Agenda - Planning Commission - 04/04/2019

Home

Zoning Bulletin February 10, 2019 I Volume 13 I Issue 3 was not going to build as the financial premise for calculating the fee was not a reasonable alternative methodology that could legally support the fee imposed .. .." See also: Shapell Industries, Inc. v. Governing Board, 1 Cal. App. 4th 218, 1 Cal. Rptr 2d 818, 70 Ed. Law Rep. 1148 (6th Dist. 1991). See also: Garrick Development Co. v. Hayward Unified School Dist., 3 Cal. App. 4th 320, 335, 4 Cal. Rptr. 2d 897, 72 Ed. Law Rep. 913 (1st Dist. 1992). Nonconforming Use/ Vested Rights —Town finds property owner has illegally converted buildings to dwellings Property owner contends payment of taxes on buildings for more than 15 years entitles it to continue nonconforming dwelling use Citation: Board of Supervisors of Fairfax County v. Cohn, 2018 WL 6566782 (Va. 2018) VIRGINIA (12/13/18)—This case addressed the issue of whether Virginia Code § 15.2-2307(D) cre- ates a vested right to an originally illegal use of a building or structure after the owner has paid taxes to the locality for that building or structure for 15 years or more. The Background/Facts: Douglas A. Cohn and Kathryn J. Cohn (the "Cohns") own real property (the "Property") in an R-1 zoning district in Fairfax County (the "County"). In August 2016, the County Zoning Administrator (the "ZA") issued a Notice of Violation ("NOV") to the Cohns. The NOV alleged that the Cohns were in violation of County Zoning Ordinance § 2-501. That ordinance limited property in an R-1 zoning district to "not more than one (1) dwelling unit on any one (1) lot." The County found that because a garage and garden house on the Cohns' Property had been converted to dwellings, the Cohns had "three (3) complete and separate dwellings" on the Property, in violation of the zon- ing ordinance. The NOV ordered the Cohns to rem- edy the violation by removing kitchens, electrical circuits, and plumbing in the garage and garden house dwellings, and ceasing the use of all but one dwelling unit on the Property. The Cohns appealed the NOV to the County Board of Zoning Appeals ("BZA"). On appeal to the BZA, evidence showed that the building permits is- sued for the garage and garden house had specifi- cally noted that there were "no kitchens or bath- rooms approved for the structure." However, the Cohns argued that because they paid taxes on the Property for more than 15 years, Virginia Code § 15.2-2307(D) protected "the buildings and struc- tures on the Property and their use as dwellings from being declared unlawful." Code § 15.2-2307(D) provides that "[n]otwith- standing any local ordinance to the contrary, if . . . (ii) the owner of the building or structure has paid taxes to the locality for such building or structure for a period of more than the previous 15 years, a zoning ordinance shall not provide that such build- ing or structure is illegal and subject to removal solely due to such nonconformity...." The BZA ultimately upheld the determination of the ZA, finding the Cohns in violation of the County zoning ordinance. The Cohns appealed the BZA's decision to circuit court. Again, the Cohns argued that Code § 15.2- 2307(D)(ii) prevented the County from declaring their use of the buildings and structures on the Prop- erty to be illegal. The circuit court reversed the decision of the BZA. The circuit court reasoned that Code § 15.2- 2307 (D)(ii) protects "nonconforming structures from future zoning amendments so long as taxes have been paid on the property." The court found that since 1998, the Cohns' garage and garden house had been "occupied as dwelling units," and the Cohns had "paid taxes on the Property as assessed by Fairfax County." Accordingly, the court con- cluded that Code § 15.2-2307(D)(ii) protected the Cohns from having to "destroy or otherwise modify the structures." The circuit court held that the Prop- erty, "including all three nonconforming structures, [were] protected under [Code § 15.2-2307(D)(ii)]." The County's Board of Supervisors (the "Board") appealed. The Board contended that Code § 15.2- 2307(D)(ii) did not protect illegal uses of structures and buildings, and that the circuit court failed to properly interpret the plain language of the statute. DECISION: Judgment of circuit court reversed. Agreeing with the Board, the Supreme Court of Virginia held that, pursuant to the plain meaning of the statute's language, only the structures of the' Cohns' garage and garden house were protected by Code § 15.2-2307(D)(ii); the uses of those structures as dwellings were not protected. © 2019 Thomson Reuters 3