Present:   All the Justices

BOARD OF ZONING APPEALS OF
THE CITY OF NORFOLK

v.   Record No. 971655      OPINION BY JUSTICE ELIZABETH B. LACY
                                        April 17, 1998
MEHRI KAHHAL, ET AL.

           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                    John C. Morrison, Jr., Judge

      In this appeal, we consider whether the circuit court

erred in reversing the decision of a board of zoning appeals

because the board applied erroneous principles of law.

      Mehri Kahhal and Mahmoudi Zarandi (collectively, the

owners) purchased property located at 4000 Parker Avenue in

the City of Norfolk, in 1990.    The property was zoned for

commercial use.    The owners leased the property to Frederick

Holloway, who held a business license from the City to operate

"D&H Grocery."     In 1992, the City rezoned the property for

residential use.    However, the zoning ordinance allowed

nonconforming uses to continue subject to § 12–9 of the

ordinance.   That section provides:

           If a nonconforming use is discontinued for a
      period of two years, then that use shall not be
      renewed or reestablished and any subsequent use of
      the lot or structure shall conform to the use
      regulations of the Zoning District in which it is
      located.

      In 1994, following a fire in the store, Holloway

abandoned his lease.     He surrendered his business license on
June 16, 1994.    The owners decided to operate the grocery

store themselves and secured a loan to finance the necessary

repairs to the property.    On October 9, 1995, the City issued

the owners a business license to operate a grocery store on

the property.    That same day, the owners also paid a meal tax

cash bond to the City in the amount of $300.   A second

business license was later issued with an expiration date of

December 31, 1996.

     On February 9, 1996, the owners obtained a building

permit from the City to repair the property, and the City

subsequently issued permits for electrical and plumbing work.

City inspectors approved the repair work on a number of

occasions from June through August of 1996.    On August 21,

1996, the owners received a Notice of Zoning Violation from

the zoning inspector informing them that the property could

not be used as a grocery store because it had lost its

nonconforming use status.

     The owners appealed to the Board of Zoning Appeals (the

Board).   At the public hearing, the zoning administrator

testified that the property had lost its nonconforming use

status on June 16, 1996, pursuant to § 12-9 of the zoning

ordinance, because it had not been operated as a grocery store

for a period of two years.   The administrator measured the

two-year period from the date the owners' lessee had


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surrendered his business license.   The administrator also

testified that, at the time the building permit was issued,

the owners were told that the business had to be in operation

by June 16, 1996.

     The owners presented evidence of the repair and

renovation work they had done on the property, as well as the

business licenses, building permits, and inspection approvals

they had received from the City.    They denied they were told

that they had to be operating the business by June 16.   A

number of neighborhood representatives testified both for and

against the owners.   One resident of the neighborhood, Mr.

Isaiah Rogers, testified that the property had not been used

as a grocery store since "about '88, something like that."

     The Board upheld the zoning administrator's decision.

The owners filed a petition for a writ of certiorari with the

circuit court arguing that the Board applied erroneous

principles of law in making its decision.   The circuit court

did not take additional evidence, but relied on the record of

the hearing before the Board and argument of counsel.

     The owners argued, as they had before the Board, that

continuation of the nonconforming use under § 12-9 is not

limited to the actual operation of the "use," but includes

preparatory actions such as securing financing to repair the

property, paying the meal tax bond, and getting business


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licenses as well as building permits.   They asserted that,

even though § 12-9 is silent as to its scope, other sections

of the zoning ordinance support their interpretation of § 12-

9.

     The owners pointed to § 12-8 of the ordinance, which

allows restoration or reconstruction of a nonconforming use in

the event of a fire as long as the owners diligently prosecute

the repairs to completion.   This provision, they argued, not

only is applicable to their specific situation because of the

1994 fire, but it also shows that actual operation is not a

prerequisite for avoiding a determination that a nonconforming

use has been discontinued.   Similarly, the owners suggested

that the definition of "used or occupied" as "intended,

designed or arranged to be used or occupied" in § 1-4.8 of the

ordinance is consistent with their interpretation of § 12-9.

This definition is relevant, the owners argued, because § 1-4

of the zoning ordinance, which includes § 1-4.8, states that

"[t]he regulations contained in this ordinance shall be

interpreted and applied in accordance with the general rules

set out in this section."    Finally, the owners claimed that

the Black's Law Dictionary definition of "discontinuance" — an

ending, causing to cease, ceasing to use, giving up --

supports their position that a nonconforming use is not

abandoned or discontinued as long as affirmative actions are


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ongoing to recommence the operation.   Black's Law Dictionary

464 (6th ed. 1990).

