Present: Carrico, C.J., Compton, ∗ Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.


ALBERT J. LILLY, JR.,
ET AL.
                           OPINION BY JUSTICE A. CHRISTIAN COMPTON
v.   Record No. 990746                    March 3, 2000

CAROLINE COUNTY, ET AL.

             FROM THE CIRCUIT COURT OF CAROLINE COUNTY
               Richard J. Jamborsky, Judge Designate

      In this appeal in a land use controversy, the issue is

whether the trial court correctly ruled that landowners,

aggrieved by a zoning administrator's oral decision, failed to

exhaust administrative remedies by not filing a timely appeal to

the board of zoning appeals, as required by statute.

      The controversy involves the effort to construct a

broadcast studio and office building, a 500-foot tower, and

transmitting facilities for an FM radio station on a two-acre

parcel in rural Caroline County.   In April 1998, the County's

board of supervisors granted a special exception and a zoning

ordinance amendment at the request of those seeking to establish

the business.

      In June 1998, appellants Albert J. Lilly, Jr., and

Judith G. Lilly, owners of realty "in the vicinity" of the

subject property and opponents of the project, filed the present


∗
 Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
"Motion for Declaratory Judgment."   Appellees Caroline County;

Michael A. Finchum, as Director of Planning and Community

Development and as the County's Zoning Administrator; and others

(who have not appeared on appeal) were named defendants.

     According to the motion, it "contests . . . the 'decision'"

of the zoning administrator "in determining that the

construction of a radio tower was a use permitted by right" in

the County's zoning ordinances. The motion sought various

relief, including a ruling that the zoning administrator's

determination "is without basis in the zoning ordinance, is

contrary to the terms of the zoning ordinance and is null and

void."

     The County and Finchum (hereinafter, the defendants) filed

a special plea in bar seeking dismissal of the motion and

asserting that the plaintiffs' attempt to contest the decision

of the zoning administrator "is time barred."

     In an October 1998 bench trial, the court considered

various documents, including copies of minutes of planning

commission and board of supervisors meetings.   The only witness

testifying was Finchum, who was called by the defendants.

Following the trial, the court sustained the plea and dismissed

the action in a January 1999 final order, from which we awarded

the landowners this appeal.


February 2, 2000.

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     There are very few disputed facts.     When there is dispute,

however, we will apply settled principles of appellate review

and summarize the facts in the light most favorable to the

defendants, the prevailing parties below.

     In 1996, one Walter Abernathy came to Finchum's office

explaining that he "had been working on trying to get an

application and a permit for a radio station in Caroline County

for several years and inquired as to the permitting procedure

that would be necessary to get a facility at the location in

question."   Finchum told Abernathy that he "thought the tower

and the transmitting facilities were permitted by right under

the county's public utilities definition of the zoning

ordinance, however a broadcast studio and any other structures

would require a text amendment to the zoning ordinance."

     Subsequently, after site plans had been filed for the tower

and for the broadcast studio, Finchum prepared a text amendment

to the ordinance that would permit by special exception in a

rural preservation district the additional use of a radio/TV

studio and office.

     At a meeting held on December 17, 1997, the County's

planning commission held a public hearing on the proposed

amendment and on Abernathy's application for a special exception

permit that would allow creation of the radio station, office,

and broadcasting studio.   During the public hearing, the


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question whether construction of the radio tower was a "by-

right" use, permitted under the zoning ordinance without any

special exception permit, was posed by a commission member to

Finchum.   He responded "that it is conceivable that the tower

can be placed anywhere without a special exception permit.    He

stated that he would research that prior to the next Planning

Commission meeting," according to the minutes of the meeting.

     Both plaintiffs were present at the December meeting, and

Mr. Lilly, an attorney at law, spoke against construction of the

tower.   The commission voted to defer action on the two items

until its January 1998 meeting.

     During the commission meeting held January 28, 1998, the

issue about the radio tower again arose in the context of the

proposed ordinance amendment and application for a special

exception permit.   In response to a question from the chairman,

Finchum stated that the tower "is a permitted use by right

within the RP District," according to the minutes of the

meeting.

     Both plaintiffs were present at the January meeting.     The

commission then voted to forward both items to the County's

board of supervisors.

     During its meeting on February 24, 1998, the board of

supervisors held a public hearing on the two items related to

the proposed radio station.   The question whether construction


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of the radio tower was permitted under the zoning ordinance

arose again.   Responding to a supervisor's question, Finchum

"stated that he would investigate whether or not the tower and

transmitting facility falls under the ordinance."   The County

Attorney then said that such a determination would be made by

the zoning administrator, whose interpretation could be appealed

to the County's board of zoning appeals.

     Both plaintiffs were present at the February meeting and

both spoke against the proposed radio station and tower.    The

board deferred action on the proposed zoning ordinance amendment

and special exception application until its next meeting in

March.

     At the board meeting on March 10, 1998, action on the

subject items was deferred to allow an absent supervisor to be

present and to vote on the matters.

     The board's next meeting was held on April 14, 1998.

During the meeting, Finchum reminded the board that, during its

February public hearing, it had "expressed concerns" about the

"by-right use" issue.

