Norfolk 102, LLC v. City of Norfolk ( 2013 )

PRESENT: All the Justices
NORFOLK 102, LLC,
T/A BAR NORFOLK, ET AL.
OPINION BY
v. Record No. 120634 CHIEF JUSTICE CYNTHIA D. KINSER
February 28, 2013
CITY OF NORFOLK, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Norman A. Thomas, Judge
Norfolk 102, LLC, and Norfolk 302, LLC, are business
establishments operating in the City of Norfolk (the City) and
trading as Bar Norfolk and Have a Nice Day Café (the Café),
respectively. In 2009, the City of Norfolk Council (the City
Council) revoked a blanket special exception permitting Bar
Norfolk and the Café to operate as "Entertainment
Establishments" serving alcoholic beverages for on-site
consumption and denied their individual applications for special
exceptions to continue such operations. Both establishments now
assert that the City Council's actions impaired their vested
rights and that the manner in which the City Council executed
these actions violated their statutory notice and constitutional
due process rights.
Bar Norfolk and the Café, however, cannot claim vested
rights under Code § 15.2-2307 to a land use that was
impermissible under the applicable zoning ordinance when they
opened for business, and no City official issued a determination
under Code § 15.2-2311(C) authorizing the use of their premises
in a manner not otherwise permitted under the existing zoning
ordinances. Furthermore, Bar Norfolk and the Café had notice of
and an opportunity to be heard at the City Council meeting when
these matters were considered. Therefore, we will affirm the
circuit court's judgments.
I. RELEVANT FACTS AND PROCEEDINGS
Bar Norfolk and the Café are located in the City along the
Elizabeth River in a business park known as the Waterside
Festival Marketplace (Waterside). Waterside originally opened
in 1983, at which time it was in the zoning district SPI-1:
Downtown Waterfront Special Public Interest District. Permitted
uses in that district included "[e]ating and drinking
establishments" with the sale of alcoholic beverages for on-
premises consumption provided an establishment obtained a "use
permit." Prior to Waterside's opening, the City Council granted
Waterside's developer such a use permit by enacting Ordinance
32,160 (1983 Ordinance).
That ordinance stated:
[A] Use Permit is hereby granted to
Waterside Associates authorizing the use of
property as an urban marketplace type
shopping center having uses such as . . .
restaurants, including the sale of beer,
wine and mixed beverages for on-premises
consumption within such specific premises as
may be licensed by the Virginia Alcoholic
Beverage Control [ABC] Commission on the
herein described property:
2
All that certain lot, piece or parcel of
land known and designated as Parcel R-1 on
that certain plat entitled "Plat of Property
– Parcel R-1" attached . . . to the Deed of
Lease dated November 25, 1981, between
Waterside Associates and the Norfolk
Redevelopment and Housing Authority . . . .
As originally constructed, Waterside was situated entirely
within Parcel R-1 encompassed by the 1983 Ordinance.
In addition to granting the blanket use permit to
Waterside, the 1983 Ordinance authorized the issuance of "Sub-
Use Permits," which were "to distinguish for enforcement
convenience a permit issued for specific ABC licensed premises
as the result of and deriving from the existence of the general
use permit for the entire Waterside premises." An entity
leasing space in Waterside and licensed by the ABC Commission
was required to apply to the City's zoning administrator for a
Sub-Use Permit to operate its proposed business.
Following enactment of the 1983 Ordinance, the City Council
took several actions with respect to Waterside and its zoning.
First, it re-subdivided several adjoining parcels of real estate
and combined them with the original Parcel R-1, thereby vacating
all the existing property lines and expanding the size of the
original parcel upon which Waterside was located. Waterside was
3
then situated on property designated Parcel R-1-A. 1 In 1992, the
City Council enacted a new comprehensive zoning ordinance,
placing the entire Waterside parcel in a new D-1 Downtown
Waterfront District. 2 Uses in that district requiring the City
Council's approval as a special exception included "Eating and
Drinking Establishments" and "Entertainment Establishments." An
ordinance enacted in 1997 (1997 Ordinance), in turn, defined the
terms "Eating and Drinking Establishment" and "Entertainment
Establishment." The 1997 Ordinance also created the permitted
use, not requiring a special exception, of an "Eating
Establishment" and defined that term as well. 3
1
Sometime after the re-subdivision, the Waterside structure
itself was expanded.
