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TRAN, et al.



November 3, 2000

Record No. 992812

Present: All the Justices








Dennis J. Smith, Judge

In this appeal, we consider three interrelated
issues: whether the Board of Zoning Appeals’
("BZA") failure to render a decision on an appeal
within 90 days in accordance with Code ? 15.2-2312 deprived
the BZA of jurisdiction to act; whether continuances allowed by
The Zoning Ordinance of Fairfax County, Virginia
[1] ? 18-306(3) conflict with
provisions of Code ? 15.2-2312; and whether the BZA’s
failure to act for 550 days resulted in a denial of due process.

I. Background

Kim D. Tran and Joseph Nguyen, trading as
Rolling Valley Nail Care ("Nail Care") leased from
Harry L. Bedsworth (Bedsworth) an office condominium located in
the Rolling Valley Professional Center ("Center"), a
commercial townhouse development, consisting of 35 units located
in 7 separate townhouses or low-rise buildings. The property
leased to Nail Care was zoned C-1, Low-rise Office Transitional

On October 4, 1996, the Zoning Administrator
granted a Non-Residential Use Permit ("Non-RUP") to
Nail Care entitling Nail Care to operate a personal service
establishment as an accessory service use. On November 1, 1996,
the Rolling Valley Professional Center Condominium Unit Owners
Association ("the Association") filed an application
for appeal with the BZA challenging the issuance of the Non-RUP
to Nail Care.

A public hearing on the matter was originally
scheduled for January 28, 1997, but was rescheduled to March 4,
1997, at the request of the Association to "allow Zoning
Enforcement the time necessary to evaluate the situation to
determine if a violation of the Zoning Ordinance exist[ed]."
The March 4, 1997 hearing was again rescheduled at the request of
the Association in order to allow the BZA "additional time
to further investigate the circumstances surrounding the issuance
of the Non-Residential Use Permit." The hearing was
rescheduled five more times, always at the request of the
Association, until it finally took place on May 5, 1998, 550 days
after the date of the Association’s appeal. No objection was
made by Nail Care to any of these continuances. By unanimous
decision dated May 13, 1998, the BZA reversed the Zoning
Administrator’s issuance of the Non-RUP.

Nail Care instituted two actions in the Circuit
Court of Fairfax County on June 2, 1998. The first action was a
petition for a writ of certiorari seeking reversal of the
BZA’s decision and the second was a petition for declaratory
judgment asking the trial court to declare zoning ordinance
? 18-306(3) invalid because it conflicted with Code
? 15.1-496.2. Additionally, the Zoning Administrator filed
a bill of complaint for declaratory judgment and injunctive
relief seeking enforcement of the zoning ordinance and injunctive
relief against further violation. The three proceedings were

The trial court upheld the position taken by
the BZA, holding that "the provision of Va. Code
? 15.2-2312 relating to the time for decision of appeal is
merely directory and procedural, not mandatory and
jurisdictional, and therefore the BZA did not lack jurisdiction
to act upon such appeal beyond ninety days." Having
determined that the BZA did not lose power to hear the matter
after passage of 90 days from the filing of the appeal from the
zoning administrator’s decision, the trial court held that
zoning ordinance ? 18-306(3) permitting continuances is not
in conflict with Code ? 15.2-2312. Finally, the trial court
declared that Nail Care’s use of the premises violated
applicable zoning requirements and enjoined future violation.
Nail Care appeals the adverse judgment of the trial court.

On appeal, Nail Care contends that the trial
court erred in holding that the BZA had jurisdiction to render a
decision on the Association’s appeal because it was not made
within 90 days of the filing of appeal. Nail Care further argues
that zoning ordinance ? 18-306(3) pertaining to
continuances is in conflict with Code ? 15.2-2312 and that
the delay in the BZA’s decision denied it due process of

II. Analysis

Code ? 15.2-2312 (formerly Code
? 15.1-496.2)
[2] provides in part that,
"[t]he board shall fix a reasonable time for the hearing of
an application or appeal, give public notice thereof as well as
due notice to the parties in interest and make its decision
within ninety days of the filing of the application or
appeal." Nail Care argues that by use of the word
"shall" in the statute, the intent of the legislature
was that an appeal to the BZA must be concluded within 90 days.

