All the Justices
KIM D. TRAN AND JOSEPH NGUYEN,
T/A ROLLING VALLEY NAIL CARE
Record No. 992812
OPINION BY JUSTICE DONALD W. LEMONS
November 3, 2000
BOARD OF ZONING APPEALS OF
FAIRFAX COUNTY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
In this appeal, we consider three interrelated issues:
whether the Board of Zoning Appeals’ (“BZA”) failure to render
a decision on an appeal within 90 days in accordance with Code
§ 15.2-2312 deprived the BZA of jurisdiction to act; whether
continuances allowed by The Zoning Ordinance of Fairfax
County, Virginia 1 § 18-306(3) conflict with provisions of Code
§ 15.2-2312; and whether the BZA’s failure to act for 550 days
resulted in a denial of due process.
Kim D. Tran and Joseph Nguyen, trading as Rolling Valley
Nail Care (“Nail Care”) leased from Harry L. Bedsworth
(Bedsworth) an office condominium located in the Rolling
Valley Professional Center (“Center”), a commercial townhouse
development, consisting of 35 units located in 7 separate
The regulations contained in The Zoning Ordinance of
Fairfax County, Virginia constitute Chapter 112 of the 1976
Code of the County of Fairfax, Virginia and will be referred
to as “zoning ordinance.” All references herein to “Code”
will refer to the Virginia Code.
townhouses or low-rise buildings.
The property leased to Nail
Care was zoned C-1, Low-rise Office Transitional District.
On October 4, 1996, the Zoning Administrator granted a
Non-Residential Use Permit (“Non-RUP”) to Nail Care entitling
Nail Care to operate a personal service establishment as an
accessory service use.
On November 1, 1996, the Rolling
Valley Professional Center Condominium Unit Owners Association
(“the Association”) filed an application for appeal with the
BZA challenging the issuance of the Non-RUP to Nail Care.
A public hearing on the matter was originally scheduled
for January 28, 1997, but was rescheduled to March 4, 1997, at
the request of the Association to “allow Zoning Enforcement
the time necessary to evaluate the situation to determine if a
violation of the Zoning Ordinance exist[ed].”
The March 4,
1997 hearing was again rescheduled at the request of the
Association in order to allow the BZA “additional time to
further investigate the circumstances surrounding the issuance
of the Non-Residential Use Permit.”
The hearing was
rescheduled five more times, always at the request of the
Association, until it finally took place on May 5, 1998, 550
days after the date of the Association’s appeal.
was made by Nail Care to any of these continuances.
unanimous decision dated May 13, 1998, the BZA reversed the
Zoning Administrator’s issuance of the Non-RUP.
Nail Care instituted two actions in the Circuit Court of
Fairfax County on June 2, 1998.
The first action was a
petition for a writ of certiorari seeking reversal of the
BZA’s decision and the second was a petition for declaratory
judgment asking the trial court to declare zoning ordinance
§ 18-306(3) invalid because it conflicted with Code § 15.1496.2.
Additionally, the Zoning Administrator filed a bill of
complaint for declaratory judgment and injunctive relief
seeking enforcement of the zoning ordinance and injunctive
relief against further violation.
The three proceedings were
The trial court upheld the position taken by the BZA,
holding that “the provision of Va. Code § 15.2-2312 relating
to the time for decision of appeal is merely directory and
procedural, not mandatory and jurisdictional, and therefore
the BZA did not lack jurisdiction to act upon such appeal
beyond ninety days.”
Having determined that the BZA did not
lose power to hear the matter after passage of 90 days from
the filing of the appeal from the zoning administrator’s
decision, the trial court held that zoning ordinance § 18306(3) permitting continuances is not in conflict with Code
Finally, the trial court declared that Nail
Care’s use of the premises violated applicable zoning
requirements and enjoined future violation.
Nail Care appeals
the adverse judgment of the trial court.
On appeal, Nail Care contends that the trial court erred
in holding that the BZA had jurisdiction to render a decision
on the Association’s appeal because it was not made within 90
days of the filing of appeal.
Nail Care further argues that
zoning ordinance § 18-306(3) pertaining to continuances is in
conflict with Code § 15.2-2312 and that the delay in the BZA’s
decision denied it due process of law.
Code § 15.2-2312 (formerly Code § 15.1-496.2) 1 provides in
part that, “[t]he board shall fix a reasonable time for the
hearing of an application or appeal, give public notice
thereof as well as due notice to the parties in interest and
make its decision within ninety days of the filing of the
application or appeal.”
