Property Owner Continues Delay Effort
SEPTEMBER 13, 2018 - For the second month in a row, the City has endeavored simply to get a hearing date scheduled regarding the BZA’s erroneous decision to grant a variance for an illegal wall. For the second month, the property owner’s counsel has invoked his status as a Virginia legislator to delay again the disposition of the matter.
City's appeal of illegal wall delayed by property owner
SEPTEMBER 6, 2018 — The City promptly filed its petition for appeal on July 3, 2018 regarding a Board of Zoning Appeals decision concerning features of an illegal wall built at 1403 N. Augusta Street. However, the property owner has not filed any response to the petition, although she was served with a copy of the petition.
The City has now repeatedly sought to have the matter promptly scheduled for hearing before the Staunton Circuit Court, but the property owner’s legal counsel is using his status as a Virginia legislator to delay the scheduling.
View a copy of the City’s filed response to the legislative delay tactic on behalf of the property owner.
Since that time, the City has tried to get the property owner’s counsel to agree just informally on a date for a hearing, but the delay continues. The City does not know whether the property owner’s counsel has filed similar delay motions in other cases currently pending or whether it has been done selectively in this case.
As a result of the delay tactic, the City is prevented from having the circuit court review and decide its appeal of what it believes was another erroneous decision by the Staunton Board of Zoning Appeals.
For historical background on this issue, please see the FAQs below.
City Council to defend zoning law and appeal BZA’s decision on illegal wall
JUNE 26, 2018 — City Council recently adopted a resolution to appeal the 3-2 variance decision of the unelected Staunton Board of Zoning Appeals (BZA) made on June 12 regarding features of an illegal wall built at 1403 N. Augusta Street.
Council’s decision to defend its zoning laws continues a consistent approach it has taken, after repeated efforts to get voluntary compliance and even after the City proposed a compromise that, if it had been accepted by the property owner, would have ended the matter several years ago.
The illegal wall has been the subject of ongoing consideration for approximately 10 years. With this most recent action by City Council, this is the third time the City has had to seek judicial intervention.
- 2009: Originally, in 2009, the City had to get a judicial review to have reversed the first unlawful BZA “variance”—or special exception—to the City’s zoning laws for the same illegal wall. Read the Circuit Court’s order.
- 2009-2014: Read several of the letters sent by the City’s zoning administrator and zoning staff to the property owners and their legal counsel.
- 2014: After exhausting efforts to try to get voluntary compliance by the property owner just to lower the height of the wall some, the City proved in Circuit Court that the high wall was still illegal, but ultimately the property owner was allowed to seek yet another variance from the BZA. Read City Council’s 2014 resolution.
- 2018: Now, in this third instance, the City will have to seek judicial intervention to have reviewed the BZA’s latest decision. Read City Council's 2018 resolution.
For an understanding of the issue, historical background and the City’s next steps, also see the FAQs below.
Records of the June 12, 2018 Decision of the Staunton Board of Zoning Appeals
When did this issue begin?
In 2008, the Staunton Board of Zoning Appeals (BZA) erroneously and unlawfully granted variances, or special treatment, from longstanding provisions and interpretation of the City Code that reasonably limit the height of fences and walls and restrict the construction of fences and walls at the intersection of two streets.
There are valid and obvious public safety reasons for those restrictions, such as safe sight distance for motorists, the safety of police and other first responders when approaching property hidden behind a wall, and preservation of the open residential character of the neighborhood. No other property owner in the neighborhood has a similar wall.
Three Staunton property owners were granted variances by the BZA in 2008 – two were issued variances for illegal fences, and one variance was issued for an illegal wall. As a result of the BZA’s unlawful decisions, the City sought judicial review and intervention by the Staunton Circuit Court to correct and reverse the decisions of the BZA to grant special treatment in those cases.
The Circuit Court invalidated the BZA's actions in all three cases, concluding in its June 17, 2009 Final Order "that the decisions of the Staunton Board of Zoning Appeals to grant each of the three variances are REVERSED; and that the three variance applications are hereby denied.”
City staff endeavored to work cooperatively with the owners of the illegal wall and the two other property owners of illegal fences after the 2009 circuit court ruling. The owners of the illegal fences worked cooperatively with City zoning staff and voluntarily undertook to bring their fences into compliance with the City’s zoning law.
The owners of the illegal wall, however, ultimately did not cooperate, despite repeated communications through letters and other efforts over the years by City staff to get cooperation in accord with the circuit court’s original ruling that reversed the BZA. The wall has remained in violation of the City’s zoning restrictions on the location and height of walls and fences in residential areas since it was built 10 years ago.
Why has the City continued to pursue legal action about the illegal wall over the last 10 years?
The City actually has repeatedly tried to reach a conclusion long before now, as City Council’s most recently adopted resolution reflects. Following some further judicial proceedings in the Circuit Court, the Supreme Court of Virginia issued a decision that authorized the property owner to have yet another hearing before the BZA despite the extensive prior proceedings and the Circuit Court’s reversal of the BZA unlawful variance actions in 2009.
