Present: All the Justices 

MANUEL E. GOYONAGA, ET AL. 

 OPINION BY 

v. Record No. 070229 JUSTICE LAWRENCE L. KOONTZ, JR. 

 February 29, 2008 

BOARD OF ZONING APPEALS FOR 

 THE CITY OF FALLS CHURCH 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Joanne F. Alper, Judge 

This appeal arises from a petition for certiorari 

filed in the appropriate circuit court challenging a stop 

work order issued by a zoning administrator and upheld on 

appeal to the local board of zoning appeals. The stop work 

order was issued to prohibit renovations of a residential 

structure that qualified as a pre-existing nonconforming 

use under the applicable zoning ordinance. The circuit 

court found no error in the decision of the board of zoning 

appeals, and also denied a request for a declaratory 

judgment that the property owners had acquired a vested 

right to continue the nonconforming use of the property. 

The principal issue in this appeal is whether the initial 

decision of a board of zoning appeals to grant a variance 

allowing a nonconforming structure to be enlarged and 

extended converts the structure into a conforming use for 

subsequent applications of the zoning ordinance. 
BACKGROUND 

Manuel E. Goyonaga and his wife, Lourdes CalatayudLevy, (collectively, “the Goyonagas”) own a residential 

home in the City of Falls Church. The home is located in 

an R-1B zone as defined by that city’s zoning ordinance. 

The lot on which the home was constructed was created by a 

1928 subdivision pre-dating the current zoning ordinance. 

The lot now would be treated as a substandard lot because 

it lacks sufficient width and its total area is less than 

is permitted to qualify as a buildable lot in an R-1B zone.1 

Falls Church City Code § 38-17(e)(1). Moreover, the home 

itself does not conform to the minimum side yard setback of 

10 feet required by the ordinance for a structure in an R1B zone because the side yards are approximately 8 feet and 

8.4 feet from the side lot lines. Falls Church City Code 

§ 38-17(e)(3). Thus, it is not disputed that both the lot 

and the home became pre-existing nonconforming uses when 

the current ordinance went into effect. Falls Church City 

Code § 38-6(b). 

 

1

 Under Falls Church City Code § 38-28(b)(2), a preexisting substandard lot in an R-1B zone may be used for 

construction of a single-family residential home provided 

that certain criteria are met. Although reference to this 

provision of the city code was made during oral argument of 

this appeal, the Goyonagas do not assert its application as 

a basis for challenging the stop work order. 

2
As pre-existing nonconforming uses, the lot and home 

were subject to certain restrictions on changes to the use 

of the lot or alteration of the structure under the zoning 

ordinance. Relevant to the issues raised in this appeal, 

the Falls Church City Code provides that a “structural 

addition” to a nonconforming structure is permissible in 

certain cases provided that “[n]o portion of the addition 

would be closer to a front or side lot line than the 

existing structure.” Falls Church City Code § 38-6(c)(3). 

The zoning administrator is authorized under this 

subsection of the ordinance to approve an application for 

such an addition or to “deny such application and refer the 

application to the board of zoning appeals for 

consideration of a variance.” Id.

The ordinance further provides that 

[i]f any building in or on which a nonconforming 

use is maintained is . . . removed or demolished 

. . . or damaged by . . . any means whatever to 

an extent equal to seventy-five (75) percent of 

its assessed value for the year . . . the right 

of such nonconforming use to continue shall cease 

at the time of such . . . removal . . . and no 

further use shall be made of the property except 

as permitted in the district in which it is 

located. 

Falls Church City Code § 38-6(c)(2). Unlike subsection 

(c)(3), however, the zoning administrator is not authorized 

to grant an exemption from the provisions of subsection 

3
(c)(2). Any such exemption must be obtained in the form of 

a variance granted by the board of zoning appeals under 

Falls Church City Code § 38-10(f). 

