PRESENT: All the Justices

THE LAMAR COMPANY, LLC
                                           OPINION BY
v.   Record No. 130801              JUSTICE DONALD W. LEMONS
                                         APRIL 17, 2014
CITY OF RICHMOND, ET AL.


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                  Melvin R. Hughes, Jr., Judge

     In this appeal, we consider whether the Circuit Court of

the City of Richmond ("circuit court") erred in its decision to

affirm the Board of Zoning Appeals’ denial of the Lamar

Company's request for a variance.

                      I. Facts and Proceedings

     The Lamar Company, LLC ("Lamar") leases property on Mayo

Island at 501 South 14th Street in the City of Richmond from

Alan T. Shaia and Wayne T. Shaia ("the Shaias") pursuant to a

lease agreement.   A billboard is located on this property that

is visible from Interstate 95.   The billboard has been declared

illegal in prior litigation because it exceeds the permitted

height limitation.   In June 2011, Lamar and the Shaias filed a

joint application for a variance with the Board of Zoning

Appeals of the City of Richmond ("BZA") to allow the billboard

to remain at its existing height.   There is no dispute that if

the billboard is lowered to the permitted height it will not be

visible from Interstate 95.
     The BZA held a hearing on August 3, 2011, to consider Lamar

and the Shaias' application for a variance.     At the conclusion

of the hearing, the BZA denied the requested variance.    Lamar

and the Shaias then filed appeals to the circuit court, which

consolidated their appeals.

     After conducting a hearing on the matter, the circuit court

issued a letter opinion on January 17, 2013, in which it upheld

the BZA's decision to deny the request for a variance.    The

circuit court issued a final order on February 19, 2013,

incorporating its January 17, 2013 letter opinion.

     Lamar appealed the circuit court's judgment to this Court,

and we awarded an appeal.   The Shaias chose not to pursue an

appeal in this Court, and the City of Richmond (the "City")

filed a motion to dismiss Lamar's appeal for lack of a necessary

party.

                      II.   Motion to Dismiss

     In its motion to dismiss, the City asserts that the Shaias

are necessary parties to this appeal because they are the

landowners.   The City relies on Code § 15.2-2314, which states

that "[t]he governing body, the landowner, and the applicant"

are necessary parties to appeals from the BZA to the circuit

court.   This statute does not apply, however, to appeals from

the circuit court to this Court.




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      We considered the necessary party doctrine in Siska v.

Milestone Development, LLC, 282 Va. 169, 715 S.E.2d 21 (2011),

and held that the necessary party doctrine does not implicate

subject matter jurisdiction.     We explained that a court might

choose not to exercise its subject matter jurisdiction if a

necessary party was missing from a case, and that a necessary

party is one whose presence is required for a court to render

complete relief in a case.     Id. at 177, 181, 715 S.E.2d at 25,

27.

      In this case, the Shaias were a party to the proceedings in

the BZA and the circuit court.    For unknown reasons, the Shaias

chose not to pursue an appeal in this Court, and Lamar did not

join them as parties in its case.      There is no statutory

requirement that the Shaias be made a party to this appeal, and

it is clear that Lamar can represent the Shaias' interests in

this appeal.   Code § 15.2-2310 permits tenants to apply for

variances, and a proper decree can be entered in this appeal

without the Shaias' presence.    The motion to dismiss will be

denied.

                          III.    Analysis

                       A. Standard of Review

      Whether the circuit court applied the proper standard of

review is a question of law.     We review pure questions of law de




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novo.    See PKO Ventures, LLC v. Norfolk Redev't & Hous. Auth.,

286 Va. 174, 182, 747 S.E.2d 826, 830 (2013).

               B. Standard of Review in the Trial Court

        In its third assignment of error, Lamar asserted that the

circuit court erred by applying the "fairly debatable" standard

of review.    In its letter opinion, incorporated into the final

order, the circuit court stated that

             [t]o approve a denial of variance on appeal,
             as here, the court need only find that the
             evidence presented to the Board was
             sufficient to make the question "fairly
             debatable." [Board of Supervisors] v.
             Southland Corp[.], 224 Va. 514, 522-23[, 297
             S.E.2d 718, 722] (1982). However, "[t]he
             court may not disturb the decision of a
             board of zoning appeals unless the board has
             applied erroneous principles of law or,
             where the board's discretion is involved,
             unless the evidence proves to the
             satisfaction of the court that the decision
             is plainly wrong and in violation of the
             purpose and intent of the zoning ordinance."
             Board of Zoning Appeals of Alexandria v.
             Fowler, 201 Va. 942, 948[, 114 S.E.2d 753,
             758] (1960). No such finding can be made
             under the circumstances here.