2
Although the 1992 zoning ordinance repealed the City's
previous comprehensive zoning ordinance dating from 1968, it
nevertheless provided that "all zoning clearances, permits, site
plan approvals and other such regulatory authorizations as have
been granted or duly applied for . . . shall, at option of the
grantor or applicant, be governed by the substantive provisions"
of the 1968 zoning ordinance.
3
The term "Eating Establishment" was defined as a "business
establishment whose function is the preparation and selling of
unpackaged food to the customer in a ready to consume state, and
where the customer consumes these foods while seated at tables
or counters primarily located within a building. There shall be
no sale of alcoholic beverages." The term "Eating and Drinking
Establishment" was defined as an "eating establishment also
having as a function the sale of beer, wine and/or mixed
beverages for consumption on the premises and requiring a retail
on-premises license from" the ABC Commission. "Such
establishment shall not provide entertainment, but may have as
an accessory function live performances with only one
nonelectronic musical instrument and/or recorded background
music and a dance floor not to exceed 10% of the seating area of
4
In June 1998, the Café entered into an agreement to lease
space in the expanded Waterside structure; in January 1999, Bar
Norfolk did the same. And in June 1998 and March 1999,
respectively, the Café and Bar Norfolk received a document
signed by the City's zoning administrator and titled "Cash
Receipt." On the top, right-hand side, each document bore the
inscription "Zoning Clearance Certificate," and in a box titled
"Description," the words "Zoning Clearance for Business License"
were typed. On a line next to the heading "License Category"
someone had written the words "Eating Place," a land use that
did not exist under the terms of the 1992 comprehensive zoning
ordinance or the definitions enacted in the 1997 Ordinance.
Both businesses opened in March 1999 as "Entertainment
Establishments" and, having obtained ABC licenses, both sold
alcoholic beverages for on-premises consumption.
In May 1999, the City Council enacted Ordinance 39,579
(1999 Ordinance), titled "An Ordinance Authorizing Operation of
the Waterside Festival Marketplace as an Entertainment
Establishment." The 1999 Ordinance granted an "Adult Use
Special Exception . . . authorizing the operation of an
the establishment." Finally, the term "Entertainment
Establishment" was defined as an "establishment where
entertainment is provided, or having a dance floor which
occupies more than 10% of the seating area of the establishment.
This shall not include commercial [recreation] restaurants or
commercial indoor recreation centers."
5
Entertainment Establishment" on the entire expanded Waterside
parcel. The special exception was subject to several
conditions, including that "[a]ny requirements, limitations, or
restrictions imposed by the Virginia ABC Commission" were
"effective and binding." In addition, any violation of the
terms of an ABC license also constituted a violation of the
special exception and permitted the City Council to bring
proceedings to revoke the special exception as to the offending
business establishment.
After the enactment of the 1999 Ordinance and prior to the
commencement of the litigation at issue in this appeal, Bar
Norfolk was cited three times for violating its ABC license and
the Café was cited once. In addition, a "Bar Task Force"
created by the City Council monitored both establishments and
documented numerous violations of local and state requirements.
Due to these and other concerns, the City decided in 2009 to
seek repeal of the blanket special exception granted in the 1999
Ordinance and instead require each ABC-licensed business located
in Waterside to obtain an individual special exception to
operate as an "Entertainment Establishment" or an "Eating and
Drinking Establishment."
In an April 2009 letter, the City notified the managers of
both Bar Norfolk and the Café of its intent. Bar Norfolk and
the Café then each submitted an application for an "Adult Use
6
Special Exception" to operate an "Entertainment Establishment
with alcoholic beverages." After initial review, the City's
planning commission voted at a public hearing to recommend
approval of both applications. The City manager, however,
subsequently learned additional information about each
establishment's violations and recommended that the City Council
deny both applications.
