THE CIRCUIT COURT OF THE CITY OF STAUNTON Charles L. Ricketts
PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and
McCullough, JJ., and Millette, S.J.
F. MILLETTE, JR.. SENIOR JUSTICE
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.
FACTS AND PROCEEDINGS
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.
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."
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.
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.
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."
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
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.
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
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 ...