Agenda - Planning Commission - 07/10/2014

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Zoning Bulletin June 10, 2014 I Volume 8 I Issue 11 The Background/Facts: Alan T. Shaia and Wayne T. Shaia (the "Shaias") owned real property in Richmond, Virginia (the "City"). The Lamar Company, LLC ("Lamar") leased the property from the Shaias and maintained a billboard on the premises. The City brought an enforcement action against Lamar and the Shaias. The City alleged that the billboard was nonconforming to City zoning regulations and illegal. The City sought removal of the billboard, or in the alternative, a requirement that the billboard be lowered to a conforming height. The Shaias and Lamar pointed to Virginia's Vested Rights Statute, VA Code § 15.2-2307. That statute provides as follows: "[N]otwithstanding any local ordinance to the contrary, if . . . the owner of the building or structure has paid taxes to the locality for such building or structure for a period in excess of 15 years, a zoning ordinance may provide that the build- ing or structure is nonconforming, but shall not provide that such building or structure is illegal and shall be removed solely due to such nonconformity." The Shaias and Lamar contended that the City could not require removal of the billboard since the City had been paid taxes on the structure for more than 15 years. They sought declaratory relief from the circuit court. The circuit court determined that the declaratory relief they sought was "premature as the [Vested Rights Statute] [was] merely enabling law empowering local governments the means to enact ordinances consistent therewith." In other words, the court concluded that private property owners in Virginia did not have such vested rights protections unless a local govern- ment chose to adopt an implementing ordinance under the Vested Rights Statute. Finding the City had not enacted any such ordinance under the statute, the court ruled in favor of the City. Lamar and the Shaias appealed. DECISION: Judgment of circuit court reversed, and matter remanded. The Supreme Court of Virginia held that Virginia's Vested Rights Statute, VA Code § 15.2-2307, was restrictive legislation, not merely enabling legislation. In so holding, the court noted that "municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable." The court said that, under "enabling legislation," which is permissive, the General Assembly "expressly grants" power to local governments. Restrictive legisla- tion, in contrast, limits the power of local governments, noted the court. Looking at the plain language of the statute, the court found that the phrase "[n]otwithstanding any local ordinance to the contrary," demonstrated 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. Similarly, the court found that the General Assembly "signaled its intent to limit local authority" by including the following restrictive language: "a zoning ordinance . . . shall not provide that such building or structure is ille- gal and shall be removed solely due to such nonconformity:" Accordingly, based on the plain language of the statute, the court held that VA Code § 15.2- 2307 could not be construed as an enabling provision. The court remanded the matter for further proceedings in accordance with its opinion. 2014 Thomson Reuters 3