Based on the planning commission's recommendations, Bar
Norfolk and the Café believed that their special exception
applications would be approved by the City Council. However,
they learned of opposition to the applications the day before
the City Council was scheduled to consider them. Because their
attorney was unavailable, Bar Norfolk and the Café hired new
counsel that same day. At its meeting the following day,
August 18, 2009, the City Council considered the individual
special exception applications of all the establishments located
in Waterside, including Bar Norfolk and the Café, as well as
item R-19A, an ordinance to revoke the blanket special exception
granted in the 1999 Ordinance. While consideration of the
special exception applications was on the City Council's pre-
published agenda, item R-19A was not.
At the August 18, 2009 meeting, counsel for Bar Norfolk and
the Café requested "as a matter of fairness" that the City
Council delay consideration of the special exception
7
applications and the proposed ordinance revoking the blanket
special exception granted in the 1999 Ordinance. According to
their counsel, neither Bar Norfolk nor the Café were prepared to
address the recent opposition to their special exception
applications, in part because their regular attorney was
unavailable. In addition, counsel argued that consideration of
item R-19A was illegal because it was not originally on the
Council's meeting agenda. In addition to counsel for Bar
Norfolk and the Café, approximately 30 employees of the
establishments attended the meeting and representatives from
both addressed the City Council. Nevertheless, the City Council
enacted Ordinance 43,555 (2009 Ordinance), which specifically
revoked "a special exception previously granted . . . by [the
1999 Ordinance], authorizing the operation of an entertainment
establishment" on the Waterside property. In addition, the City
Council denied the applications of both Bar Norfolk and the Café
for a special exception to operate an "Entertainment
Establishment" in Waterside.
Bar Norfolk and the Café, however, opened for business the
following day. As a result, the City filed a complaint in the
Circuit Court of the City of Norfolk requesting that Bar Norfolk
and the Café be "permanently enjoined from selling or serving
alcohol or providing entertainment" in their businesses located
in Waterside. Bar Norfolk and the Café responded by filing an
8
answer, a counterclaim, and a separate complaint and petition
for appeal against the City Council pursuant to Code § 15.2-
2285(F). As relevant here, they asserted that the City Council
violated their due process rights by failing to give proper
notice prior to revoking the blanket special exception granted
in the 1999 Ordinance; that the City Council's revocation of the
1999 Ordinance and denial of their special exception
applications were arbitrary and capricious, contrary to law and
fact, and invalid; and that, because they opened their
establishments before the enactment of the 1999 Ordinance, they
had vested rights under Code § 15.2-2307 that were unaffected by
the City Council's revocation of the special exception contained
in the 1999 Ordinance. Bar Norfolk and the Café requested,
inter alia, that the City be enjoined from interfering with the
lawful operation of their respective business establishments and
that an order be entered declaring that the City Council's
actions were unlawful and void or, if valid, that the City
nevertheless could not impair their vested rights.
During the pendency of those actions, the City's zoning
administrator issued Bar Norfolk and the Café an unsolicited
determination that neither had "any vested right to operate as a
lawful nonconforming use in the spaces each rented within
Waterside." The zoning administrator explained that the special
exception created by the 1983 Ordinance did not apply to either
9
business establishment because each premise was located in the
expanded Waterside structure and thus did not lie within Parcel
R-1 encompassed by the 1983 Ordinance. Consequently, according
to the zoning administrator, neither Bar Norfolk nor the Café
was lawfully operating in accordance with applicable zoning
regulations prior to the enactment of the 1999 Ordinance, at
which time "both businesses became lawful, conforming
Entertainment Establishments and remained conforming uses until"
the City Council revoked the blanket special exception created
by the 1999 Ordinance.
Bar Norfolk and the Café appealed the zoning
administrator's determination to the City's board of zoning
appeals (BZA), which affirmed the decision. Bar Norfolk and the
Café then each filed a petition for a writ of certiorari in the
Circuit Court of the City of Norfolk pursuant to Code § 15.2-
2314, seeking reversal of the BZA decision. The circuit court
consolidated the four pending actions for decision.
Upon considering the evidence, the record developed by the
parties, and their arguments, the circuit court denied the
relief requested by Bar Norfolk and the Café. Among several
issues addressed by the circuit court in its letter opinion, two
are relevant to this appeal: (1) whether Bar Norfolk and the
Café were entitled to declaratory relief holding that the City
Council acted unlawfully when it enacted the 2009 Ordinance
10
revoking the blanket special exception created by the 1999
Ordinance; and (2) whether the BZA correctly determined that
neither Bar Norfolk nor the Café possessed any vested rights to
"operate as Entertainment Establishments and serve on-premises
alcoholic beverages at Waterside."
