Virginia Lawyers Weekly VA Lawyers Weekly
Where appellants petitioned the circuit court to review the Board of Zoning Appeal’s unfavorable decision, references in the petition to “Roanoke City and the City of Roanoke” cannot be reasonably understood to include the city council.
Because appellants did not include the city council within the 30-day period in which to name the “governing body” in their petition, the relevant statute requires that the petition be dismissed.
Background
Appellants are member of a neighborhood association (Oak Hill). Oak Hill lodged a complaint with the zoning administrator that Pinnacle Treatment Services “was violating the zoning ordinance by operating a halfway house in their neighborhood.”
The zoning administrator ruled in Pinnacle’s favor. Oak Hill appealed to the Board of Zoning Appeals, which affirmed the administrator’s decision.
Oak Hill appealed to the circuit court. The petition named Pinnacle, CapGrow, Pinnacle’s landlord, the BZA and “Roanoke City” as necessary parties.
CapGrow, Pinnacle and the city filed separate motions to dismiss. These parties pointed out that Oak Hill did not name the city council as a necessary party within the 30-day period required by Code § 15.2-2314, the statute that governs zoning appeals.
Following a hearing on the motion, Oak Hill moved to correct the council’s omission from the petition by asserting that a misnomer was involved. “In its motion, Oak Hill argued that it had intended to name the Council as a party, not the City.”
In denying Oak Hill’s motion and granting the motions to dismiss, the “circuit court explained that a locality is a distinct entity from its governing body and, therefore, ‘Roanoke City and the City of Roanoke are not misnomers for the City Council for the City of Roanoke.’
“As such, it concluded that it lacked discretion to permit Oak Hill to amend its petition to include the Council as a party.”
Appeals statute
Under Code § 15.2-2314, a party seeking review of a board of zoning appeals decision is required to name ‘[t]he governing body’ of a locality as a ‘necessary part[y] to the proceedings in the circuit court. Thus, in order for proceedings to be initiated under Code § 15.2-2314, a petitioner must give notice to the governing body of the locality ‘by identifying it as a party in the petition.’ …
“‘The failure to name the governing body as a necessary party within the 30-day window contemplated by Code § 15.2-2314 remains a defect and, when timely raised … requires dismissal of the petition.’ … (emphasis added).”
We have previously stated that the “petitioner can name the governing body in a separate heading or caption or name it in the body of the petition, so long as ‘a reasonable reader would understand either from the petition’s text or context or both that the [necessary party] is being mentioned not as a mere historical reference within the larger background of the case, but as the party against whom the appeal is being taken.’”
Application
“[I]t cannot be said that a reasonable reader would understand that the Council was the party against whom Oak Hill was bringing an appeal under Code § 15.2-2314. Notably, the word “council” is not mentioned once in the entire petition. Instead, the petition makes repeated references to “Roanoke City,” which, on its face, would indicate that the petition was directed at the City rather than the Council.
“Oak Hill, however, contends that ‘Roanoke City’ is a non-entity, and, therefore, it must be interpreted as a reference to the Council. Oak Hill’s argument is belied by the fact that it used ‘Roanoke City’ interchangeably with ‘City of Roanoke’ throughout the petition.”
Further, Oak Hill’s petition “specifically requested that the circuit court ‘direct the City of Roanoke …. to immediately require CapGrow and Pinnacle to cease operations.’ (Emphasis added.)
“As ‘City of Roanoke’ cannot be interpreted as anything other than a reference to the City, it is clear that a reasonable reader could only interpret the petition as an action against the City, not the Council.
“For similar reasons, Oak Hill’s argument that it should be permitted to amend its complaint using Code § 8.01-6 must fail. Code § 8.01-6 allows a party to cure a misnomer by amending its pleadings and the resulting amendment relates back to the date of the original filing.”
“‘[A] misnomer occurs where the proper party to the underlying action has been identified, but incorrectly named.’ … Misjoinder, on the other hand, arises when “the person or entity identified by the pleading was not the person by or against whom the action could, or was intended to be, brought.’ …
“As explained above, ‘Roanoke City’ is a misnomer for the City, not the Council. As the City is not the proper party to the petition, the repeated references to ‘Roanoke City’ amount to a misjoinder.
“Accordingly, Code § 8.01-6 has no application in this case.
“This order shall be published in the Virginia Reports and certified to the Circuit Court of the City of Roanoke.”
Marsh, et al. v. Roanoke City, et al., Record No. 210560 (published order) June 9, 2022. Upon an appeal from a judgment rendered by the Circuit Court of the City of Roanoke. VLW 022-6-030, 4 pp.
