894 S.E.2d 373
Va. Ct. App.2023Background:
- Prior owner installed a freestanding carport (circa 2004–2005) without a permit; Donald Calway bought the property in May 2018.
- On Aug. 19, 2020 the City issued a notice of violation (NOV) stating a right to appeal to the BZA within 30 days, the $175 appeal fee, and a website for more information, but it omitted an explicit statement that the decision would be "final and unappealable" if not appealed.
- Calway did not appeal the AUG 19 NOV; the City issued a summons (Oct. 7, 2020) for civil penalty; Calway later received a Nov. 4 determination letter that included the required finality language but arrived after the summons.
- The General District Court dismissed the City’s complaint; the circuit court reversed and ordered removal of the carport, treating the zoning determination as a "thing decided" because Calway had not appealed to the BZA.
- The Court of Appeals held the Aug. 19 NOV defective for failing to state that the decision becomes final and unappealable if not appealed, declared the enforcement action void, and reversed the circuit court.
Issues:
| Issue | Calway's Argument | City of Chesapeake's Argument | Held |
|---|---|---|---|
| Does Code § 15.2-2311(A) require an NOV to include explicit language that the decision will be "final and unappealable" if not appealed? | The statute requires explicit finality language; omission defeats notice. | The NOV’s statement of a 30-day appeal right and website reference gave adequate notice; exact wording not required. | The statute requires both elements; omission of explicit finality language made the NOV defective. |
| What is the legal effect of a defective NOV under § 15.2-2311? | A defective NOV does not start the 30-day appeal period; enforcement actions based on it are voidable. | The City argued the enforcement could proceed despite a technical defect. | Failure to comply with statutory notice renders enforcement action voidable; court cannot assess penalties while the appeal period has not toll. |
| Can a later determination letter that contains correct appeal language cure an earlier defective NOV or validate a summons already issued? | Later complete notice cannot revive an enforcement action that already relied on a defective NOV. | The City contended the Nov. 4 determination letter cured any defect and provided full notice. | The later letter did not cure the original defective NOV or validate the summons because it postdated the enforcement process; the City could have reissued a compliant summons. |
| Should the court resolve Calway’s vested-rights claim now? | Calway urged the vested-rights issue as threshold relief. | The City argued merits should be addressed once notice issues resolved. | Court declined to reach vested-rights; decided case on narrow statutory‑notice grounds. |
Key Cases Cited
- Eubank v. Thomas, 300 Va. 201 (2021) (administrative decisions become a "thing decided" if not timely appealed to the BZA)
- Bd. of Supervisors v. Rhoads, 294 Va. 43 (2017) (statutory interpretation reviewed de novo)
- Hubbard v. Henrico Ltd. P’ship, 255 Va. 335 (1998) (every part of a statute presumed to have effect; plain‑meaning construction)
- Barr v. Town & Country Props., Inc., 240 Va. 292 (1990) (courts must give effect to legislature's chosen words)
- Jones v. Commonwealth, 293 Va. 29 (2017) (distinction between void and voidable matters; courts' failure to comply with procedural requirements can render actions voidable)
- Rook v. Rook, 233 Va. 92 (1987) (judgments void if entered by a court lacking authority)
- Nelson v. Warden, 262 Va. 276 (2001) (discussing when matters are void versus voidable)
- Beck v. Shelton, 267 Va. 482 (2004) (Attorney General opinions are entitled to due consideration)
- Commonwealth v. White, 293 Va. 411 (2017) (judicial restraint: resolve cases on narrowest grounds available)