One of the problem issues for Virginia local governments and their officials and employees across the state is how to deal with blight. Such structures, singular or in groups, can become a large problem to a community.  Often, historic structures fall victim to lack of maintenance, or neighborhoods suffer because of harmful and dangerous conditions.  Fortunately, there are a number of tools localities can use to address blight in their communities.

The tools can be broken down into three groups, based upon what conditions (and preconditions) exist.

I.  Tools available if a blighted structure presents an “imminent and immediate threat to the health, safety or welfare of the general public:”

     (A) Tool # 1 — If the locality has adopted Part III of the Virginia Uniform Statewide Building Maintenance Code (the “Property Maintenance Code”), the local building officials can authorize emergency repairs to or demolition of the blighted property and recover the cost of abatement from the owner of the blighted structure.  In emergency situations, the official can even authorize repairs to make the structure temporarily safe or even demolish structures under certain circumstances.

     (B) Tool #2 — Any locality may utilize §15.2-900 of the Code of Virginia and abate, raze, or remove the unsafe or dangerous blighted structure and recover the cost of abatement from the owner of the blighted structure.

II. Tools available if a “blightes structure is unsafe or unfit but does NOT present an imminent or immediate threat or danger to the general public:” 

     (A) Tool #1 – If the locality has adopted the Property Maintenance Code, the building official can direct the owner to make the necessary repairs or improvements to the blighted structure. If the owner fails to comply with the Building Official’s directive within 30 days, the Building Official can secure, repair, vacate, condemn or demolish the blighted structure and recover the cost of abatement from the owner.  The Property Maintenance Code contains comprehensive procedures for dealing with blighted structures. 

     (B) Tool #2 — Upon adoption of an ordinance, any locality can utilize §15.2-906 of the Code of Virginia and require the owner to remove, repair, or secure any building, wall or other structure which might endanger public health or safety. If the owner fails to comply the locality’s directive, the locality can remove, repair, secure or provide exterior maintenance to the blighted structure and recover the cost of abatement from the owner or place a lien on the property after giving written notice and after publishing such notice in a newspaper of general circulation in the community, and even prescribe civil penalties for violations of the ordinance.

     (C) Tool #3 — Any city or town (but not county) can utilize §15.2-1115 of the Code of Virginia and compel the abatement or removal of all nuisances, including unsafe, dangerous or unsanitarybuildings, walls or structures which constitute a menace to the health and safety of the occupants thereof or the public. If the owner fails to comply the locality’s directive, the locality can abate the nuisance and recover the cost of abatement from the owner.  Every such cost in excess of $200 which has been assessed against the owner of any such property and which remains unpaid shall constitute a lien against such property and shall have the same priority as other unpaid local taxes.

     (D) Tool #4 — Any locality can utilize the Spot Blight provisions in §§36-49.1:1 and 36-19.5 of the Code of Virginia to acquire “blighted properties” through purchase or eminent domain of their owners fail to properly maintain them.  Effective tool to deal with absentee owners by getting these blighted (and often historic) properties out of the hands of neglectful owners and into the hands of new owners that will maintain them properly.  As used here, a “blighted property” is defined in part as “any individual, commercial, industrial, or residential structure or improvement that endangers the public’s health, safety or welfare because the structure or improvement upon the property is dilapidated, deteriorated, or violates minimum health and safety standards.”  There are procedural requirements and limitations contained in the statutes. 

     (E) Tool #5 — Any locality can utilize §§ 58.1-3965 and 58.1-3870.1 of the Code of Virginia to sell blighted properties in order to recover delinquent real estate taxes and get blighted properties out of the hands of neglectful owners and into the hands of new owners who will maintain them.  Note:  This firm uses these statutes to recover delinquent taxes for a large number of local government clients, and our services are typically paid for my the delinquent taxpayers themselves through statutorily-permitted and judicially-mandated fees. 

III. Tool available to abate a blighted structure that might endanger the public’s health, safety or welfare, which for a continuous period in excess of six months has been vacant and boarded up in accordance with the building code and has not had any utiluty service (i.e. a “derelict building”). 

     (A)  Tool #1 — By ordinance, any locality can utilize §15.2-907.1 of the Code of Virginia and establish a tax abatement program to encourage the owners of any “derelict building” — as defined — to demolish or renovate such buildings, using a combination of required abatement plans, expedited procedures and tax breaks for the owner.

Used properly by localities, these tools can make the difference in our communities.  What tools are being used in your communities, or what problems with blight have you seen?

In 2008, as the real estate market stagnated, the Loudoun County Board of Equalization (BOE) received a huge spike in assessment appeals, far more than in the past. This was especially true with appeals of assessments for commercial properties, which are typically much more complex than residential ones. On many occasions, some thinly-supported appeals had been withdrawn after a large amount of staff and BOE time had been spent in analysis.

Fearing even more appeals in 2009, the BOE adopted new rules and procedures for applicants for commercial properties which among other things, required the applicants to disclose what they thought fair market value to be, address the three recognized appraisal methods and provide any comparable sales relied upon.