In 2004, the Goyonagas applied to the Board of Zoning 

Appeals for the City of Falls Church (“BZA”) for a variance 

to enlarge and extend their home by adding a second story 

to the existing structure and an addition at the rear of 

the structure. The application represented that the 

proposed renovations and addition would remain within the 

existing, nonconforming side yard setbacks of the original 

home. No representation was made in this application that 

the renovations would require complete demolition of the 

front and side exterior walls of the home. On October 21, 

2004, the BZA approved the application for a variance to 

permit the enlargement and extension as specified in the 

application. 

Following approval of the variance, the Goyonagas 

submitted building plans to the city’s zoning administrator 

and building and planning office. The zoning administrator 

found that the proposed depth of the addition to the rear 

of the home would have increased the structure’s total 

coverage of the lot beyond what was permitted in an R1-B 

zone and required the Goyonagas to shorten the addition by 

4 feet. Similarly, building officials required certain 

4
modifications to the plans to be made, including a 

requirement that the portion of the existing walls that 

would not be demolished be reinforced to comply with 

current building codes and to support the proposed second 

story addition. Once these changes were made, the plans 

were approved by both the zoning and building officials, 

and a building permit was issued. 

Construction commenced with the demolition of the 

portions of the original structure that were to be removed, 

including the roof, the back wall, and a portion of the 

side walls. It is not disputed that the portion of the 

original structure remaining following this initial 

demolition exceeded 25% of the structure as measured by its 

assessed value. Accordingly, at this point in the 

reconstruction, the requirements of Falls Church City Code 

§ 38-6(c)(2) had not been violated. 

The Goyonagas did not hire a general contractor, but 

oversaw the renovations themselves, employing individual 

contractors to perform the majority of the work. In this 

manner, the Goyonagas assumed the ultimate responsibility 

to assure compliance with the zoning and building codes as 

the work progressed. During the course of the demolition 

work, a building inspector determined that the structural 

integrity of the portion of the exterior walls that was to 

5
have been retained was inadequate to support the proposed 

new construction.2 The building inspector required 

additional demolition of the exterior walls, which would 

require more than 75% of the original structure to be 

removed. The Goyonagas directed a contractor to go forward 

with the additional demolition without contacting the 

zoning office to determine whether a further variance would 

be needed. As a result of the additional demolition, as 

the circuit court would subsequently find, “the original 

house [was] demolished[,] except for portions of the 

foundation.” Following the demolition, work commenced with 

the construction of new exterior cinderblock walls along 

the same perimeter of the former structure. 

On March 10, 2006, the zoning administrator conducted 

a site visit and determined that as “the original structure 

has been totally demolished . . . the work done to date is 

clearly outside the scope of work on the approved building 

permit and conflicts with Section 38-6 of the City Code 

 

2

 The parties dispute whether the cause of the 

structural instability arose from latent defects in the 

original construction or was the result of improper 

demolition operations. Although the BZA contends that the 

circuit court resolved this issue in the BZA’s favor, the 

record is not clear on that point. However, as will become 

apparent, it is not necessary for us to resolve this 

dispute, as it is not germane to the issues on appeal. 

6
regarding replacement of nonconforming structures.” On 

March 20, 2006, the zoning administrator issued a stop work 

order, and directed that the new construction was to be 

removed and that any new structure subsequently built would 

be required to comply with the setback and lot coverage 

requirements for new construction in an R-1B zone. 

On April 10, 2006, the Goyonagas filed an appeal of 

the stop work order with the BZA. In their initial 

communication to the zoning administrator challenging the 

stop work order, the Goyonagas maintained that because the 

new construction would remain within the original footprint 

of the former home, the addition complied with the October 

21, 2004 variance. The Goyonagas contended that “[b]y its 

conformance with the setback variances granted by the Board 

of Zoning Appeals, the subject building is no longer 

nonconforming and meets all setback requirements.” 

(Emphasis added.) 

