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Boasso America Corp. v. Zoning Administrator of City of Chesapeake

Supreme Court of Virginia

March 2, 2017

BOASSO AMERICA CORPORATION, d/b/a GREENSVILLE TRANSPORT CO.
v.
ZONING ADMINISTRATOR OF THE CITY OF CHESAPEAKE, ET AL.

         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Timothy S. Wright, Judge

         PRESENT: All the Justices

          OPINION

          STEPHEN R. McCULLOUGH JUSTICE

         This appeal calls upon us to construe Code § 15.2-2314, which governs appeals from a board of zoning appeals to a circuit court. We conclude that to initiate a proceeding under Code § 15.2-2314, a litigant must name the local governing body as a necessary party in the petition, and the litigant must do so within the 30-day window provided by Code § 15.2-2314. We further hold that a litigant may not amend the petition after the 30-day period to belatedly add the local governing body. Accordingly, we affirm the judgment of the circuit court, which dismissed a petition for writ of certiorari for failure to name the local governing body in the petition and denied leave to amend after the 30-day period had expired.

         BACKGROUND

         Following an adverse decision by the Zoning Administrator for the City of Chesapeake, Boasso America Corporation appealed to the Board of Zoning Appeals. See Code § 15.2-2311. Because the Board of Zoning Appeals was equally divided, the split vote resulted in affirmance of the Zoning Administrator's decision. The Board of Zoning Appeals made its decision on April 23, 2015. Boasso next sought to appeal the decision of the Board of Zoning Appeals by filing a petition for writ of certiorari. It did so on May 21, 2015, in the Circuit Court for the City of Chesapeake. As required by the first paragraph of Code § 15.2-2314, the petition was styled:

IN RE: April 23, 2015, Decision of the Board of Zoning Appeals for the City of Chesapeake, Virginia.

         The petition did not identify the City Council for the City of Chesapeake as a party.

         On June 30, 2015, the Zoning Administrator moved to dismiss the petition on the ground that Boasso had "failed to timely name or serve the City Council for the City of Chesapeake, a necessary party by statute." In response, Boasso moved to "amend/clarify as to additional parties" and averred that on July 1, 2015, Boasso requested that a summons be issued for service of the petition on the City Council and the City Attorney for the City of Chesapeake, and that service was made on both on July 9, 2015. Boasso contended that under Rules 1:8, 3:12, and 3:16, the trial court could grant leave to amend to include these additional parties. Boasso also filed an amended petition for a writ of certiorari, which stated that "[p]ursuant to Code of Virginia § 15.2-2314, necessary parties to this case are, in addition to Petitioner, the City of Chesapeake City Council, as a Defendant-Respondent, and the landowners of the Property, as interested parties."

         In response, the Acting City Clerk, on behalf of the Mayor, moved to quash service of process and filed a plea in bar contending that the failure to name or serve the City Council within 30 days of the decision of the Board of Zoning Appeals was fatal to the petition. Boasso opposed the motion. The circuit court agreed with the Acting City Clerk and the Mayor. The court concluded that Boasso's failure to name in the petition all necessary parties in accordance with Code § 15.2-2314 was indeed fatal to the petition. The court dismissed Boasso's petition with prejudice, and we thereafter granted this appeal.

         ANALYSIS

         This case presents a question of statutory interpretation, which we review de novo on appeal. Renkey v. County Board, 272 Va. 369, 373, 634 S.E.2d 352, 355 (2006). In construing a statute, "[o]ur central focus is to ascertain and give effect to the intention of the General Assembly." Miller v. Highland County, 274 Va. 355, 364, 650 S.E.2d 532, 535 (2007). "We determine that legislative intent from the words used in the statute." Id.

         A litigant must follow a number of formal requirements when appealing from one adjudicative body to another. These requirements vary based on the type of proceeding. For example, appeals to this Court are instituted by filing a notice of appeal pursuant to Rule 5:9. Code § 15.2-2314 governs appeals from the decision of a board of zoning appeals to a circuit court. To institute a proceeding under Code § 15.2-2314, a litigant must file a petition for a writ of certiorari with the clerk of the circuit court. The petition must be filed within 30 days of the decision of the board of zoning appeals, and it must specify the grounds upon which the petitioner is aggrieved. Code § 15.2-2314.[1]

         We held, under a predecessor version of Code § 15.2-2314, that to institute such a proceeding, a petitioner must file a "proper petition" within the prescribed time period. Board of Supervisors v. Board of Zoning Appeals, 225 Va. 235, 238, 302 S.E.2d 19, 21 (1983). Under this prior version of the statute, we identified the Board of Zoning Appeals ...


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