       The circuit court agreed with the owners and concluded

that, under § 12-9, neither continuation nor abandonment of a

nonconforming use is contingent upon actual operation of the

use.   Because the Board's decision was premised on the

principle that a nonconforming use is "discontinued" on the

date the use ceases to be in actual operation, the circuit

court concluded that the Board applied an erroneous legal

principle.   Applying what it considered the correct principle,

the circuit court held that the activities of the owners at

the time the City issued the building permit did not

constitute "discontinuation" of the nonconforming use.

Therefore, the circuit court concluded that the property

retained its nonconforming use status because the use had not

been discontinued for a period of two years, and entered an

order reversing the decision of the Board.

       In this appeal, the Board seeks reversal of the circuit

court's judgment and reinstatement of its decision, asserting

that the circuit court erred in ignoring the testimony of the

neighborhood resident who said there was no grocery store in

operation since "about '88;" in improperly relying on the

issuance of the building permit because the permit was

improvidently or erroneously granted; and by relying on § 1-


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4.8 of the zoning ordinance because that section was not

"argued before the Board" and is "irrelevant to the issues in

this case."    Finally, the Board asserts that its decision

should be reinstated because the circuit court erred in

failing to accord the decision of the Board a presumption of

correctness.   None of these challenges is well taken.

     First, the Board's decision was based on the initial

presumption that the nonconforming use was operational until

just prior to June 16, 1994, the date the owners' lessee

surrendered his business license.    By adopting this position,

the Board implicitly rejected the testimony that the grocery

store was not operational since sometime around 1988.    The

circuit court was not required to afford such testimony more

weight than that given it by the Board.

     Next, whether the building permit was improvidently or

illegally granted in February 1996 because the use was

discontinued at an earlier date, as now asserted by the Board,

is not determinative.   The issue before the Board and the

circuit court was whether the owners' actions constituted

discontinuation of the nonconforming use under § 12-9 of the

zoning ordinance.   That same issue would have arisen if the

City had denied the building permit on the basis that the

nonconforming use had been discontinued.   The owners were

already engaged in activities directed to reopening the


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grocery store, such as obtaining financing, securing business

licenses, and paying the meal tax bond.      Thus, had the

building permit been denied, the same legal question could

have been raised.

     We also reject the Board's contention that the circuit

court erred in considering other sections of the zoning

ordinance, specifically the definition of "used or occupied"

in § 1-4.8.   The circuit court did not apply this definition

to § 12-9.    Rather it looked to this section and others in the

ordinance to determine the purpose and intent of the zoning

ordinance, specifically § 12-9.       This reference to other

provisions in pari materia with the section at issue is an

accepted method of statutory construction and did not

constitute error by the circuit court.       See Prillaman v.

Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957).

     Finally, we reject the Board's assertion that the circuit

court erred by failing to extend the presumption of

correctness to the Board's decision.       It is well established

that the decision of a board of zoning appeals is presumed to

be correct and will be reversed or modified only if the board

applied erroneous principles of law or was plainly wrong and

in violation of the purpose and intent of the zoning

ordinance.    Foster v. Geller, 248 Va. 563, 566, 449 S.E.2d

802, 804-05 (1994).    Furthermore, great weight must be given


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to the consistent construction of an ordinance by the official

charged with enforcing the ordinance.    Cook v. Board of Zoning

Appeals of the City of Falls Church, 244 Va. 107, 111, 418

S.E.2d 879, 881 (1992).

     In support of its position, the Board only points again

to those actions of the circuit court to which it assigned

error:    ignoring the testimony of the neighborhood resident,

relying on the issuance of the building permit, and referring

to other sections of the zoning ordinance in interpreting

§ 12-9.   We have already held that the circuit court did not

err in any of these particulars and we find nothing else in

the record to suggest that, in reaching its decision, the

circuit court ignored any of the principles which govern its

review of the Board's decision in this case. *

     Accordingly, for the reasons stated, we will affirm the

decision of the circuit court.

                                                       Affirmed.




     *
       We are not called upon to consider whether the circuit
court's interpretation of § 12-9 is correct because the
validity of that interpretation was not the subject of an
assignment of error.

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