What notice and participation rights do neighbors have when a property owner appeals a zoning administrator's decision to the local Board of Zoning Appeals?

Plain-English summary

A Rappahannock County dispute set up the question. The county BZA had issued a conditional use permit on the condition that the owner complete certain road improvements within a specified time. The improvements were not done, and the Zoning Administrator declared the permit expired. The owner appealed to the BZA. Neighboring landowners said they had a statutory right to notice of the hearing and a right to participate as "aggrieved persons." The county attorney asked the AG what notice was required and who could participate.

The Attorney General laid out three answers. First, the BZA must give notice of the hearing as required by Code § 15.2-2204, which means published public notice and written notice to adjacent property owners (those abutting the subject property and those immediately across the street or road from it). The Supreme Court of Virginia has held this notice requirement applies to BZA hearings on variances and special exceptions, and the same statutory language extends it to appeals. Second, the BZA must allow affected persons to participate. Code § 15.2-2204(A) requires notice of the hearing at which "persons affected may appear and present their views," and § 15.2-2312 requires notice both to the public and to "parties in interest." Third, Code § 15.2-2308(C) requires the BZA to give "the applicant, appellant or other person aggrieved" equal time with the local government's staff.

"Aggrieved" carries a specific meaning from Supreme Court of Virginia case law (most recently Friends of the Rappahannock v. Caroline County (2013)). A two-part test applies: (1) the person must own or occupy real property in close proximity to the subject property, and (2) must demonstrate particularized harm or a burden different from that suffered by the general public. Whether any specific neighbor satisfies the test is fact-dependent, and the AG declined to opine on that piece.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's BZA scheme sits across several Code sections. Code § 15.2-2309 lists the powers of a BZA, including authority to hear appeals from zoning administrator decisions, variances, and special exceptions. For each category, the statute says the BZA may decide "after notice and hearing as provided by § 15.2-2204." Code § 15.2-2204 sets out the notice requirements: published notice in general, and written notice to adjacent property owners when the matter involves a request to change the zoning classification of 25 or fewer parcels. The statute is silent about the type of notice required for BZA appeals, variances, and special exceptions, except that someone other than the property owner appealing must give written notice to the owner.

The Supreme Court of Virginia has filled some of the gap. In Lawrence Transfer & Storage (1985), the Court held that adjacent property owners abutting and across the road from the affected property were entitled to written notice of a BZA hearing considering a conditional use permit. Parker v. Miller (1995) reached the same result for a variance: without written notice to an abutting owner, the BZA had no authority to grant the requested variance. The AG extended that reasoning to appeals from zoning administrator decisions, on the basis that the same statutory notice language applies to all three BZA functions, and that reading the language to exclude appeals would render some of it meaningless.

The participation question turns on a different statute, Code § 15.2-2308(C), which says the BZA must give "the applicant, appellant or other person aggrieved under § 15.2-2314" an equal amount of hearing time as the local government's staff. The cross-reference to § 15.2-2314 is significant: that section governs appeals of BZA decisions to circuit court and uses "aggrieved" in the same way. Supreme Court of Virginia decisions interpreting "aggrieved" (including Friends of the Rappahannock, Vulcan Materials, Va. Beach Beautification Comm'n) require both proximity to the subject property and particularized harm distinct from harm suffered by the public generally.

Common questions

What notice does a BZA have to give for an appeal hearing?
According to this opinion: (1) published public notice of the hearing date, time, and place; (2) written notice to adjacent property owners (those abutting and immediately across the street or road from the subject property). The written notice may be sent by first-class mail rather than registered or certified mail.

Can the BZA's notice rules differ from county to county?
Code § 15.2-2206 lets a locality adopt an ordinance requiring BZA applicants to take on responsibility for required notices, including written notice. But the underlying statutory floor (published notice plus written notice to adjacent owners) cannot be reduced.

Who is an "aggrieved party" entitled to equal speaking time at the BZA hearing?
A person who (1) owns or occupies real property in close proximity to the subject property, and (2) can demonstrate particularized harm or a burden different from that suffered by the public generally. Both parts have to be satisfied; mere proximity alone is not enough.

Can the public attend and speak at a BZA appeal hearing?
Yes. Affected persons may participate. The "aggrieved party" category is special only in that those persons get an explicit guarantee of equal time with the local government's staff. The BZA may allow other attendees to speak, but the equal-time guarantee under § 15.2-2308(C) does not extend to them.

