DeCarlo v. Zoning Appeals Board

By Judge Alfred D. Swersky This matter is before the Court on Petitioners’ appeal of the denial of a Certificate of Occupancy by Respondents. For reasons that follow, the decision of the Board is reversed and Respondents are ordered to grant the Certificate of Occupancy. Petitioners are the record owners of the property in question which is zoned “CM: Limited Industrial.” Under § 18.118(C) of the Vienna Town Code, the use for which petitioners seek the occupancy permit, “petroleum, retail storage and distribution thereof’ is a permitted use. The only requirement in this code section is that this activity must be “contained within and screened from the outside on all sides by an ornamental masonry wall not less than six (6) feet in height.” There is no dispute that petitioners have complied with this requirement. The zoning administrator denied petitioners request based on his concerns of potential fire code violations, indicating he was waiting for “specific authorizations to do so by designated staff members of said Fire Prevention Division.” See Hembree letter of September 15, 2006. Since the use sought by petitioners is a permitted use and since petitioners have complied with the only statutory requirement, the building of the six foot masonry wall, the Certificate of Occupancy must be issued. [89] Nowhere in the Vienna Town Code is there a requirement that all other Codes (in this case fire and safety) be complied with prior to the issuance of the Certificate of Occupancy. While the safety concerns of the administrator and the Board are laudable, the denial of the certificate is premised on grounds not found in the statute. Hence, the denial of the Certificate is arbitrary and capricious. See Recycle America, L.C.C. v. Loudoun County, 59 Va. Cir. 504 (2001). The decision of the Board is reversed and the matter remanded to them to issue the Certificate of Occupancy.