Need for the Bill

This bill was much needed. Prior to this bill, a BZA has been held to be a necessary party in an appeal. Board of Supervisors of Fairfax County v. Board of Zoning Appeals of Fairfax County, 225 Va. 235, 238, 302 S.E.2d 19 (1983) (“[U]ntil return on the writ of certiorari is made by the board of zoning appeals, the only necessary parties to a proceeding under [the predecessor statute to Virginia Code § 15.2-2314] are the aggrieved person and the board.”)

Being named as a party (and its chair often being served with process by the local sheriff) often resulted in angst on the part of the BZAs. BZAs felt they were “being sued,” and this was often reported in the local media. Localities and their BZAs argued over whether the BZA is a “real” party on appeal, which needs counsel, or merely named so it can produce its record for consideration by the circuit court. Being named as a party lead many BZAs to ask their localities for counsel, and in some instances, to sue for it. See Board of Zoning Appeals of Fairfax County v. Board of Supervisors of Fairfax County, 276 Va. 550, 666 S.E.2d 315 (2008).

HB 1063 largely resolves these problems.

Significant Changes in HB 1063

First, service of the petition for writ of certiorari will be served upon the “secretary of the board of zoning appeals or, if no secretary exists, the chair of the board of zoning appeals.” This will allow the BZA to designate a person not on the board as secretary, such as a staff member more likely to have the record as a practical matter. This would avoid service on any member of the BZA, at the option of the local BZA.

Second, and perhaps most significantly, an appeal from a decision of the BZA no longer will name the BZA. Rather, a petition for writ of certiorari to circuit court will be styled, “In Re: [date] Decision of the Board of Zoning Appeals of [locality name].” The BZA is no longer a necessary or even an appropriate party. Rather, the BZA is instructed to “participate in the proceedings to the extent required by this section.” The section’s only apparent requirement for the BZA, which is unamended by the bill, requires the BZA to provide its record to the circuit court.

Another, arguably unrelated change clarifies who is a “necessary party.” The bill expressly lists “governing body, the landowner, and the applicant before the board of zoning appeals.” This listing is helpful to the appellant, and eliminates arguments on this issue on appeal. This provision guarantees the governing body a say on appeal, if so desired. However, this amendment requires that the governing body be involved on some level. In the past, a governing body was able to have no involvement in cases in which it had no interest – a variance dispute between two neighbors, for example. Now, the governing body is required to be named. Presumably, the local government attorney representing the governing body can defer to the other parties, or simply default if the governing body has no interest in the case.

Lastly, the bill requires that the written notice of appeal required for a zoning administrator determination to be final under Virginia Code § 15.2-2311(A) to include the cost of appeal and reference to where additional information may be obtained regarding filing an appeal. This is helpful information to prospective appellants and is easily given. By statute, failure to provide this additional information means the zoning administrator’s determination is not final.

Lessons from HB 1063

One result of this bill is that BZAs will not longer be able to defend their decisions on appeal, even if they wish to. But this makes sense. BZAs are quasi-judicial bodies, in almost all cases. They should act like courts in making their determinations. BZAs are not proper parties on appeal, any more than courts or their judges are parties on appeal of their decisions.

Without a role for the BZA as a party on appeal, the BZA’s decision must speak for itself. BZAs, appellants and zoning staff involved in their cases should be aware of the importance of the determination of the BZA in case of appeal. The decision should be clear.

Also, although unrelated to HB 1063, on appeal to circuit court of BZA decisions on zoning administrator determinations, the “plainly wrong” standard for review not longer applies. Instead, BZAs get a rebuttable presumption of correctness for their factual findings, but no presumption in favor of their legal determinations, which are reviewed de novo (“as if new”) on appeal. See Virginia Code § 15.2-2314. Therefore, parties and BZAs should consider the importance of factual findings in these cases.

Conclusion

HB 1063 is a helpful simplification of the procedure for appeals of BZA decisions. While not making cases before BZAs any simpler, this bill clarifies that on appeal – as with a court – it is the BZA’s decision that must stand or fall. The BZA is not a party and has no role beyond providing the record. In response, BZAs should ensure that the record is complete and that the reasoning for their decisions are clear in that record.

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.