With respect to their claims that the City Council violated
the mandatory notice provisions of Code § 15.2-2204 prior to
revoking the 1999 Ordinance, the circuit court ruled that Bar
Norfolk and the Café received actual notice as contemplated by
Code § 15.2-2204(B). The circuit court also concluded that the
City Council did not violate their constitutional due process
rights because they received actual notice and a reasonable
opportunity to be heard by actively participating in the City
Council meeting.
Regarding Bar Norfolk's and the Café's claims to vested
rights, the circuit court made several findings. First, the
circuit court held that none of Bar Norfolk's premises was
located within the original Parcel R-1 encompassed by the 1983
Ordinance and that only a small portion of the Café's floor
space fell within Parcel R-1. Consequently, as to the entirety
of Bar Norfolk's premises and the remaining portions of the Café
that were built after 1983 in the expanded portion of Waterside,
the circuit court found that the "general use permit of the 1983
Ordinance ha[d] no applicability." Additionally, the circuit
11
court found that, upon passage of the 1997 Ordinance, the
operation of an "Entertainment Establishment" in the D-1
District required a special exception. Citing the principle
that Code § 15.2-2307 only vests rights in a permissible land
use, see Goyonaga v. Board of Zoning Appeals, 275 Va. 232, 243-
44, 657 S.E.2d 153, 159-160 (2008), the circuit court held that
neither Bar Norfolk nor the Café had a special exception to
operate as an "Entertainment Establishment" or to sell alcoholic
beverages for on-premises consumption when they opened for
business. The only special exception that ever applied to
either establishment, the court held, was that contained in the
1999 Ordinance, which was legally revoked by the City Council in
2009.
As to Bar Norfolk's and the Café's alternative argument
that they had vested rights under Code § 15.2-2311(C), the court
found that neither the zoning administrator nor any other City
official had made a "specific pronouncement" regarding these
businesses' land use that would create "an entitlement" to
operate as an "Entertainment Establishment" and sell alcoholic
beverages for on-premises consumption. The court explained that
although various City officials acquiesced in Bar Norfolk's and
the Café's operating as "Entertainment Establishments" and
providing alcoholic beverages for on-premises consumption prior
to the enactment of the 1999 Ordinance, such acquiescence in a
12
land use did not satisfy the requirements of Code § 15.2-
2311(C). 4
In sum, the circuit court concluded that Bar Norfolk and
the Café
[were] not entitled . . . to declaratory
relief holding that [the City] Council acted
unlawfully . . . when it revoked the blanket
special exception respecting the operation
of Entertainment Establishments at Waterside
and denied the applications of [Bar Norfolk]
and [the Café] for individual special
exceptions to conduct such business
operations at Waterside.
Additionally, the court concluded that
[t]he [BZA] correctly ruled that [Bar
Norfolk] and [the Café] possess no vested
rights to operate as Entertainment
Establishments at Waterside, that [Bar
Norfolk] possessed no vested right to serve
on-premises alcoholic beverages at
Waterside, and that [the Café] possessed no
vested right to serve on-premises alcoholic
beverages at Waterside, except, however, as
to the small area of [the Café's] floor
space still subject to the general use
permit of the 1983 Ordinance.
The circuit court, therefore, granted the City's request for
injunctive relief prohibiting Bar Norfolk and the Café from
operating as "Entertainment Establishments" and selling
alcoholic beverages for on-premises consumption, and rejected
Bar Norfolk's and the Café's requests for injunctive relief.
4
The circuit court also held that Bar Norfolk and the Café
failed to establish the existence of a "significant affirmative
governmental act" as required by Code § 15.2-2307.
13
Bar Norfolk and the Café appeal from the circuit court's
judgments.
II. ANALYSIS
Bar Norfolk and the Café first challenge the circuit
court's judgments holding that they possessed no vested rights
to operate as "Entertainment Establishments" and to sell
alcoholic beverages for on-premises consumption. That issue was
before the circuit court in both Bar Norfolk's and the Café's
petitions for a writ of certiorari seeking reversal of the BZA
decision and in their complaints for declaratory relief.