A number of commercial landowners reportedly failed to comply with these requirements by the deadline for applications to be filed in June. In September, these landowners each received a letter from the BOE, which told them that their BOE appeal would proceed no further, and their next step would be to file a lawsuit in the circuit court. Some of these landowners and their counsel objected to the BOE’s action, for many reasons. Most significantly, they objected to the authority of the BOE to adopt such rules and refuse them a hearing if not followed.

After unsuccessfully objecting directly to the BOE, nine of these commercial property owners, represented by John H. Foote, Esquire of Walsh Colucci Lubeley Emrich & Walsh and Ilene Baxt Boorman, Esquire of Wilkes Artis, filed a declaratory judgment action in Loudoun County Circuit Court. There were four counts in the complaint, alleging the action of the BOE in adopting these rules and denying a hearing to the plaintiffs was ultra vires (given the Dillon Rule), arbitrary and capricious, and violated the plaintiffs’ constitutional due process and equal protection rights.

The prayer for relief requested a declaration that (i) the BOE acted beyond its authority in dismissing the cases without a hearing and therefore deprived the plaintiffs of their due process and equal protection rights, (ii) the BOE must provide the plaintiffs a hearing, and (iii) the BOE cannot establish the form of evidence the taxpayers must present.

Sands Anderson and myself were hired to defend the case. In response to the complaint, I filed three demurrers on behalf of the BOE.

The first demurrer turned the plaintiffs’ Dillon Rule argument around on them and asserted that the BOE is not sui juris and therefore cannot sue and be sued. This demurrer cited the BZA of Fairfax County v. Board of Supervisors of Fairfax County, 276 Va. 550, 666 S.E.2d 315 (2008) arguing that just as the BZA in that case had no authority to sue the Board of Supervisors “or anyone else,” a BOE was just as limited in its ability to be sued by anyone. It also asserted that there simply is no statutorily-prescribed mode of proceeding to sue the BZA, a quasi-judicial arm of the state.

The second demurrer asserted that a declaratory judgment would be inappropriate because an adequate remedy at law existed, i.e. an appeal of the BOE’s action to the circuit court as suggested in the Chairman’s letter. The Declaratory Judgment Act supplements normal legal processes and where such processes are adequate, they should be followed.

The third demurrer asserted that a declaratory judgment would be inappropriate because it sought to correct past behavior as opposed to guide future conduct. The Declaratory Judgment Act is not appropriate to litigate over past events, but is intended to prevent litigation by allowing clarification of rights and procedures before damage is done. In this case, the BOE had taken final action for tax year 2009.

On January 13, 2010, visiting Judge Herman A. Whisenant, Jr. heard oral argument and agreed with all three demurrers. In addition, Judge Whisenant ruled sua sponte that by receiving the applications for relief from the plaintiffs and issuing the letter in response, the BOE had provided the plaintiffs any hearing required by the statute and issued the equivalent of an order. The Court dismissed the case with prejudice. The final order was entered on March 1, 2010, and was not appealed.

I would be pleased to share the final order (with a transcript of the court’s ruling attached), and discuss the case with any interested local government attorney. Please contact me directly.

What do you think about this result? Should a Board of Equalization or a Board of Zoning Appeals be treated like a court? Courts, after all, do not get sued, but their decisions get appealed. Or, should a BOE or BZA be treated like other local government bodies that can sue and be sued?

Interestingly, the long-standing requirement to name the BZA was not statutory, but based upon the determination in a Virginia Supreme Court case, Board of Supervisors of Fairfax County v. Board of Zoning Appeals of Fairfax County, 225 Va. 235, 238, 302 S.E.2d 19, 21 (1983) (“Considering these factors, we believe it is clear that, until return on the writ of certiorari is made by the board of zoning appeals, the only necessary parties to a proceeding under Code § 15.1-497 are the aggrieved person and the board [of zoning appeals].”). The real issue in this case was whether the petition for certiorari was filed in a timely manner. However, this unfortunate ruling was apparently justified because of the statutory requirement that the BZA produce the record of the proceeding below to the circuit court upon the filing of a petition for writ of certiorari.

I say “unfortunate” because a BZA typically acts in a quasi-judicial manner, and naming them as a defendant amounted to a lower court being named as a party in the appellate proceedings. In addition, the naming of the BZA as a defendant has had negative results. BZAs have (perhaps understandably) felt that they were “sued” when the suit papers on appeal named the BZA as a defendant. The poor BZA chair (or an unlucky spouse) often were served with the suit papers by the sheriff. Being named as a defendant on appeal lead many BZAs to request counsel on appeal to represent them (since they had been “sued”).

Local government attorneys have told BZAs over the years that they acted quasi-judicially, were only named because of the obligation to produce the record (which the staff typically handled anyway), and need not defend their decision. In fact, the real parties in interest were the applicant/appellant, the locality, and/or perhaps an aggrieved neighbor or two.