        The circuit court's letter opinion further stated that "the

BZA determination comes to the court presumed to be correct,

upon judicial review, Cherrystone Inlet v. BZA Northampton

County, 271 Va. 670, 628 S.E.2d 334 (2006), and for the

foregoing reasons, as the Board's decision can be said to be

'fairly debatable,' the outcome must be upheld."




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     In Lamar's first assignment of error, it contends that the

standard of review the circuit court should have applied is the

standard set out in section 17.24 of the Richmond City Charter.

Section 17.24 states that the circuit court may reverse or

modify a decision of the BZA if "the decision of the board is

contrary to law or that its decision is arbitrary and

constitutes an abuse of discretion."

     Code § 15.2-2314 also sets out the standard of review that

governs decisions by boards of zoning appeals.   Code § 15.2-2314

states, in relevant part, that:

          [T]he decision of the board of zoning
          appeals shall be presumed to be correct.
          The petitioner may rebut that presumption by
          showing to the satisfaction of the court
          that the board of zoning appeals applied
          erroneous principles of law, or where the
          discretion of the board of zoning appeals is
          involved, the decision of the board of
          zoning appeals was plainly wrong and in
          violation of the purpose and intent of the
          zoning ordinance.

     In Martin v City of Alexandria, 286 Va. 61, 69, 743 S.E.2d

139, 142 (2013), we applied the standard of review contained in

the Alexandria City Charter, and found that the standard of

review in the Alexandria City Charter was in effect the same

standard of review contained in Code § 15.2-2314.   The standard

of review in the Alexandria City Charter is identical to the

standard of review contained in section 17.24 of the Richmond

City Charter.   Accordingly, we find no significant difference


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between the standard of review contained in the Richmond City

Charter and that set forth in Code § 15.2-2314.

     Lamar is correct that the circuit court applied an

incorrect standard of review.    The "fairly debatable" standard

is the standard of review that a court applies when a governing

body acts in a legislative capacity, such as when it adopts a

zoning ordinance or grants a special use permit.     See Board of

Supervisors v. Southland Corp., 224 Va. 514, 522-23, 297 S.E.2d

718, 722 (1982).   It is not the proper standard of review to

apply when considering a board of zoning appeals' decision to

deny a request for a variance.    The proper standard of review to

apply is the standard articulated in Code § 15.2-2314 and

Richmond City Charter § 17.24.

                          IV.    Conclusion

     Accordingly, we hold that the circuit court erred by

applying an improper standard of review.      We remand the case to

the circuit court for further proceedings wherein the trial

court is directed to apply the standard of review as articulated

in Code § 15.2-2314 and Richmond City Charter § 17.24.      Based

upon our resolution of the third assignment of error, we need

not address the remaining assignments of error.

                                               Reversed and remanded.




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CHIEF JUSTICE KINSER, concurring.

        I fully agree with the analysis and conclusion of the

majority.    I write separately, however, to address the dissent's

belief that the circuit court's application of the wrong

standard of review was harmless error.

        According to the dissent, the circuit court's application

of the incorrect standard of review was harmless error because

in its letter opinion, the circuit court also cited the proper

standard of review contained in Code § 15.2-2314.     Therefore,

the dissent reasons, the circuit court's "additional application

of the incorrect 'fairly debatable' standard did not impact its

ultimate resolution of the case."

        When a jury is given a correct instruction and a

conflicting, incorrect instruction on the same point of law, we

have held that the verdict must be set aside "because it is

impossible to determine which instruction was the basis for the

jury's decision."    Riverside Hosp., Inc. v. Johnson, 272 Va.