What is the difference between BZA appeals from a zoning administrator and BZA decisions on conditional use permits?
The AG noted in a footnote that this opinion concerns the BZA acting in a quasi-judicial capacity to hear and decide an appeal. When a BZA acts in a legislative capacity such as deciding a conditional-use-permit request, the rules and considerations may differ. Some jurisdictions, including Rappahannock, have CUPs initially issued by the BZA itself.

Why did the AG decline to say whether the specific neighbors in this case were "aggrieved"?
That determination requires applying the two-part test to specific facts (the neighbors' proximity to the property, the alleged harm they would suffer). The AG traditionally declines to make those factual judgments. Each neighbor would have to satisfy both parts of the test on their own circumstances.

What if the BZA fails to give the required notice?
The Supreme Court of Virginia's Parker v. Miller held that without proper written notice to an abutting owner, the BZA does not have authority to grant the matter before it. The implication is that a decision rendered without the required notice may be subject to challenge.

Citations

• Va. Code § 15.2-2204 (notice requirements)
• Va. Code § 15.2-2308(C) (equal time for aggrieved parties)
• Va. Code § 15.2-2309 (BZA powers)
• Va. Code § 15.2-2312 (notice for BZA proceedings)
• Va. Code § 15.2-2314 (appeals to circuit court; "aggrieved" defined)
• Lawrence Transfer & Storage Corp. v. Bd. of Zoning Appeals, 229 Va. 568 (1985)
• Parker v. Miller, 250 Va. 175 (1995)
• Friends of the Rappahannock v. Caroline County Bd. of Supervisors, 286 Va. 38 (2013)
• Vulcan Materials Co. v. Bd. of Supervisors, 248 Va. 18 (1994)
• Va. Beach Beautification Comm'n v. Bd. of Zoning Appeals, 231 Va. 415 (1986)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2018/17-046Goff-BZA-Appeals-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 27, 2018

Arthur L. Goff, Esquire
Rappahannock County Attorney
Post Office Box 399
Washington, Virginia 22747

Dear Mr. Goff:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issue Presented
You have asked what public notice and what public participation, if any, are required for an
appeal of a determination by a zoning administrator to the local board of zoning appeals (BZA).

Background
You relate that the Rappahannock County BZA issued a conditional use permit on the condition
that certain road improvements be completed within a specified time.[1] The owner of the property for
which the conditional use permit was issued failed to complete the improvements within the required
time, and the permit expired. The Zoning Administrator so notified the owner. The owner appealed that
decision to the BZA. The neighboring landowners asserted a statutory right to notice of the hearing, as
well as the right to participate in the hearing as aggrieved persons.

Applicable Law and Discussion

1. Notice of the BZA Hearing
   The initial issue is who is legally entitled to notice of an appeal to the BZA from a determination
   by the Zoning Administrator that a conditional use permit has expired. Section 15.2-2309(3) empowers a
   BZA "[t]o hear and decide appeals from the decision of the zoning administrator after notice and hearing
   as provided by § 15.2-2204."[2] This subsection further states "... when giving any required notice to the
   owners, their agents or the occupants of abutting property and property immediately across the street or
   road from the property affected, the board may give such notice by first-class mail rather than by
   registered or certified mail."[3] This precise language is used elsewhere in § 15.2-2309 in reference to the
   grant of variances[4] and special exception permits.[5]

Section 15.2-2204 sets forth various types of decisions for which there are notice provisions,
including: amendment of a comprehensive plan, zoning change of 25 or fewer parcels, zoning of part of a
tract of not less than 500 acres owned by the Commonwealth or the federal government, zoning change of
more than 25 parcels, and zoning change that decreases density.[6] Written notice to adjacent landowners is
expressly required for a request to change the zoning classification of 25 or fewer parcels of land.[7] The
statute is silent as to the type of notice required for BZA proceedings, including appeals and requests for
variances and special exceptions, with the exception that appeals to the BZA by someone other than the
owner of the property or the owner's agent require written notice to such owner within ten days of receipt
of the request.[8]

Additional notice provisions relative to BZA proceedings are found in § 15.2-2312, which
requires public notice of a hearing to consider an appeal and "due notice to the parties in interest."[9]
Section 15.2-2206 authorizes localities to adopt an ordinance requiring BZA applicants to assume
responsibility for "all required notices," including written notice.[10] Similar to § 15.2-2309 this statute
specifically requires adherence to § 15.2-2204.