The BZA conducted a hearing on the Goyonagas’ appeal 

of the stop work order on May 4, 2006. At the hearing, the 

Goyonagas’ counsel reiterated the position that the 

reconstruction would “put the [exterior] walls back in the 

same place” that the variance had already permitted and, 

thus, he contended that a home built within those limits 

should be treated as a conforming use of the property for 

7
all purposes under the zoning ordinance. In denying the 

Goyonagas’ appeal, the BZA made an express finding that 

“the structure was, in fact, demolished.” On May 8, 2006, 

the zoning administrator advised the Goyonagas of the BZA’s 

decision, and the stop work order remained in effect. 

The Goyonagas filed a petition for writ of certiorari 

and declaratory relief in the Circuit Court of Arlington 

County, pursuant to Code § 15.2-2314, seeking review of the 

BZA’s decision to deny their appeal of the stop work order. 

Specifically, the Goyonagas contended that the BZA had 

erred in determining “that the property constituted a 

nonconforming use[,] . . . that the removal and replacement 

of existing walls, in accordance with instructions by the 

City building inspector, nullified the variance previously 

granted by the BZA[, and in] its determination that the 

building was totally demolished” for purposes of applying 

Falls Church City Code § 38-6(c)(2). The Goyonagas also 

sought a declaratory judgment that they had acquired a 

vested right to construct a home in accord with and as a 

result of the building plans being approved by the city 

zoning and building officials. They contended that such a 

vested right accrued without regard to whether the home was 

a renovation of an existing structure or new construction. 

8
The circuit court issued a writ of certiorari to the 

BZA. In its return and subsequent answer to the Goyonagas’ 

petition, the BZA denied that its findings were not 

supported by the record or that its decision to deny the 

appeal of the stop work order was arbitrary, capricious, or 

otherwise contrary to law. The BZA also denied that the 

Goyonagas had acquired a vested right to construct a new 

home in accord with the building plans. The BZA requested 

that the petition be dismissed. 

On August 2, 2006, the circuit court conducted a 

hearing on the Goyonagas’ challenge to the decision of the 

BZA upholding the stop work order and their request for 

declaratory relief. Evidence in accord with the aboverecited facts was received through the testimony of Mr. 

Goyonaga, a subcontractor and one of his employees, the 

zoning administrator, and a building inspector. At the 

conclusion of the hearing, the circuit court stated that it 

had not heard “any evidence that the factual determinations 

of the BZA were incorrect or improper.” Thus, the court 

ruled that the BZA had properly determined that when the 

“original house was demolished, as is defined in the code 

and in common understanding, [the Goyonagas] lost the right 

to the nonconforming use on this particular piece of 

property.” The court further opined that the actions of 

9
the zoning inspector and the building officials in 

approving the building plans did not give the Goyonagas a 

vested right to construct a nonconforming home on their 

lot. Accordingly, the court ruled that the decision of the 

BZA would be affirmed. 

Before the circuit court entered the final order, the 

Goyonagas filed a motion for reconsideration, reiterating 

and expanding upon their position that under Code §§ 15.2-

2307 and 15.2-2311 they had acquired a vested right to 

construct the home in accord with the building plans as 

approved by the zoning administrator and the building 

officials. They also reiterated their contention that 

“[t]he setback requirements for [the Goyonagas’] property 

were established by the [October 21, 2004] variance . . . . 

Thus, the [Goyonagas’] structure was no longer a 

nonconforming use.” 

On October 30, 2006, the circuit court conducted a 

hearing on the motion for reconsideration and denied the 

motion. In a final order entered the same day, the court 

affirmed the decision of the BZA upholding the zoning 

administrator’s stop work order. We awarded the Goyonagas 

this appeal. 