Nail Care argues that by use of the
word “shall” in the statute, the intent of the legislature was
that an appeal to the BZA must be concluded within 90 days.
We have long held that “[c]ourts, in endeavoring to
arrive at the meaning of language in a will, contract, or a
Code § 15.1-496.2 was repealed by Acts 1997 c.587,
effective December 1, 1997. The language of Code § 15.2-2312,
enacted in 1997, is identical to that of Code § 15.1-496.2.
The trial court referred to these sections interchangeably.
For purposes of this opinion we will refer to Code § 15.22312.
statute, often are compelled to construe ‘shall’ as permissive
in accordance with the subject matter and content.”
Custis, 236 Va. 69, 77, 372 S.E.2d 373, 377 (1988).
we have repeatedly stated that “the use of the word ‘shall’ in
a statute requiring action by a public official, is directory
and not mandatory unless the statute manifests a contrary
Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d
636, 638 (1994).
We applied this well-established principle
in Jamborsky, and held that a circuit court’s failure to
examine certain papers and enter an order either remanding a
case to the juvenile court or advising the Commonwealth’s
Attorney that he may seek an indictment under former Code
§ 16.1-269(E), which governed the transfer of a juvenile to
stand trial as an adult, was a procedural requirement rather
than a prerequisite to jurisdiction.
observed that the statute “contains no prohibitory or limiting
language that prevents the circuit court from entering its
order beyond the expiration of the 21-day period.” 247 Va. at
511, 442 S.E.2d at 638-39.
In Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17
(1991), we construed former Code § 18.2-268(Q), which provided
that an executed certificate of refusal to take a blood or
breath test “shall be attached to the warrant.”
“ ‘[a] statute directing the mode of proceeding by public
officers is to be deemed directory, and a precise compliance
is not to be deemed essential to the validity of the
proceedings, unless so declared by statute.’ ”
241 Va. at
324-25, 402 S.E.2d at 20 (quoting Nelms v. Vaughan, 84 Va.
696, 699, 5 S.E. 704, 706 (1888)).
Code § 15.2-2312 contains no “prohibitory or limiting
language” concerning action after the passage of 90 days.
Accordingly, we hold that the 90-day time period for appeals
in Code § 15.2-2312 is directory rather than mandatory and
that the BZA did not lose jurisdiction to render a decision on
appeal of the Zoning Administrator’s action after 90 days had
Although we have determined that the BZA is permitted to
render a decision on appeal more than 90 days after the filing
of the appeal, failure to adhere to statutory time
requirements may result in dismissal if due process concerns
are not met.
In Commonwealth v. Wilks, 260 Va. 194, 530
S.E.2d 665 (2000), we considered whether the requirement of
filing notices of seizure for forfeiture was procedural or
jurisdictional in nature.
Although we held that the notice
requirements were procedural, we noted that “our decision is
based on the uncontroverted fact that the putative owners did
not suffer any prejudice as a result of the delay in giving
Id. at 201, 530 S.E.2d at 668.
An assessment of
whether an individual has “suffered prejudice constituting a
denial of due process must be made on a case-by-case basis.”
Nail Care has presented no evidence supporting its claim
of prejudice or harm as a result of the 550 days that passed
before the BZA rendered a decision on the Association’s
Additionally, Nail Care failed to object to any of
the continuances which caused the lengthy delay.
we find no merit to the contention that Nail Care was deprived
of due process.
Nail Care also argues that the BZA’s grants of
continuances to the Association beyond 90 days, pursuant to
zoning ordinance § 18-306(3), conflict with Code § 15.2-2312.
Zoning ordinance § 18-306(3) states that, “[t]he BZA shall
render a decision on all applications for appeal within ninety
(90) days from the date of acceptance, unless an extended
period is mutually agreed to by the appellant and the BZA.”
Nail Care’s argument is premised entirely upon its contention
that the 90-day period for deciding an appeal set forth in
Code § 15.2-2312 is mandatory rather than directory in nature.
Having resolved that issue contrary to the premise, we
conclude that the zoning ordinance permitting continuances is
not in conflict with Code § 15.2-2312.
We hold that the time requirement in Code § 15.2-2312 is
directory and not mandatory, that zoning ordinance § 18-306(3)
does not conflict with Code § 15.2-2312, and that Nail Care
has shown no prejudice in support of its claim of denial of
Accordingly, we will affirm the judgment of the