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Chilton-Belloni v. Angle

Supreme Court of Virginia

November 9, 2017



          PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.



         In this appeal of two related zoning actions tried together, we address whether a circuit court properly relied on principles of res judicata to refuse to stay an injunction brought by the City of Staunton's Zoning Administrator against the landowner pending further proceedings before the City's Board of Zoning Appeals, and whether the circuit court properly granted the injunction against the landowner. For the reasons stated herein, we conclude that the circuit court erred, and we will reverse and remand as to the injunction. We decline to address the accompanying appeal from the denial of the landowner's petition for a writ of mandamus.


         In 2006, a building official from the City of Staunton visited the home of Frank Belloni (now deceased) and Debra Chilton-Belloni to review the site and plans to build a wall. Their historic home was located on a now-busy street, and the purpose of the wall was primarily for sound proofing and privacy. The building official informed them they could legally build the wall, and the Bellonis began construction of the wall consistent with those plans.

         In 2007, John Glover, then Zoning Administrator for the City of Staunton, advised the Bellonis that the nearly completed wall in fact violated a Staunton zoning ordinance. The essence of the violation included obstruction of the line of sight at an intersection and wall height exceeding the permitted three and a half feet. He acknowledged that "there may have been a miscommunication with my staff, but that does not change the fact that the wall is in violation of Section 18.120.010(2) of the City of Staunton Code."

         The Bellonis sought a variance from the Board of Zoning Appeals, which was granted in February 2008. Glover and the City then appealed the variance to the circuit court, arguing that the BZA lacked the authority under current law to issue the variance. The relevant statute at the time required a "clearly demonstrable hardship approaching confiscation" in order to grant a variance. Code § 15.2-2309 (2007). Agreeing with the City, the circuit court reversed the decision granting the variance by a final order entered June 17, 2009.

         The Bellonis did not take down or alter the wall, and the City did not immediately pursue action to ensure that they did so. In July of 2009, the statute was changed so as to delete the "approaching confiscation" language. 2009 Acts ch. 206. In 2011, the City filed criminal charges against the Bellonis for failure to remove the wall, but the prosecution was found time-barred.

         In 2013, the wall was damaged by a third party. In September 2013, Chilton-Belloni, now the sole owner of the property due to her husband's recent passing, received a letter from the new Zoning Administrator, Sharon Angle. The letter advised her that the City had observed "some missing pieces [of the wall], " and Chilton-Belloni should "be advised that any action to do any work on the wall, other than to bring the entire wall into compliance, will be considered yet another violation."

         In the subsequent months, numerous letters were exchanged between Angle and Chilton-Belloni. On May 9, 2014, in response to demands that Chilton-Belloni demolish the wall, Chilton-Belloni requested a modification or variance from the zoning ordinance, citing hardship. She noted that the BZA had agreed that the original "misunderstanding" had constituted undue hardship, but that the state of the law at the time resulted in the circuit court reversing the ruling. However, in light of the 2009 change in the statute, deleting the "approaching confiscation" requirement, Chilton-Belloni requested a modification or variance at this time.

         On May 30, 2014, Angle replied in a letter she did not have that power to authorize a modification or variance and that the issue was already fully adjudicated. Additionally, while she expressed no view on the changes to Code § 15.2-2309, she stated the provisions suggested no retroactive intent.

         On June 5, 2014, Chilton-Belloni filed an appeal of Angle's decision to the BZA. She sought a variance, acknowledging that she had sought one previously, prior to the statutory change. Chilton-Belloni contends that Angle refused to convene the BZA for a hearing on the matter following her filing.

         On July 10, 2014, pursuant to Code §§ 15.2-2208(A) and 15.2-2286(A), Angle sought an injunction compelling Chilton-Belloni's compliance with the City Code and removal and remediation of the wall. Chilton-Belloni moved to stay the circuit court proceedings to allow the BZA to consider her ...

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