As a basic principle of statutory interpretation, the "primary objective is to ascertain and give
effect to legislative intent" based on the words contained in the statute.[11] "[I]t is well established that
every act of the legislature should be read so as to give reasonable effect to every word and to promote the
ability of the enactment to remedy the mischief at which it is directed."[12]

The legislative intent of § 15.2-2204 is "to afford property owners who are closest to the land
involved an opportunity to be heard."[13] In a case involving the BZA's consideration of an application for
a conditional use permit, the Supreme Court of Virginia found that adjacent property owners abutting and
across the road from the affected property were entitled to written notice as required by § 15.2-431, now
§ 15.2-2204.[14] A similar ruling was made in a case involving a request for a variance in which the owner
of an abutting lot was not given written notice of the hearing. The Supreme Court ruled that without this
written notice, the BZA did not have the authority to grant the requested variance.[15]

Although the Supreme Court has not yet considered whether written notice must be given to
adjacent property owners for appeals to BZA, the General Assembly used the same language in requiring
notice for appeals as it did for variances and special exceptions. It follows that the language should be
construed in the same manner to require written notice to adjacent property owners for appeals before the
BZA. Further, if written notice were not required for appeals, the statutory language allowing such notice
to be sent by first-class mail would have no meaning. "The rules of statutory interpretation argue against
reading any legislative enactment in a manner that will make a portion of it useless, repetitious, or
absurd."[16]

Based on the clear legislative intent in Chapters 22 of Title 15.2 to afford notice to adjacent
property owners who are most likely to be affected by the decision of the BZA, and based upon the
decisions of the Supreme Court with respect to variances and special exceptions, it is my opinion that
written notice to adjacent property owners is required for BZA hearings on appeals of a zoning
administrator's determination.

2. Participation in the BZA Hearing
   Your next question is whether adjacent landowners have a right to participate in the appeal to the
   BZA. There are several statutes relevant to this inquiry. Section 15.2-2309(3) requires notice and
   hearing as required by § 15.2-2204, which, in turn, requires notice of the time and place of the hearing at
   which "persons affected may appear and present their views[.]"[17] Section 15.2-2312 requires notice to the
   public and the parties in interest. Public notice is a means of giving notice to the general population of a
   proceeding occurring at a specific date, time, and place. The term "parties in interest" signifies those
   persons having a substantive interest in the outcome of a proceeding or protecting a right in the matter.[18]
   Finally, § 15.2-2308(C) gives the appellant, applicant, and aggrieved parties an equal amount of time to
   participate in a BZA hearing as is given the staff of the local governing body. In relevant part, the statute
   provides:

Notwithstanding any other provision of law, general or special, for the conduct of any
hearing ... the board shall offer an equal amount of time in a hearing on the case to the
applicant, appellant or other person aggrieved under § 15.2-2314 [....][19]

Section 15.2-2314 governs the appeal of a BZA decision to the circuit court and provides that
"any person or persons jointly or severally aggrieved" by a decision of the BZA may file a petition with
the court specifying the grounds upon which aggrieved within 30 days of the decision. The court "shall
allow a writ of certiorari to review the decision" and may permit intervention by persons jointly or
severally aggrieved.[20]

Section 15.2-2314 does not define the term "aggrieved." Because there is no statutory definition,
the legislative intent must be discerned under the rules of statutory construction. The term "aggrieved"
has been discussed in several decisions of the Supreme Court of Virginia. The most recent case is
Friends of the Rappahannock v. Caroline County Board of Supervisors,[21] which involved an appeal of a
land use decision. A special exception permit had been granted for sand and gravel mining operations on
a tract of land fronting on a river.[22] Several nearby landowners and a conservation organization appealed
the grant of the permit to circuit court.[23] A key issue was whether they had standing to proceed with the
case.[24] In holding there was no standing, the Supreme Court applied the "aggrieved person" standard,
which entails a two-part test:

First, the complainant must own or occupy real property within or in close proximity to
the property that is the subject of the land use determination, thus establishing that it has
a direct, immediate, pecuniary, and substantial interest in the decision.