DISCUSSION 

10
The standard of review applicable in this case is well 

established. “The decision of a board of zoning appeals is 

presumed to be correct on appeal to a circuit court; the 

appealing party bears the burden of showing that the board 

applied erroneous principles of law or that its decision 

was plainly wrong and in violation of the purpose and 

intent of the zoning ordinance.”3 City of Suffolk v. Board 

of Zoning Appeals, 266 Va. 137, 142, 580 S.E.2d 796, 798 

(2003). “A circuit court decision affirming a board of 

zoning appeals determination is also accorded this 

presumption of correctness on appeal to this Court.” Id.

at 142-43, 580 S.E.2d at 798; see also Cherrystone Inlet, 

LLC v. Board of Zoning Appeals, 271 Va. 670, 675, 628 

S.E.2d 324, 236 (2006). 

The Goyonagas first assert that the circuit court 

erred in affirming the decision of the BZA because the 

 

3

 As of July 1, 2006, the provisions of Code § 15.2-

2314 state that on a petition for certiorari to a circuit 

court, while “the findings and conclusions of the board of 

zoning appeals on questions of fact shall be presumed to be 

correct . . . [t]he court shall hear any arguments on 

questions of law de novo.” 2006 Acts ch. 446. Because the 

petition for certiorari in this case was filed before the 

effective date of the amendment of Code § 15.2-2314, the 

circuit court would have applied the former version of the 

statute, and we will review the circuit court’s judgment in 

light of this procedural posture of the case. See Adams 

Outdoor Advertising, L.P. v. Board of Zoning Appeals, 274 

Va. 189, 195 n.3, 645 S.E.2d 271, 274 n.3 (2007). 

11
October 21, 2004 variance “established new zoning 

regulations specific to this property” and, thus, it was 

thereafter to be treated as a conforming property subject 

to the limitations of the variance.4 We disagree. 

The Goyonagas’ assertion that the variance 

“establish[ed] new zoning regulations specific to this 

property” mischaracterizes the purpose and function of a 

variance. “[V]ariances exist to relieve property owners 

from unnecessary or unreasonable hardship resulting from 

strict application of zoning provisions. However, such 

relief is limited by Code §§ 15.2-2201 and -2309 to the 

 

4

 In briefing this appeal, the Goyonagas contend that 

“[t]he distinction between a nonconforming use and a 

[conforming] use permitted by a variance was recently 

codified . . . in Code Section 15.2-2309.” Specifically, 

the Goyonagas note that the statute was amended to provide 

that “[n]otwithstanding any other provision of law, the 

property upon which a property owner has been granted a 

variance shall be treated as conforming for all purposes 

under state law and local ordinance; however, the use or 

the structure permitted by the variance may not be 

expanded.” 2006 Acts ch. 264. This amendment to Code 

§ 15.2-2309 became effective July 1, 2006 after the BZA’s 

decision had been rendered and while the petition for 

certiorari was pending before the circuit court. Contrary 

to an assertion made by counsel for the Goyonagas during 

oral argument of this appeal, the courts do not apply 

amendments to the Code retroactively unless the authorizing 

legislation clearly indicates that it is the General 

Assembly’s intent that we do so. Adams v. Alliant 

Techsystems, Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356 

(2001). Accordingly, the language of the 2006 amendment to 

Code § 15.2-2309 has no application in this case, and we 

will express no opinion as to its effect. 

12
granting of variances from ‘those provisions regulating the 

size or area of a lot or parcel of land, or the size, area, 

bulk or location of a building or structure.’ ” Adams 

Outdoor Advertising, Inc. v. Board of Zoning Appeals, 261 

Va. 407, 415, 544 S.E.2d 315, 319 (2001). The variance 

granted by the BZA to the Goyonagas on October 21, 2004 

comports with this principle. That variance permitted the 

Goyonagas, despite the nonconforming use of their property 

under Falls Church City Code § 38-6(c)(3), to improve and 

extend their home within the existing, nonconforming side 

yard setbacks. 

