Present: All the Justices 

KIM D. TRAN AND JOSEPH NGUYEN, 

T/A ROLLING VALLEY NAIL CARE 

v. Record No. 992812 OPINION BY JUSTICE DONALD W. LEMONS 

 November 3, 2000 

BOARD OF ZONING APPEALS OF 

FAIRFAX COUNTY, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Dennis J. Smith, Judge 

 In this appeal, we consider three interrelated issues: 

whether the Board of Zoning Appeals’ (“BZA”) failure to render 

a decision on an appeal within 90 days in accordance with Code 

§ 15.2-2312 deprived the BZA of jurisdiction to act; whether 

continuances allowed by The Zoning Ordinance of Fairfax 

County, Virginia1 § 18-306(3) conflict with provisions of Code 

§ 15.2-2312; and whether the BZA’s failure to act for 550 days 

resulted in a denial of due process. 

I. Background 

 Kim D. Tran and Joseph Nguyen, trading as Rolling Valley 

Nail Care (“Nail Care”) leased from Harry L. Bedsworth 

(Bedsworth) an office condominium located in the Rolling 

Valley Professional Center (“Center”), a commercial townhouse 

development, consisting of 35 units located in 7 separate 

 1

 The regulations contained in The Zoning Ordinance of 

Fairfax County, Virginia constitute Chapter 112 of the 1976 

Code of the County of Fairfax, Virginia and will be referred 

to as “zoning ordinance.” All references herein to “Code” 

will refer to the Virginia Code. 
townhouses or low-rise buildings. The property leased to Nail 

Care was zoned C-1, Low-rise Office Transitional District. 

 On October 4, 1996, the Zoning Administrator granted a 

Non-Residential Use Permit (“Non-RUP”) to Nail Care entitling 

Nail Care to operate a personal service establishment as an 

accessory service use. On November 1, 1996, the Rolling 

Valley Professional Center Condominium Unit Owners Association 

(“the Association”) filed an application for appeal with the 

BZA challenging the issuance of the Non-RUP to Nail Care. 

 A public hearing on the matter was originally scheduled 

for January 28, 1997, but was rescheduled to March 4, 1997, at 

the request of the Association to “allow Zoning Enforcement 

the time necessary to evaluate the situation to determine if a 

violation of the Zoning Ordinance exist[ed].” The March 4, 

1997 hearing was again rescheduled at the request of the 

Association in order to allow the BZA “additional time to 

further investigate the circumstances surrounding the issuance 

of the Non-Residential Use Permit.” The hearing was 

rescheduled five more times, always at the request of the 

Association, until it finally took place on May 5, 1998, 550 

days after the date of the Association’s appeal. No objection 

was made by Nail Care to any of these continuances. By 

unanimous decision dated May 13, 1998, the BZA reversed the 

Zoning Administrator’s issuance of the Non-RUP. 

2
 Nail Care instituted two actions in the Circuit Court of 

Fairfax County on June 2, 1998. The first action was a 

petition for a writ of certiorari seeking reversal of the 

BZA’s decision and the second was a petition for declaratory 

judgment asking the trial court to declare zoning ordinance 

§ 18-306(3) invalid because it conflicted with Code § 15.1-

496.2. Additionally, the Zoning Administrator filed a bill of 

complaint for declaratory judgment and injunctive relief 

seeking enforcement of the zoning ordinance and injunctive 

relief against further violation. The three proceedings were 

consolidated. 

 The trial court upheld the position taken by the BZA, 

holding that “the provision of Va. Code § 15.2-2312 relating 

to the time for decision of appeal is merely directory and 

procedural, not mandatory and jurisdictional, and therefore 

the BZA did not lack jurisdiction to act upon such appeal 

beyond ninety days.” Having determined that the BZA did not 

lose power to hear the matter after passage of 90 days from 

the filing of the appeal from the zoning administrator’s 

decision, the trial court held that zoning ordinance § 18-

306(3) permitting continuances is not in conflict with Code 

§ 15.2-2312. Finally, the trial court declared that Nail 

Care’s use of the premises violated applicable zoning 

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requirements and enjoined future violation. Nail Care appeals 

the adverse judgment of the trial court. 

 On appeal, Nail Care contends that the trial court erred 

in holding that the BZA had jurisdiction to render a decision 

on the Association’s appeal because it was not made within 90 

days of the filing of appeal. Nail Care further argues that 

zoning ordinance § 18-306(3) pertaining to continuances is in 

conflict with Code § 15.2-2312 and that the delay in the BZA’s 

decision denied it due process of law. 

II. Analysis 

 Code § 15.2-2312 (formerly Code § 15.1-496.2)1 provides in 

part that, “[t]he board shall fix a reasonable time for the 

hearing of an application or appeal, give public notice 

thereof as well as due notice to the parties in interest and 

make its decision within ninety days of the filing of the 

application or appeal.” Nail Care argues that by use of the 

word “shall” in the statute, the intent of the legislature was 

that an appeal to the BZA must be concluded within 90 days. 