Regardless of the different proceedings in the circuit court,
the issue presented on appeal is a question of law that we
review de novo. See Shilling v. Baker, 279 Va. 720, 724, 691
S.E.2d 806, 808 (2010); Code § 15.2-2314.
Bar Norfolk and the Café also assign error to the circuit
court's judgment holding that the City Council acted lawfully
and did not violate their due process rights when it enacted the
2009 Ordinance revoking the 1999 Ordinance and the blanket
special exception for Waterside. This issue is likewise a
question of law reviewed de novo on appeal. See L.F. v. Breit,
285 Va. 163, 176, 736 S.E.2d 711, 718 (2013). We will address
the issues seriatim.
14
A. Vested Rights
Bar Norfolk and the Café assert that, when they opened for
business in 1999, the City allowed them to provide entertainment
and serve alcoholic beverages for on-premises consumption under
the auspices of the 1983 Ordinance. They also contend that the
City's issuance of the "Zoning Clearance for Business License"
to each of them, with full knowledge of the nature of their
businesses, was a significant affirmative governmental act that
created vested rights. Thus, Bar Norfolk and the Café contend
that, whether analyzed under Code § 15.2-2307 or Code § 15.2-
2311(C), both establishments have vested rights to continue such
business operations that the City cannot now impair. 5
"[I]n limited circumstances, private landowners may acquire
a vested right in planned uses of their land that may not be
prohibited or reduced by subsequent zoning legislation." Board
of Zoning Appeals v. CaseLin Sys., Inc., 256 Va. 206, 210, 501
S.E.2d 397, 400 (1998). Pursuant to Code § 15.2-2307,
5
Each of the relevant statutes has been amended multiple
times in the past three decades. However, the parties make no
claim that the prior wording of the governing statutes, or the
case law that preceded or construed the prior statutes, makes
applicable any standard different than that set forth in the
current statutory language. See, e.g., Board of Zoning Appeals
v. CaseLin Sys., Inc., 256 Va. 206, 210-11, 501 S.E.2d 397, 400
(1998); Town of Rocky Mount v. Southside Investors, Inc., 254
Va. 130, 132, 487 S.E.2d 855, 856 (1997); Snow v. Amherst Cnty.
Bd. of Zoning Appeals, 248 Va. 404, 407-08, 448 S.E.2d 606, 608-
09 (1994); Holland v. Board of Supervisors, 247 Va. 286, 290-91,
441 S.E.2d 20, 22-23 (1994). Therefore, we employ the current
wording of the applicable provisions in this opinion.
15
a landowner's rights shall be deemed vested
in a land use and such vesting shall not be
affected by a subsequent amendment to a
zoning ordinance when the landowner
(i) obtains or is the beneficiary of a
significant affirmative governmental act
which remains in effect allowing development
of a specific project, (ii) relies in good
faith on the significant affirmative
governmental act, and (iii) incurs extensive
obligations or substantial expenses in
diligent pursuit of the specific project in
reliance on the significant affirmative
governmental act.[6]
"The clear intent of the statute is to provide a property
owner with protection from a subsequent amendment to a zoning
ordinance when the owner has already received approval for and
made substantial efforts to undertake a use of the property
permitted under the prior version of the ordinance." Goyonaga,
275 Va. at 243, 657 S.E.2d at 159. The statute "provides for
the vesting of a right to a permissible use of property against
any future attempt to make the use impermissible by amendment of
the zoning ordinance; it is not intended to permit, nor does it
provide for, the vesting of a right to an impermissible use
under the existing ordinance." Id. at 244, 657 S.E.2d at 160
(second emphasis added).
6
The circuit court noted that neither Bar Norfolk nor the
Café own any portion of the land upon which their respective
businesses are located. The court, however, ignored that fact
for decisional purposes because of certain language in a section
of the 1992 zoning ordinance. Whether Bar Norfolk and the Café
can claim vested rights under Code § 15.2-2307 as non-
landowners, therefore, is not before us in this appeal.