The variance did not relieve the Goyonagas from having 

to comply with other aspects of the zoning ordinance that 

were not directly addressed by the application for the 

variance as approved by the BZA. The variance did not 

permit an increase in the maximum lot coverage limitations 

for a structure in an R-1B zone. Indeed, the Goyonagas did 

not and could not challenge the requirement of the zoning 

administrator that they reduce the length of the addition 

to the home by 4 feet, even though the addition was within 

the setbacks allowed by the variance. 

Similarly, nothing in the variance as granted by the 

BZA under Falls Church City Code § 38-6(c)(3) can be 

interpreted as relieving the property from the application 

13
of the requirement of Falls Church City Code § 38-6(c)(2) 

that a nonconforming structure cannot be “removed or 

demolished . . . or damaged by . . . any means whatever to 

an extent equal to seventy-five (75) percent of its 

assessed value for the year.” Accordingly, we will affirm 

the judgment of the circuit court finding no error in the 

decision of the BZA with respect to the determination that 

the demolition of the Goyonagas’ home, except for portions 

of the foundation, resulted in the loss of the right to 

continue the nonconforming use of the property. 

The Goyonagas also contend that the circuit court 

erred in not granting them the requested declaratory relief 

and ruling that their reliance on the actions of the zoning 

administrator and building officials in approving the 

building plans submitted after the variance was granted 

afforded them a vested right to construct a home on the 

property in accord with those plans. They contend that 

this is so because the building plans submitted to the city 

zoning and building officials established that the exterior 

walls of the home would need to be reinforced in order to 

comply with current building code standards and the 

approval of the plans by the city officials constituted 

“significant affirmative governmental acts allowing 

development of a specific project.” Code § 15.2-2307. 

14
Thus, by relying on the approval of the plans and the 

subsequent instruction of the building inspector to 

“reinforce” the walls by replacing them, the Goyonagas 

contend that the statute provided them with a “vested 

right” to develop the property in accord with those plans 

once they had expended significant resources on the 

construction of the home. Alternately, the Goyonagas 

contend that the zoning administrator’s approval of the 

building plans ripened into a vested right 60 days after 

the approval was given because they “ha[d] materially 

changed [their] position in good faith reliance on the 

action of the zoning administrator.” Code § 15.2-2311(C). 

We disagree with both of these contentions. 

With respect to the application of Code § 15.2-2307, 

that statute provides that a property owner who “(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” becomes 

vested with the right to develop the property in accord 

with that act regardless of “a subsequent amendment to a 

15
zoning ordinance.” Assuming, without deciding, that the 

approval of the building plans by the city officials 

constituted the “significant affirmative governmental act[] 

allowing development of a specific project” contemplated by 

the statute, it is plain that the zoning administrator’s 

subsequent determination that demolition of the structure 

to its foundation violated Falls Church City Code § 38-

6(c)(2) and resulted in the loss of the property’s 

nonconforming status did not arise from “a subsequent 

amendment to [the] zoning ordinance.” 

The Goyonagas protest that it “makes no sense” that 

that Code § 15.2-2307 provides a vested right “only . . . 

if the City of Falls Church enacted a zoning ordinance 

change, but no vested right if the [z]oning [a]dministrator 

decides to change his position and apply the nonconforming 

use standard in [Falls Church] City Code § 38-6[(c)(2)] 

after he had approved the plans, building permits had been 

issued and construction had begun.” This protest, however, 

reflects a fundamental misunderstanding of Code § 15.2-

2307.

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 

16
use of the property permitted under the prior version of 

the ordinance. Here, even if it can be assumed that the 

zoning administrator was aware that complete demolition of 

the home was called for in the building plans, at least as 

a possible alternative to reinforcement of the existing 

walls, he did not have authority to permit the Goyonagas to 

violate Falls Church City Code § 38-6(c)(2) by completely 

demolishing a nonconforming structure and replacing it with 

new, nonconforming construction. See Segaloff v. City of 

Newport News, 209 Va. 259, 262, 163 S.E.2d 135, 137 (1968) 

(city official cannot authorize a violation of zoning 

ordinance); see also Foster v. Geller, 248 Va. 563, 568, 

449 S.E.2d 802, 806 (1994) (requirement for special use 

permit “could not be circumvented simply by adhering to 

conditions prescribed” by city official). In short, Code 

§ 15.2-2307 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. 