We have long held that "[c]ourts, in
endeavoring to arrive at the meaning of language in a will,
contract, or a statute, often are compelled to construe
‘shall’ as permissive in accordance with the subject
matter and content." Fox v. Custis, 236 Va. 69, 77,
372 S.E.2d 373, 377 (1988). Moreover, we have repeatedly stated
that "the use of the word ‘shall’ in a statute
requiring action by a public official, is directory and not
mandatory unless the statute manifests a contrary intent." Jamborsky
v. Baskins
, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994). We
applied this well-established principle in Jamborsky, and
held that a circuit court’s failure to examine certain
papers and enter an order either remanding a case to the juvenile
court or advising the Commonwealth’s Attorney that he may
seek an indictment under former Code ? 16.1-269(E), which
governed the transfer of a juvenile to stand trial as an adult,
was a procedural requirement rather than a prerequisite to
jurisdiction. Additionally, we observed that the statute
"contains no prohibitory or limiting language that prevents
the circuit court from entering its order beyond the expiration
of the 21-day period." 247 Va. at 511, 442 S.E.2d at 638-39.

In Commonwealth v. Rafferty, 241 Va.
319, 402 S.E.2d 17 (1991), we construed former Code
? 18.2-268(Q), which provided that an executed certificate
of refusal to take a blood or breath test "shall be attached
to the warrant." We said, " ‘[a] statute
directing the mode of proceeding by public officers is to be
deemed directory, and a precise compliance is not to be deemed
essential to the validity of the proceedings, unless so declared
by statute.’ " 241 Va. at 324-25, 402 S.E.2d at 20
(quoting Nelms v. Vaughan, 84 Va. 696, 699, 5 S.E. 704,
706 (1888)).

Code ? 15.2-2312 contains no
"prohibitory or limiting language" concerning action
after the passage of 90 days. Accordingly, we hold that the
90-day time period for appeals in Code ? 15.2-2312 is
directory rather than mandatory and that the BZA did not lose
jurisdiction to render a decision on appeal of the Zoning
Administrator’s action after 90 days had passed.

Although we have determined that the BZA is
permitted to render a decision on appeal more than 90 days after
the filing of the appeal, failure to adhere to statutory time
requirements may result in dismissal if due process concerns are
not met. In Commonwealth v. Wilks, 260 Va. 194, 530 S.E.2d
665 (2000), we considered whether the requirement of filing
notices of seizure for forfeiture was procedural or
jurisdictional in nature. Although we held that the notice
requirements were procedural, we noted that "our decision is
based on the uncontroverted fact that the putative owners did not
suffer any prejudice as a result of the delay in giving
notice." Id. at 201, 530 S.E.2d at 668. An assessment
of whether an individual has "suffered prejudice
constituting a denial of due process must be made on a
case-by-case basis." Id.

Nail Care has presented no evidence supporting
its claim of prejudice or harm as a result of the 550 days that
passed before the BZA rendered a decision on the
Association’s appeal. Additionally, Nail Care failed to
object to any of the continuances which caused the lengthy delay.
Accordingly, we find no merit to the contention that Nail Care
was deprived of due process.

Nail Care also argues that the BZA’s
grants of continuances to the Association beyond 90 days,
pursuant to zoning ordinance ? 18-306(3), conflict with
Code ? 15.2-2312. Zoning ordinance ? 18-306(3) states
that, "[t]he BZA shall render a decision on all applications
for appeal within ninety (90) days from the date of acceptance,
unless an extended period is mutually agreed to by the appellant
and the BZA." Nail Care’s argument is premised entirely
upon its contention that the 90-day period for deciding an appeal
set forth in Code ? 15.2-2312 is mandatory rather than
directory in nature. Having resolved that issue contrary to the
premise, we conclude that the zoning ordinance permitting
continuances is not in conflict with Code ? 15.2-2312.

III. Conclusion

We hold that the time requirement in Code
? 15.2-2312 is directory and not mandatory, that zoning
ordinance ? 18-306(3) does not conflict with Code
? 15.2-2312, and that Nail Care has shown no prejudice in
support of its claim of denial of due process. Accordingly, we
will affirm the judgment of the trial court.



[1] The regulations contained in The
Zoning Ordinance of Fairfax County, Virginia constitute Chapter
112 of the 1976 Code of the County of Fairfax, Virginia and will
be referred to as "zoning ordinance." All references
herein to "Code" will refer to the Virginia Code.

[2] Code ? 15.1-496.2 was repealed by Acts 1997
c.587, effective December 1, 1997. The language of Code
? 15.2-2312, enacted in 1997, is identical to that of Code
? 15.1-496.2. The trial court referred to these sections
interchangeably. For purposes of this opinion we will refer to
Code ? 15.2-2312.