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Board of Supervisors of Fairfax County v. Cohn

Supreme Court of Virginia

December 13, 2018

BOARD OF SUPERVISORS OF FAIRFAX COUNTY
v.
DOUGLAS A. COHN, ET AL.

          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Thomas P. Mann, Judge.

          OPINION

          S. BERNARD GOODWYN, JUSTICE.

         In this appeal, we consider whether the Circuit Court of Fairfax County erred when it held that Code § 15.2-2307(D) creates a vested right to an originally illegal use of a building or structure, after the owner has paid taxes to the locality for that building or structure for 15 years or more.

         I. Background

         Douglas A. Cohn and Kathryn J. Cohn (the Cohns) own real property located in McLean, Virginia (the Property). The Property is a lot located in an R-1 zoning district, which is zoned for "not more than one (1) dwelling unit on any one (1) lot," under Fairfax County Zoning Ordinance § 2-501. The Cohns have a house (Main House), which was built in 1962; a detached garage (Garage), which was built in 1963; and a garden house (Garden House), which was built in 1972, located on the Property.

         On August 4, 2016, the Fairfax County Zoning Administrator issued a Notice of Violation (NOV) to the Cohns regarding the Property. The NOV claimed that the Cohns were in violation of Zoning Ordinance § 2-501 because an inspection revealed that the Garage and the Garden House "have been converted to dwellings," resulting in "three (3) complete and separate dwellings" on the Property.[1]

         The NOV instructed the Cohns to remedy the violation by: (1) removing the "kitchens located in the garage and garden house dwellings," as well as "all other appliances and accoutrements used or intended for use for cooking or eating," and "all plumbing, electrical, and gas connections and piping" from those structures, (2) "[a]pplying for and obtaining approval . . . for a valid demolition permit for the removal of all electrical circuits, plumbing fixtures and piping and natural gas piping systems which were installed [in the Garage and Garden House]," and (3) "ceasing, on a permanent basis, the use of all but one (1) dwelling unit, on the property, and restoring the [Garage and Garden House] to their original [permitted] use."

         A. Board of Zoning Appeals

         The Cohns appealed the NOV to the Fairfax County Board of Zoning Appeals (BZA) on September 2, 2016. They contended that the Garage and Garden House were "grandfathered" because both were built as dwelling units-the Garage having been built with a connection to the septic tank in the Main House, and the Garden House having been built with its own septic tank-and no zoning violations had been issued since their construction. The Cohns contended that while they were renting the Main House in 1997, before they purchased the Property in 1998, the Garage and Garden House were also being rented, and the previous owner of the Property had informed them that the three units "had been rented to other people long before."

         On January 17, 2017, the Zoning Administrator provided a staff report (Report) articulating her position to the BZA concerning the Cohns' appeal. The Report noted that building permits were issued in 1963 and 1972 for the Garage and Garden House, respectively, and that both permits specifically noted that "there are no kitchens or bathrooms approved for the structure." The Report also explained that the permits designated the use of the first structure as a "garage" and the second structure as "a 'greenhouse for own private use.'" Copies of the permits were attached to the Report.

         The Report further explained the Zoning Administrator's position that all kitchen components must be removed from the Garage and Garden House because the Cohns had "illegally established two dwelling units within the detached structures" on the Property, and "the requirement to remove all components that comprise an additional kitchen that creates a separate dwelling unit is consistent with previous determinations by the Zoning Administrator and various court orders." The Zoning Administrator attached several circuit court decisions from other cases in which the court found a violation of Zoning Ordinance § 2-501, and ordered the property owners to "reduce the number of dwelling units to one by," among other things, removing excess kitchens, sealing excess utilities, and removing excess plumbing, electrical, and gas connections that serviced the excess dwelling units.

         The BZA held a hearing on March 1, 2017. During the hearing, Suzanne Gilbert (Gilbert), an assistant to the Zoning Administrator, testified on behalf of the Board of Supervisors of Fairfax County (the Board).[2] In addition to noting the information in the Report, Gilbert explained that in 2008, the Fairfax County Department of Tax Administration (Department of Tax Administration) "conduct[ed] a neighborhood walk, [] to note exterior changes, and based on a conversation with the [Cohns]," learned of the kitchens and bathrooms located within the Garden House and Garage. She stated that the Department of Tax Administration thereafter began designating the Garage and Garden House as dwellings "purely for identification purposes only." The tax rate and the amount paid for taxes did not change as a result of the new designations.

         In response, the Cohns admitted that neither the Garage nor the Garden House "conform to the original building permits," and that it was likely the use of the Garage and the Garden House as dwellings "was established unlawfully." They also agreed that the Department of Tax Administration used a mass assessment approach when it assessed the Property for taxes, and that the value assessed did not change after the Garage and Garden House were designated as dwellings by the Department of Tax Administration.

         However, the Cohns argued that because they had paid taxes on the Property for more than 15 years, Code § 15.2-2307(D) protects the buildings and structures on the Property and their use as dwellings from being declared unlawful. The Cohns noted that in the tax assessments, the value assessed on the Property did not change regardless of how the Garage and Garden House were designated, which proves they paid taxes on those structures before and after they were designated as dwellings by the Department of Tax Administration.

         On March 7, 2017, the BZA issued a letter upholding the determination of the Zoning Administrator.

         B. Circuit Court

         On March 28, 2017, the Cohns appealed the decision of the BZA to the circuit court. The circuit court ...


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