Calway v. City of Chesapeake, Record No. 1692-22-1 (Va. Ct. App. Nov. 28, 2023)
What effect does a defective notice of a zoning violation have on any subsequent enforcement action?
Facts. On August 19, 2020, Donald Calway received a notice of violation (NOV) from the City of Chesapeake stating that a carport on his property violated a zoning ordinance. The NOV’s fine print told Calway that he had 30 days to appeal the decision to the Board of Zoning Appeals (BZA) but did not say that failing to do so would make the decision final and unappealable.
On October 7, 2020, the general district court issued Calway a summons for civil penalty for the violation. After a hearing, the court entered judgment for Calway and dismissed the case, but the City appealed to circuit court. The circuit court found that since Calway had not timely appealed to the BZA, he had failed to exhaust his administrative remedies. As such, the carport’s status was a “thing decided” and could not be challenged. Calway appealed.
Issue. Whether a notice of a zoning violation must include explicit language about the finality of a zoning determination if it is not appealed.
Holding. Yes. Under Code § 15.2‑2311(A), notice of a zoning violation must include four statutory statements: (i) that the party has the right to appeal within 30 days, (ii) that the zoning decision will be final and unappealable if no appeal is filed within that time, (iii) the cost of filing an appeal, and (iv) the location of further information about appeals. If it does not, any enforcement action based on the notice is voidable.
Notes. Code § 15.2‑2311(A) states that the appeal period to the BZA does not begin until a person receives the four statements required by that statute. Here, those statements were defective, so the appeal period never began to toll and the court did not have authority to order a penalty.