16
When Bar Norfolk and the Café opened their respective
businesses, the 1997 Ordinance required a special exception to
operate as either an "Eating and Drinking Establishment" or an
"Entertainment Establishment" in the D-1 District. Of course,
the City Council granted Waterside a blanket special exception
when it enacted the 1999 Ordinance, which applied to Bar Norfolk
and the Café. Upon revocation of the blanket special exception
with the enactment of the 2009 Ordinance, Bar Norfolk and the
Café asserted vested rights under the 1983 Ordinance to operate
as Entertainment Establishments and to provide alcoholic
beverages for on-premises consumption. That ordinance, however,
only authorized "the use of property as an urban marketplace
type shopping center having uses such as . . . food and beverage
stalls and restaurants, including the sale of beer, wine and
mixed beverages for on-premises consumption within [a] piece or
parcel of land known and designated as Parcel R-1." (Emphasis
added.)
As the circuit court found, no portion of Bar Norfolk's
premises was located within Parcel R-1 encompassed by the 1983
Ordinance. And, only a small portion of the Café's premises lay
within Parcel R-1. The portion of the Café within the R-1
parcel, according to the floor plan presented at trial, included
only one-eighth to one-sixth of the total space occupied by the
17
Café. 7 Furthermore, the 1983 Ordinance did not create any
special exception for business establishments located in Parcel
R-1 to operate as an "Entertainment Establishment."
Thus, except for the small portion of the Café's premises
that was within Parcel R-1, the special exception found in the
1983 Ordinance did not apply to either Bar Norfolk's or the
Café's business establishment. Providing entertainment or
serving alcoholic beverages for on-premises consumption was
never a permissible use of their respective properties under the
1983 Ordinance. Because Bar Norfolk and the Café assert vested
rights to an impermissible land use under the 1983 Ordinance,
the circuit court did not err in finding that neither had any
vested rights under Code § 15.2-2307. See Goyonaga, 275 Va. at
244, 657 S.E.2d at 160 ("Code § 15.2-2307 provides for the
vesting of a right to a permissible use of property . . . ; it
is not intended to permit, nor does it provide for, the vesting
of a right to an impermissible use under the [applicable]
ordinance.").
Alternatively, Bar Norfolk and the Café assert the right to
continue their business operations pursuant to Code § 15.2-
2311(C). They contend that the "Cash Receipt" each of them
received, which was signed by the zoning administrator, bore the
7
Bar Norfolk and the Café do not contest these factual
findings.
18
description of "Zoning Clearance for Business License," and
listed the "License Category" as an "Eating Place," constituted
a determination that they could operate as "Entertainment
Establishments" and sell alcoholic beverages for on-premises
consumption. The provisions of Code § 15.2-2311(C), according
to Bar Norfolk and the Café, prohibit any change or modification
to that determination.
That section states:
In no event shall a written order,
requirement, decision or determination made
by the zoning administrator or other
administrative officer be subject to change,
modification or reversal by any zoning
administrator or other administrative
officer after 60 days have elapsed from the
date of the written order, requirement,
decision or determination where the person
aggrieved has materially changed his
position in good faith reliance on the
action of the zoning administrator or other
administrative officer unless it is proven
that such written order, requirement,
decision or determination was obtained
through malfeasance of the zoning
administrator or other administrative
officer or through fraud. The 60-day
limitation period shall not apply in any
case where, with the concurrence of the
attorney for the governing body,
modification is required to correct clerical
errors.
In contrast to Code § 15.2-2307, this section "does provide for
the potential vesting of a right to use property in a manner
that otherwise would not have been allowed." Goyonaga, 275 Va.
19at 244, 657 S.E.2d. at 160 (internal quotation marks omitted).
Nevertheless, we agree with the circuit court.
The "Cash Receipt" was not a specific determination by the
zoning administrator or any other City official that either of
these businesses could use their respective premises in a manner
not otherwise allowed under the zoning ordinances in effect at
that time. See Board of Supervisors v. Crucible, Inc., 278 Va.
152, 161, 677 S.E.2d 283, 288 (2009); Code § 15.2-2307 (the
"following are deemed to be significant affirmative governmental
acts[:] (vii) the zoning administrator . . . has issued a
written order, requirement, decision or determination . . . .").