Despite this, some BZAs have requested, demanded and even sued to get counsel for appeals naming them as a defendant. In Fairfax County, demands lead to years of litigation and a series of appeals to the Virginia Supreme Court, cuminating in Board of Zoning Appeals of Fairfax County v. Board of Supervisors of Fairfax County, 276 Va. 550, 666 S.E.2d 315 (2008) (BZAs cannot sue in their name).

So now, at last, the General Assembly has acted to remove the BZAs from the fray on appeal. Credit goes to James City County and to Warren County for requesting the bills that were consolidated into HB 1063, and to their patrons. See legislative history here.

HB 1063 makes several changes and technical amendments, but the portions relevant to this article provide that (i) the petition for writ of certiorari “shall be styled “In Re: [date] Decision of the Board of Zoning Appeals of [locality name],” (ii) service of process will be upon the secretary to the board (often a staff member), and (iii) specifically addresses the “BZA as party” issue as follows:

“Any review of a decision of the board shall not be considered an action against the board [of zoning appeals] and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required by this section [i.e., file the record with the circuit court].”

Interestingly, the bill goes on to state that “[t]he governing body, the landowner, and the applicant before the board of zoning appeals shall be necessary parties to the proceedings.” In my experience, there are some appeals from decisions of the BZA that the governing body and, in some cases, even the landowner does not wish to be involved. Examples of the former include some variances, and examples of the latter might include a zoning administrator determination case in which the party in interest is a contract owner. This sentence may need further amendment in the future if unwilling parties are (again) required to be named in these appeals.

All in all, however, HB 1063 is a step in the right direction which answers the questions of how to style these appeals, who gets served with the petition, who should (and should not) be made a party.

Let me briefly mention some of the more significant ways that life at the BZA has become more complicated and difficult over time:

1993. First statutory authorization of zoning administrator vested rights determinations, complex legal and factual cases that are quite adversarial when appealed to the BZA. 1993 Acts ch. 672 (amending former Virginia Code § 15.1-491, now § 15.2-2286(A)(4)).

1995. The so-called “sixty-day rule” is adopted. 1995 Va Acts ch. 424 (amending Virginia Code § 15.1-496.1, now § 15.2-2311(c)). The complicated and curious statutory exception to the settled general “no estoppel against local government” has been raised more and more by landowners in recent years. See, e.g., Goyonaga v. Board of Zoning Appeals of Falls Church, 275 Va. 232, 244, 657 S.E.2d 153 (2008)

2003. Virginia State Bar issued LEO 1785 (November 14, 2003), which declared it unethical for a local government attorney to provide any legal services to a BZA (even review the advertisement) and later represent the zoning administrator in that case. This caused many local government attorneys (including this one) to take the position that they would not represent the BZA at all. Many local governments decline to hire their BZAs counsel when requested. Given the complex nature of what a BZA is expected to do, this has sometimes caused or exacerbated a division between the local BZA and the governing body. See, e.g., Board of Zoning Appeals of Fairfax County v. Board of Supervisors of Fairfax County, 276 Va. 550, 550, 666 S.E.2d 315 (2008).

2004. BZAs used to issue variances more frequently as a “relief valve” in many communities. Cochran v. Fairfax County Board of Zoning Appeals, 267 Va. 756, 756, 594 S.E.2d 571 (2004) largely shut the valve by clarifying the tough standard to qualify for a variance. This has caused more appeals of zoning administrator determinations to the BZA, which are frequently quite adversarial between the locality and the landowner.

2006. As BZAs were called upon to hear increasingly complex and numerous appeals from zoning administrator determinations, they were given less deference on appeal. 2006 Va. Acts c.446 (amending Virginia Code § 15.2-2314). Since July 1, 2006, BZAs are only given a presumption of correctness on factual determinations, and all legal issues are presented to the circuit court de novo. And, of course, when an appeal goes to circuit court, the BZA gets named as a party.  Note: This was amended in 2010 to name necessary parties on appeal, and no longer include the BZA as a party on appeal.

2009. The General Assembly reacts to Cochran and deletes two words from Virginia Code section 15.2-2309 — “approaching confiscation.”  HB 2326, 2009 Acts of Assembly chapter 206. No caselaw so far has said what this means or will mean.  Although it undoubtedly must mean something, the rest of the stringent requirements and terms are still in the statute unamended.  As one example, the BZA must still affirmatively find “undue hardship” notwithstanding the 2009 amendment.  Without guidance, additional uncertainty about the variance standard is another way it is tough to be a BZA member.  The bar has been lowered in some way, but how? And how much?

There is going to be greater detail in an article I will publish in the coming year.  McRoberts, Andrew R., Boards of Zoning Appeals in Virginia: Quasi-Judicial and Increasingly Difficult, Journal of Local Government Law, Vol. XX No.2, Winter 2010, p.12.  

What are your thoughts on the plight of our BZAs and the increasing complexity of their job? What’s a better way for local governments deal with them? Y0ur comments are welcome in the form below. Please let us hear from you!