     According to the minutes of the meeting, the zoning

administrator stated "that he had determined that the radio

tower was a by-right use in the Rural Preservation zoning

district."   The minutes further reflect that Finchum "explained

that the radio tower, but not the office and broadcasting


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facilities, could be built on the present site with or without

approval of the special exception request.     He added that his

ruling could be appealed to the Board of Zoning Appeals."

        Both plaintiffs were present at the April meeting.   As we

previously have noted, the board approved the zoning ordinance

amendment and application for the special exception permit at

that meeting.    No one, including the plaintiffs, appealed the

zoning administrator's April determination with respect to the

radio tower being a "by-right" use.

        The applicable law is clear.   "In the land use context, a

landowner may be precluded from making a direct judicial attack

on a zoning decision if the landowner has failed to exhaust

'adequate and available administrative remedies' before

proceeding with a court challenge."      Vulcan Materials Co. v.

Board of Supervisors, 248 Va. 18, 23, 445 S.E.2d 97, 100 (1994)

(quoting Rinker v. City of Fairfax, 238 Va. 24, 29, 381 S.E.2d

215, 217 (1989)).    A zoning administrator has "all necessary

authority on behalf of the governing body to administer . . .

the zoning ordinance."    Code § 15.2-2286(A)(4).   And, a person

aggrieved by any decision of the zoning administrator has the

right to appeal to the board of zoning appeals.     Code § 15.2-

2311.    If this mandatory appeal is not timely filed, the

administrative remedy has not been exhausted and the zoning

administrator's decision becomes a "thing decided" not subject


                                   6
to court challenge.   Dick Kelly Enter. v. City of Norfolk, 243

Va. 373, 378, 416 S.E.2d 680, 683 (1992).

     The focus of this dispute is upon Code § 15.2-2311(A).     As

pertinent, that statute provides that an appeal to the board of

zoning appeals "may be taken by any person aggrieved . . . by

any decision of the zoning administrator."   There is no

requirement in the statute that the administrator's decision be

in writing.   The statute further provides that "[t]he appeal

shall be taken within thirty days after the decision appealed

from by filing with the zoning administrator, and with the

board, a notice of appeal specifying the grounds thereof."

     The landowners contend the trial court erred in sustaining

the special plea and in dismissing the motion for declaratory

judgment.   They argue:   That "Finchum's decision was made prior

to the commencement of the first public hearing of December

1997"; that the "comments made by Finchum at public meetings did

not constitute notice of the decision"; that they were "not

required to appeal a decision to the board of zoning appeals

when such decision was made without their knowledge and without

notice to them"; and that they were "not required to appeal a

'decision' to the board of zoning appeals which was voiced as to

a matter not then pending before Finchum or [the] County."




                                  7
     We do not agree with any of these contentions. They are

contrary to the evidence in the record and the trial court's

findings of fact.

     The trial court, in sustaining the special plea, found that

a decision was made on April 14, 1998; that the decision "was

communicated to" the landowners, who "had actual notice of that

decision"; and that the landowners "did not comply with the

code."   These findings are based upon credible evidence.

     The landowners' assertion that Finchum's decision was made

prior to the December meeting has no support in the record.

They argue that Finchum's testimony shows that "his decision

that the tower was a use permitted by right was possibly made

prior to November 1997, he had so stated to Abernathy in 1996;

the tower site plan was approved November 10, 1997; and the

building and zoning permits for the tower, issued by him or

someone at his direction, could have been filed before December

1997."

     However, the evidence is clear that the "decision" was made

at the April meeting, when Finchum stated "that the radio tower

was a by-right use in the Rural Preservation zoning district."

A zoning administrator must make clear the basis of the

decision, see Gwinn v. Alward, 235 Va. 616, 622, 369 S.E.2d 410,

413 (1988), and the foregoing statement complies with that

requirement.   The intended finality of that opinion was


                                 8
buttressed by Finchum's April statement that his ruling could be

appealed to the board of zoning appeals.

     The landowners' assertion that the decision was made

without their knowledge and without notice to them completely

disregards the fact that they were present at the April board

meeting when Finchum announced his decision.    Indeed, they were

present and participated in the December, January, and February

meetings when the radio tower issue was discussed. See Code

§ 15.2-2204(B) (party's active participation in proceeding

waives right of party to challenge validity of proceeding due to

failure to receive written notice required by statute).    At

those meetings, arguably there was no finality to Finchum's

opinion because, unlike the April meeting, decision on the issue

was deferred until each succeeding meeting.

     The landowners' final assertion that the decision was

rendered in "a matter not then pending before" the zoning

administrator or the County is also unsupported by the record.

At each meeting, the radio-tower issue arose within the

framework and within the context of the proposed zoning

amendment and application for the special exemption.

     This fact distinguishes the present case from Vulcan

Materials, upon which the landowners rely.     There, we held that

because no application was pending before any county

administrative department for specific relief, the person was


                                9
not "aggrieved" within the meaning of the statute.   Thus, we

said, any oral comments by county officials merely were advisory

and no appeal to the board of zoning appeals was required.    248

Va. at 24, 445 S.E.2d at 100.   Here, there were applications for

specific relief pending at the time Finchum announced his

decision.

     Consequently, we hold that the trial court did not err in

sustaining defendants' special plea, and the judgment below

dismissing the declaratory judgment motion will be

                                                         Affirmed.




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