Second, the complainant must allege facts demonstrating a particularized harm to some
personal or property right, legal or equitable, or imposition of a burden or obligation upon
the petitioner different from that suffered by the public generally[....] Absent an
allegation of injury or potential injury not shared by the general public, complainants
have not established standing [....][25]

Applying this standard in the present context, the questions are, first, whether the particular
neighbors who wish to participate in the BZA appeal as an "aggrieved party" own or occupy real property
in close proximity to the subject property; and, second, whether they can demonstrate a particularized
harm, or a burden or obligation different from that suffered by the public generally. If they satisfy both
parts of this test, such persons are "aggrieved," and the BZA must provide them with equal time to
participate the hearing, along with the applicant and appellant, as the staff of the local government.[26]

Your specific question is whether any particular landowner is "aggrieved" by the determination
of the Zoning Administrator that the conditional use permit had expired and therefore expressly entitled
by statute to participate in the hearing for a specified period of time. Because that question is fact-specific, I express no opinion on whether any particular landowner meets the two-prong test described
above. Attorneys General consistently have declined to render official opinions that require factual
determinations.[27]

Conclusion
For the foregoing reasons, it is my opinion that the BZA is required by § 15.2-2204 to publish
notice of a public hearing for the BZA's consideration of an appeal, and to give written notice of the
hearing to the adjacent property owners. It is my further opinion that the BZA must allow any affected
person to participate in the hearing, and allow any aggrieved party to address the BZA for a specified
amount of time as provided in § 15.2-2308(C). An aggrieved person is one who owns or occupies nearby
property and can demonstrate a particularized harm, or the imposition of a burden or obligation different
from that suffered by the public generally.
With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. Rappahannock County is one of a number of jurisdictions in which conditional use permits (sometimes also known as special use permits or special exception permits) are initially issued by the BZA rather than the zoning administrator or the local governing body. See RAPPAHANNOCK COUNTY, VA., CODE ch. 170, art. VI, § 170-47(D). This opinion concerns the BZA acting in a quasi-judicial capacity while hearing and deciding an appeal. It does not apply to a BZA acting in a legislative capacity such as when deciding a request for a conditional use permit.
2. Section 15.2-2309(3) (2018).
3. Id.
4. Section 15.2-2309(2).
5. Section 15.2-2309(6).
6. Section 15.2-2204 (2018).
7. Section 15.2-2204(B).
8. Section 15.2-2204(H).
9. Section 15.2-2312 (2018).
10. Section 15.2-2206 (2018).
11. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (internal quotation marks and citation omitted); see also Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003).
12. Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984).
13. Lawrence Transfer & Storage Corp. v. Bd. of Zoning Appeals, 229 Va. 568, 571, 331 S.E.2d 460, 462 (1985).
14. Id.
15. Parker v. Miller, 250 Va. 175, 459 S.E.2d 904 (1995).
16. Jones, 227 Va. at 181, 314 S.E.2d at 64 (emphasis added).
17. Section 15.2-2204(A).
18. Party, BLACK'S LAW DICTIONARY 1297-98 (Bryan A. Garner et al. eds., 10th ed. 2014) (describing the term "party in interest" as archaic and directing the reader instead to the term "real party in interest," meaning a person who "possesses the right sought to be enforced").
19. Section 15.2-2308(C) (2018) (emphasis added). Although you maintain that this statute does not apply to consideration of an appeal, based on the last sentence of § 15.2-2309(1), that subsection merely governs the burden of proof and mandates the consideration of applicable ordinances, laws, and regulations. Notice of and participation in the BZA hearing is addressed in subsection (3) of the same statute and is not exclusive of other laws.
20. Section 15.2-2314 (2018).
21. 286 Va. 38, 743 S.E.2d 132 (2013).
22. Id. at 41-42, 743 S.E.2d at 133.
23. Id.
24. Id. at 43, 743 S.E.2d at 134.
25. Id. at 48-49, 743 S.E.2d at 137 (citations and quotation marks omitted). See also Deerfield v. City of Hampton, 283 Va. 759, 766, 724 S.E.2d 724, 727 (2012) (holding that a committee formed under the city charter had no standing, because it had no rights under the charter to file suit challenging a proposed land use after the purpose for which the committee had been formed had ceased to exist); Vulcan Materials Co. v. Bd. of Supervisors, 248 Va. 18, 24, 445 S.E.2d 97, 100 (1994) (quoting Va. Beach Beautification Comm'n v. Bd. of Zoning Appeals, 231 Va. 415, 419-20, 344 S.E.2d 899, 902-03 (1986) ("The meaning of 'aggrieved' is settled. When used in a statute, the term contemplates 'a denial of some personal or property right, legal or equitable.'")).
26. Section 15.2-2308(C) requires the BZA to offer an equal amount of time to the applicant, appellant or other person aggrieved and the staff of the local governing body. It does not prohibit other parties attending the hearing, from participating, albeit without a guarantee of equal time.
27. 2009 Op. Va. Att'y Gen. 80, 81 (citing 2002 Op. Va. Att'y Gen. 321, 325 and opinions cited therein).