518, 536, 636 S.E.2d 416, 426 (2006).     The same analysis applies

here.    Contrary to the dissent's conclusion, it is not possible

to determine which standard of review was the basis for the

circuit court's decision and what impact the "fairly debatable"

standard had on the court's analysis.     In the passage quoted by

both the majority and the dissent, the circuit court cited both

the fairly debatable standard and the correct standard under


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Code § 15.2-2314.   But as the majority notes, the circuit court

then concluded its analysis by stating that the decision of the

Board of Zoning Appeals "can be said to be 'fairly debatable.'"

     It is not at all clear, therefore, that the circuit court

reached its decision by applying the proper standard of review.

Stated differently, "it is impossible to determine which

[standard of review] was the basis for the [court's] decision,"

and it cannot be said that "it is clear that the [court] was not

misled" by its application of the wrong standard.   Riverside,

272 Va. at 536-37, 636 S.E.2d at 426.   Accordingly, the circuit

court's judgment must be reversed and this case remanded so the

court can apply the proper standard of review.

     For these reasons, I respectfully concur.



JUSTICE McCLANAHAN, with whom JUSTICE GOODWYN joins, dissenting.

     I dissent because I believe that the trial court’s

application of the “fairly debatable” standard of review was

harmless error.

     We have held that “‘[u]nder the doctrine of harmless error,

we will affirm the circuit court's judgment when we can conclude

that the error at issue could not have affected the court's

result.’” Northam v. Virginia State Bar, 285 Va. 429, 445, 737

S.E.2d 905, 913-14 (2013) (quoting Forbes v. Rapp, 269 Va. 374,

382, 611 S.E.2d 592, 597 (2005)).    Furthermore, “in order to


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constitute reversible error the ruling of the trial court must

be material and prejudicial to the interests of the party

complaining of it.”    Taylor v. Turner, 205 Va. 828, 831, 140

S.E.2d 641, 643 (1965).

     In the portion of its letter opinion expressly incorporated

into the final order of February 19, 2013, the circuit court

described the applicable standard of review as follows:

To approve a denial of variance on appeal, as here,
the court need only find that the evidence presented
to the Board was sufficient to make the question
“fairly debatable.”     Fairfax County v. Southland
Corporation, 224 Va. 514, 522-23 (1982). However,
“[t]he court may not disturb the decision of a board
of zoning appeals unless the board has applied
erroneous principles of law or, where the board’s
discretion is involved, unless the evidence proves to
the satisfaction of the court that the decision is
plainly wrong and in violation of the purpose and
intent of the zoning ordinance.”     Board of Zoning
Appeals of Alexandria v. Fowler, 201 Va. 942, 948
(1960). No such finding can be made under the
circumstances.

(emphasis added).

     The proper standard of review in this case is contained in

Code § 15.2-2314, which establishes that a petitioner may rebut

the presumption that a BZA decision is correct by showing that

“the board of zoning appeals applied erroneous principles of

law, or where the discretion of the board of zoning appeals is

involved, [that] the decision of the board of zoning appeals was

plainly wrong and in violation of the purpose and intent of the

zoning ordinance.”    Code § 15.2-2314.   This is the same standard


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of review applied by this Court in Fowler, which was cited by

the circuit court here.

     Although the circuit court erred by citing the incorrect

“fairly debatable” standard, it also stated that “no such

finding [could] be made” that the board committed an error of

law or that its decision was “plainly wrong and in violation of

the purpose and intent of the zoning ordinance.”   (Quoting

Fowler, 201 Va. at 948); Code § 15.2-2314. Because the circuit

court explicitly held that it could not reverse the BZA’s

decision under the correct standard of review, its additional

application of the incorrect “fairly debatable” standard did not

impact its ultimate resolution of the case. * Therefore, Lamar was

not prejudiced by the ruling below, and I would affirm the

circuit court’s decision.




*
  The issue presented by this case is not, as the concurrence
suggests, analogous to a situation where a jury is presented
with both a correct and an incorrect instruction on the same
point of law. In that situation it is “impossible to determine
which instruction was the basis for the jury’s decision,”
Riverside Hospital, Inc. v. Johnson, 272 Va. 518, 536, 636
S.E.2d 416, 426 (2006), because a jury does not explain its
reasoning and appellate courts have no access to jury
deliberations. In contrast, the circuit court here has
explained its reasoning in a written opinion, which plainly
stated that it could not reverse the BZA’s decision under either
the incorrect or the correct standard of review.

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