The zoning administrator, the City of Staunton, and the Council of the City of Staunton believe that once again the BZA’s action to grant a variance on June 12, 2018, was unlawful—and once again, the BZA’s action merits judicial review, as recommended by the City’s legal counsel.
Uniform enforcement of the zoning provisions of the Staunton City Code is important. It is the City’s obligation and firm conviction that zoning laws should be applied consistently to all citizens of the City, regardless of where the property may be located, regardless of the standing or identity of the property owner, and regardless of who may represent the property owner. The City’s commitment to the consistent application of the law has not changed.
How much has the City spent on legal fees in court?
The City has had to expend substantial resources in seeking judicial review and intervention by the Staunton Circuit Court to correct and reverse the unlawful decisions of the BZA and to seek enforcement. So far, in this matter which has been ongoing for 10 years, paid legal fees for the law firm’s services taking the lead on the court and more recent BZA proceedings amount to $79,971.92 since 2014.
The BZA’s actions on June 12, 2018 will cause the City to incur further expense to defend the City’s zoning laws and uphold what are believed to be the reasonable provisions of the City Code that a BZA is not allowed, in effect, to amend by the vote of three people who gave no reasons and analysis for the quick vote and allowed no discussion among the BZA members. Two of the BZA members voted against the variance, and the City believes these two members honored and applied the law.
Has the City tried to resolve this issue outside of court?
Yes. Since the Circuit Court’s 2009 ruling that reversed the BZA’s unlawful decisions, the City has sought voluntary compliance by the property owner numerous times. The City has repeatedly expressed a desire to work cooperatively with the property owner to achieve substantial compliance and has continued to seek compliance by communications through at least 10 letters over an extended period of years to no avail.
The City also offered a compromise: the property owner could lower the hollow cinderblock wall at the mortar joint just above the maximum height of 3 ½ feet, and the City would have its employees load the pieces removed with City equipment and dispose of the pieces and other debris at no charge.
It appeared beyond a reasonable doubt to City staff that despite efforts to get voluntary compliance, the property owner ultimately would not comply with the City Code and would continue to seek further delay. Consequently, the zoning administrator and the City had no choice but to pursue Council-authorized formal civil injunctive enforcement proceedings through the Circuit Court to assure substantial compliance. Even then, again, the City offered the compromise, which the property owner refused to accept and, in effect, then chose to continue the dispute.
Has the property owner of the illegal wall made any efforts to come into compliance with the City’s zoning laws?
No. The property owner has continued in violation of the City’s zoning laws for approximately 10 years, despite the City’s efforts to achieve compliance, and has repeatedly sought special treatment, despite the City’s clearly written zoning laws.
The property owner also sought to have the zoning administrator, in effect, modify the law under the City Code so that the property owner would not be required to comply with provisions that generally have applied to other properties in the City of Staunton in similar situations. The zoning administrator properly declined, concluding that he had no authority to override laws enacted by the City Council and so notified the property owner's legal counsel.
The property owner says a member of the City’s staff gave her permission to build the wall. Didn’t the City make a mistake?
Read an excerpt from the June 12, 2018 BZA hearing regarding what the property owners were told by the City.
The City’s restrictions on walls and fences are clearly stated in the City Code, readily accessible and understandable by anyone reading the Code online. The City believes the property owners were initially provided with accurate information—that the City Code clearly prohibited the high wall; however, for some reason, they later approached a different member of the city’s staff who provided inconsistent information about the City’s zoning laws.
The City recognizes that there was one City employee who apparently failed to reinforce accurately the obligation to follow the plainly written City zoning laws, while, at the same time, another employee originally provided them with accurate information on the matter. Still, no different than someone who might ask the City’s Chief of Police for permission to violate a posted City speed limit, no City employee—not the Chief of Police, the City Manager, or the Mayor—can authorize violation of City laws.
Furthermore, in September of 2007, while the wall was under construction, City staff visited the property owner at the property to issue a notice of violation and a stop-work order. At that time, the wall was not complete; in fact, City staff testified to stepping over a portion of the wall to walk to the front door of the home to issue the stop-work order. Nevertheless, the property owner continued with the construction of the wall.
Why wouldn’t City Council just drop it all and avoid incurring any further expense?
City Council’s resolution summarizes its reasons for adopting the resolution to seek judicial review. While the City could avoid spending any more resources at this time by not pursuing the appeal to the Staunton Circuit Court, the City believes that the BZA’s decision—yet once more—was unlawful, and the zoning laws deserve to be defended and it is only the means of judicial review that provides that opportunity.
Importantly, others have to respect the City’s zoning laws. There is a larger cost to Staunton citizens, who rely on those zoning laws to protect their neighborhoods, if there is no judicial review of a bare majority 3-2 vote of the BZA that with a quick vote essentially writes an exception into those laws.