In a case involving a Chesapeake carport, the Virginia Court of Appeals ruled that zoning violation notices issued by a local government must clearly state that the property owner’s failure to contest the violation within 30 days means the decision is legally “final and unappealable.” 

“Without the finality language, a property owner might logically conclude that the failure to appeal to the [board of zoning appeals] within 30 days would foreclose an appeal in that forum, but that they could later appeal to a court,” Judge Daniel E. Ortiz wrote. 

This story was reported and written by our media partner The Virginia Mercury

The case stems from a freestanding carport built without a permit on a residential property in Chesapeake almost two decades ago. In 2020, two years after new owner Donald Calway bought the property, a city code compliance inspector issued him a notice of violation and ordered him to fix it. 

According to the appeals court, fine print at the bottom of the original notice informed Calway he could contest the violation to the board of zoning appeals within 30 days “but did not mention that failure to appeal would make the decision final and unappealable.” 

The Virginia Court of Appeals found the omission of that statement made the notice “defective” and therefore made a later penalty unenforceable because state law requires that any notice of violation “include a statement informing the recipient … that the decision shall be final and unappealable if not appealed within 30 days.” 

While the city of Chesapeake argued it had satisfied the requirements of the law by including a statement that additional information could be found on the city’s website, the judges rejected that argument. 

“The statute places the burden on the zoning administrator to clearly delineate the appeal rights of property owners,” Ortiz wrote, adding: “Each [notice of violation] must describe both (1) the right to appeal within 30 days and (2) the finality of the decision after 30 days if not appealed.” 

The appeals court noted that its ruling is in line with a 2008 advisory opinion from then-Attorney General Bob McDonnell that a notice of violation “must include a statement informing the recipient … that the decision is final and unappealable if not so appealed in thirty days.” 

However, the court left the door open for Chesapeake to continue pursuing enforcement actions against Calway. Because a later letter from the city zoning administrator declaring the carport illegal included all of the statements required under the law, the judges noted it “is potentially shielded from further attack in this or any future litigation.” 

John Koehler, the attorney representing Calway, said, “We’re holding our breath to see what the city does. 

“Right now we’re hoping that the city will simply allow him to keep” the carport, Koehler said, noting that other homes in the neighborhood have similar structures and that Calway and the prior owner had paid property taxes that included the value of the carport for over 15 years. “It’s simply a matter of fairness, I think, given that the structure has been there since 2004.”

Asked about whether the city intends to appeal the decision or pursue further enforcement actions, Chesapeake Director of Public Communications Heath E. Covey said in an email, “The city respectfully disagrees with this ruling and is currently evaluating next steps.”