into an RV before the hearing.
Johnson, the Fairfax County zoning administrator, filed a petition for an injunction to enforce the BZA’s ruling. The Morgans assert the truck is now an RV and complies with the law, although they still will not allow the truck to be inspected.
“The Administrator maintained the unappealed BZA decision was a ‘thing decided.’ The Administrator’s position is that the BZA already ruled the truck violated the Zoning Ordinance of Fairfax County, Virginia … , so she wants the Morgans to remove the truck from their property. She objects to the Morgans’ gambit to collaterally attack the decision in the present enforcement action.
“The Morgans introduced into evidence the same photos offered to the BZA. Mr. Morgan added a video, made prior to the BZA hearing, which showed the inside of the truck. …The video did little to amplify the photos; neither the photos nor the video depicted any of the purported RV additions in working condition. It is impossible to confirm their working condition simply by looking at the photos and video. Mr. Morgan conceded this in his testimony.”
“When the Morgans chose not to appeal the BZA decision declaring the truck to be a commercial vehicle, they gave up the right to contest that decision. The issue as to the status of the truck was ‘a thing decided’ and not subject to attack by the Morgans. …
“If the Morgans could collaterally attack the BZA’s finding of a zoning violation, it would effectively strip the Circuit Court of its appellate jurisdiction. The Court would have to hear the BZA’s case anew. The Morgans had their opportunity to appeal; they forfeited it.
“They argue that appeals from the BZA are discretionary, and they opted out. They assert that they may argue the violation in Circuit Court. However, the Supreme Court of Virginia squarely rejected that argument.”
The Morgans, however, can offer evidence that they have remedied the violation. “It makes no sense that a property owner who corrects a zoning violation after a violation finding must wait to prove correction in a third lawsuit. …
“Unfortunately for them, the Morgans failed to carry their burden of proving a successful conversion of their impermissible commercial truck into a permitted RV. While they could, and did, present evidence of their affirmative defense — their alleged conversion — the Court did not believe they really converted their truck. …
“As an initial point, the Morgans failed to prove any of the four conversion items actually work. While Mr. Morgan testified they all worked, the Court is not bound by the bare assertion of a party. …
“[T]he Court considered Mr. Morgan’s obvious interest in the outcome of the case in weighing his credibility. He is clearly exasperated with the Administrator.
“The Court also considered (1) that his photos and video suspiciously failed to show the purported conversion items actually working; (2) that the truck had been in the same place for over a decade, indicating it may have been inoperable; (3) the slapdash condition of the alleged conversion and the filthy condition of the interior; and, (4) Mr. Morgan’s consistent refusal to permit an inspection of the vehicle even after the BZA determined it was not an RV.
“Combined, the Court did not believe Mr. Morgan’s uncorroborated claim that his conversion items worked and the truck was really an RV.”
“A property owner may not collaterally attack an adjudication of the BZA during a subsequent action to enforce the BZA’s finding. An adjudication of the BZA is a ‘thing decided.’ However, as an affirmative defense in a subsequent enforcement action, property owners may present evidence that they subsequently brought their property into compliance with the zoning ordinance, and enforcement is no longer warranted.
“Even though the Morgans could assert their subsequent compliance as a defense, the evidence did not prove the truck was successfully converted from an impermissible commercial truck into a permissible RV.
“The Court finds in favor of the Administrator, declares the BZA finding that the truck is an impermissible commercial vehicle as final, rejects the Morgans’ affirmative defense that they corrected the violation, and grants the Administrator’s request for an injunction.”
Johnson, Fairfax County Zoning Administrator v. Morgan, et al. Case No. CL-2019-13580, Oct. 9, 2020; Fairfax County Cir. Ct. (Oblon). Patrick Foltz for plaintiff, Robert Dain for defendants. VLW 020-8-111, 8 pp.