In other words, those documents did not reflect a determination
that either Bar Norfolk or the Café could operate as an
"Entertainment Establishment" and provide alcoholic beverages
for on-premises consumption contrary to the terms of either the
1983 or the 1997 Ordinances. Furthermore, the apparent
acquiescence of the City officials in the business operations of
Bar Norfolk and the Café does not satisfy the specific
requirements of Code § 15.2-2311(C).
"The burden of establishing the vesting of a right to an
otherwise impermissible use of property under Code § 15.2-
2311(C) falls upon the property owner." Goyonaga, 275 Va. at
244, 657 S.E.2d at 160. Bar Norfolk and the Café did not
satisfy that burden. Thus, the circuit court did not err in
20
determining that neither Bar Norfolk nor the Café had any vested
rights under this statute.
B. Statutory Notice and Constitutional Due Process Rights
Bar Norfolk and the Café argue that the City Council
provided inadequate public notice of agenda item R-19A, to
revoke the 1999 Ordinance, in violation of Code § 15.2-2204, and
that its denial of their special exception applications without
allowing an opportunity for adequate preparation was arbitrary,
capricious, and a violation of their due process rights. 8
According to Bar Norfolk and the Café, the City Council denied
them adequate notice and a reasonable opportunity to be heard.
They contend that the City Council's procedures "did not comply
with law, . . . due process or basic notions of fairness and
reasonable conduct."
Code §§ 15.2-2204(A) and (B) contain certain advertising
and written notice requirements applicable when, inter alia, a
governing body intends to adopt a comprehensive plan, zoning
8
Bar Norfolk and the Café also claim that the City
Council's inclusion of agenda item R-19A violated Code § 2.2-
3707(F). That section requires that "[a]t least one copy of all
agenda packets and, unless exempt, all materials furnished to
members of a public body for a meeting shall be made available
for public inspection at the same time such documents are
furnished to the members of the public body." They did not make
this argument in the circuit court, and we, therefore, will not
consider it on appeal. See Rule 5:25.
21
ordinance, or amendment thereof. 9 Code § 15.2-2204(B), however,
provides:
A party's actual notice of, or active
participation in, the proceedings for which
the written notice provided by this section
is required shall waive the right of that
party to challenge the validity of the
proceeding due to failure of the party to
receive the written notice required by this
section.
Bar Norfolk and the Café were notified two weeks in advance
of the date of the meeting at which the City Council would
consider their special exception applications. As the circuit
court found, their counsel, employees, and representatives were
present at the City Council meeting, and some addressed not only
the special exception applications but also the proposed
ordinance to revoke the 1999 Ordinance. Both Bar Norfolk and
the Café had actual notice and actively participated in the City
Council meeting, thus waiving any challenge to the notice based
on the statutory provisions. See Code § 15.2-2204(B).
"In procedural due process claims, the deprivation by state
action of a constitutionally protected interest in 'life,
liberty, or property' is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without
due process of law." Zinermon v. Burch, 494 U.S. 113, 125
9
Contrary to Bar Norfolk's and the Café's arguments, those
sections address only advertising requirements, not public
notice of the items on a governing body's meeting agenda.
22
(1990). In other words, "individuals whose property interests
are at stake are entitled to notice and an opportunity to be
heard." Dusenbery v. United States, 534 U.S. 161, 167 (2002)
(internal quotation marks omitted). Bar Norfolk and the Café
had both. Thus, the circuit court did not err in determining
that any statutory notice to which Bar Norfolk and the Café were
entitled under Code § 15.2-2204 was waived by their actual
notice of and active participation in the City Council meeting,
and that the City Council did not violate Bar Norfolk's and the
Café's procedural due process rights. 10
III. CONCLUSION
In summary, Bar Norfolk and the Café did not acquire any
vested rights under either Code § 15.2-2307 or Code § 15.2-
2311(C). Because they had actual notice of and actively
participated in the City Council meeting, any statutory notice
issues were waived and their constitutional rights were not
violated.
For these reasons, we will affirm the circuit court's
judgments.
Affirmed.
10
The circuit court did not determine, nor do we, whether
Bar Norfolk and the Café were actually entitled to written
notice under Code § 15.2-2204.
23