 We have long held that “[c]ourts, in endeavoring to 

arrive at the meaning of language in a will, contract, or a 

 2

 Code § 15.1-496.2 was repealed by Acts 1997 c.587, 

effective December 1, 1997. The language of Code § 15.2-2312, 

enacted in 1997, is identical to that of Code § 15.1-496.2. 

The trial court referred to these sections interchangeably. 

For purposes of this opinion we will refer to Code § 15.2-

2312. 

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statute, often are compelled to construe ‘shall’ as permissive 

in accordance with the subject matter and content.” Fox v. 

Custis, 236 Va. 69, 77, 372 S.E.2d 373, 377 (1988). Moreover, 

we have repeatedly stated that “the use of the word ‘shall’ in 

a statute requiring action by a public official, is directory 

and not mandatory unless the statute manifests a contrary 

intent.” Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 

636, 638 (1994). We applied this well-established principle 

in Jamborsky, and held that a circuit court’s failure to 

examine certain papers and enter an order either remanding a 

case to the juvenile court or advising the Commonwealth’s 

Attorney that he may seek an indictment under former Code 

§ 16.1-269(E), which governed the transfer of a juvenile to 

stand trial as an adult, was a procedural requirement rather 

than a prerequisite to jurisdiction. Additionally, we 

observed that the statute “contains no prohibitory or limiting 

language that prevents the circuit court from entering its 

order beyond the expiration of the 21-day period.” 247 Va. at 

511, 442 S.E.2d at 638-39. 

 In Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 

(1991), we construed former Code § 18.2-268(Q), which provided 

that an executed certificate of refusal to take a blood or 

breath test “shall be attached to the warrant.” We said, 

“ ‘[a] statute directing the mode of proceeding by public 

5
officers is to be deemed directory, and a precise compliance 

is not to be deemed essential to the validity of the 

proceedings, unless so declared by statute.’ ” 241 Va. at 

324-25, 402 S.E.2d at 20 (quoting Nelms v. Vaughan, 84 Va. 

696, 699, 5 S.E. 704, 706 (1888)). 

 Code § 15.2-2312 contains no “prohibitory or limiting 

language” concerning action after the passage of 90 days. 

Accordingly, we hold that the 90-day time period for appeals 

in Code § 15.2-2312 is directory rather than mandatory and 

that the BZA did not lose jurisdiction to render a decision on 

appeal of the Zoning Administrator’s action after 90 days had 

passed. 

 Although we have determined that the BZA is permitted to 

render a decision on appeal more than 90 days after the filing 

of the appeal, failure to adhere to statutory time 

requirements may result in dismissal if due process concerns 

are not met. In Commonwealth v. Wilks, 260 Va. 194, 530 

S.E.2d 665 (2000), we considered whether the requirement of 

filing notices of seizure for forfeiture was procedural or 

jurisdictional in nature. Although we held that the notice 

requirements were procedural, we noted that “our decision is 

based on the uncontroverted fact that the putative owners did 

not suffer any prejudice as a result of the delay in giving 

notice.” Id. at 201, 530 S.E.2d at 668. An assessment of 

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whether an individual has “suffered prejudice constituting a 

denial of due process must be made on a case-by-case basis.” 

Id.

 Nail Care has presented no evidence supporting its claim 

of prejudice or harm as a result of the 550 days that passed 

before the BZA rendered a decision on the Association’s 

appeal. Additionally, Nail Care failed to object to any of 

the continuances which caused the lengthy delay. Accordingly, 

we find no merit to the contention that Nail Care was deprived 

of due process. 

 Nail Care also argues that the BZA’s grants of 

continuances to the Association beyond 90 days, pursuant to 

zoning ordinance § 18-306(3), conflict with Code § 15.2-2312. 

Zoning ordinance § 18-306(3) states that, “[t]he BZA shall 

render a decision on all applications for appeal within ninety 

(90) days from the date of acceptance, unless an extended 

period is mutually agreed to by the appellant and the BZA.” 

Nail Care’s argument is premised entirely upon its contention 

that the 90-day period for deciding an appeal set forth in 

Code § 15.2-2312 is mandatory rather than directory in nature. 

Having resolved that issue contrary to the premise, we 

conclude that the zoning ordinance permitting continuances is 

not in conflict with Code § 15.2-2312. 

III. Conclusion 

7
 We hold that the time requirement in Code § 15.2-2312 is 

directory and not mandatory, that zoning ordinance § 18-306(3) 

does not conflict with Code § 15.2-2312, and that Nail Care 

has shown no prejudice in support of its claim of denial of 

due process. Accordingly, we will affirm the judgment of the 

trial court. 

Affirmed. 

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