1998

Montgomery v. Zoning Appeals Bd.

Virginia Circuit Court

45 Va. Cir. 126

Landowner sought to rehabilitate a duplex property. The duplex had not always retained two separate tenants. Montgomery, an adjacent landowner, asserted property had not been utilized as a duplex for more than two years, and its non-conforming use had been lost. Board ruled in favor of duplex owner and decision was appealed to circuit court. Court upheld Board’s decision to continue the non-conforming use of over fifty years duration. Courts carefully scrutinize any taking of property, caused by removing an existing right for a purpose that was permissible, before a zoning change took away that right prospectively. No existing vested right to use property may be impaired by rezoning and such non-conforming prior use may continue until it is discontinued by the landowner. As the landowner had not discontinued the non-conforming use for more than two years, the use as a duplex was allowed.

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