Code § 15.2-2311(C), by way of contrast, does provide 

for the potential vesting of a right to use property in a 

manner that “otherwise would not have been allowed.” Snow 

17
v. Amherst County Bd. of Zoning Appeals, 248 Va. 404, 407, 

448 S.E.2d 606, 608 (1994). We will assume, without 

deciding, that here the zoning administrator’s approval of 

the building plans constituted under the statute “a written 

order, requirement, decision or determination” that would 

not “be subject to change, modification or reversal . . . 

after 60 days have elapsed from the date” of that action. 

Code § 15.2-2311(C). The issue then is whether the zoning 

administrator’s approval of the building plans constituted 

a waiver, albeit an improper one, of the requirements of 

Falls Church City Code § 38-6(c)(2). We conclude that the 

circuit court correctly determined that the evidence did 

not establish that the zoning administrator’s approval of 

the building plans included an authorization to effect the 

complete demolition of the existing structure. 

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. Snow, 248 Va. at 

407, 448 S.E.2d at 608. The Goyonagas, therefore, were 

required to show that the zoning administrator, in 

reviewing the building plans, would have understood that 

the home at least potentially was to have been completely 

demolished to its foundation and an entirely new structure 

was to have been erected in its place. The building plans 

18
do not reflect any such potentiality. To the contrary, 

even an exhausting examination of these plans as originally 

submitted necessarily would lead only to the single 

conclusion that the front and principal portions of both 

side walls of the existing structure were to be retained.5 

We therefore hold that the Goyonagas did not meet their 

burden of proof to establish that they could have 

reasonably relied upon the zoning administrator’s approval 

of the building plans as authorizing them to completely 

 

5

 In a further assignment of error, the Goyonagas 

contend that the circuit court erred in failing to admit 

into evidence an exhibit, a single line drawing from the 

building plans designated as “S101,” that they contend 

established by a marginal note that the plans “permitted an 

alternative to retaining three existing exterior walls” of 

the property. The BZA notes that two other copies of the 

same page from the plans appear in the record without the 

marginal note upon which the Goyonagas rely. However, even 

assuming that the marginal note appeared on the copy of the 

plans reviewed by the zoning administrator, that single 

note would not alter our conclusion that the plans as a 

whole did not clearly establish that the home could be 

completely demolished to its foundation. Accordingly, any 

error in failing to admit this exhibit was harmless. For 

the same reason, we need not consider the Goyonagas final 

assignment of error addressing the circuit court finding 

that the building plans expressly “called for the 

preservation of 25% of the original house in accordance 

with [Falls Church City Code] Section 38-6[(c)(2)].” The 

burden was not on the BZA to show that plans comported with 

the requirements of the zoning ordinance; rather, as we 

have stated, the burden was on the Goyonagas to establish 

that the plans were plainly contrary to the requirements of 

the ordinance, but were nonetheless approved by the zoning 

administrator. 

19
20

demolish the home and replace it with a new, nonconforming 

structure. For these reasons, we further hold that the 

circuit court did not err in ruling that the Goyonagas did 

not have a vested right to continuing use of their property 

in a manner inconsistent with the current requirements of 

the zoning ordinance. 

CONCLUSION 

In summary, we hold that the circuit court did not err 

in ruling that the BZA properly determined that the October 

21, 2004 variance did not result in the Goyonagas' property 

becoming a conforming use for purposes of applying Falls 

Church City Code § 38-6(c)(2). We further hold that the 

circuit court correctly determined that the Goyonagas 

failed to establish that they had a vested right to 

continue the nonconforming use of their property after the 

existing home had been completely demolished to its 

foundation. Accordingly, the judgment of the circuit court 

will be affirmed. 

Affirmed.