William E. Vaughn v City of Newport News

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Willis and
Retired Judge Whitehurst*
Argued at Norfolk, Virginia
WILLIAM E. VAUGHN
v. 	Record No. 	0669-94-1 	OPINION BY
CHIEF JUDGE NORMAN K. MOON
CITY OF NEWPORT NEWS 	JUNE 27, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Stephen A. Dunnigan for appellant.
Denise A. Dunn, Assistant Commonwealth's
Attorney (Office of the Commonwealth's
Attorney, on brief), for appellee.
William E. Vaughn appeals his conviction for violating § 421
of the Newport News City Code, which prohibits "outside storage
of goods, materials and equipment." 	Vaughn argues that because
"goods, materials and equipment" are not defined in § 421, the
statute is unconstitutionally vague and overly broad.
While Vaughn correctly contends that the Newport News City
Code does not define "goods, materials, and equipment," a fair
reading of § 421 in its entirety and in conjunction with the
language in the city's zoning ordinance shows that § 421 is
reasonably definite in its scope as to the prohibited conduct
and, therefore, not unconstitutionally vague. 	For this reason,
we affirm.
The pertinent facts which are not disputed are that Vaughn
* Retired Judge Alfred W. Whitehurst took part in
consideration of this case by designation pursuant to Code
§ 17-116.01.

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had numerous items, including appliances, pieces of wood, pipes,
and other miscellaneous items, stored outside on his business
property. 	Vaughn, whose property is zoned Retail Commercial,
received a written notice of and notice to correct the violations
within fifteen days. 	More than two months later, he received a
summons for failing to abate the violations.
The void-for-vagueness doctrine requires that a legislative
enactment define a criminal offense with sufficient definiteness
and certainty that "ordinary people can understand what conduct
is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement." 	Kolender v. Lawson, 461 U.S.
352, 357 (1983). 	This Court has further explained that
"[a]lthough absolute precision is not required, a law must afford
a reasonable degree of certainty so that a person is not left to
guess at what conduct is prohibited." 	Turner v. Jackson, 14 Va.
App. 423, 433, 417 S.E.2d 881, 888 (1992).
While § 421 does not define "goods, material and equipment,"
it permits outside storage of goods, materials and equipment as a
matter of right only in manufacturing zoning districts and, with
the issuance of a special exception, in a C2-A zoning district.
Vaughn's property is zoned neither Manufacturing nor C2-A.
Section 421 further delineates exceptions to the section's
provisions and lists a number of situations where outside storage
of goods, materials, and equipment is legislatively declared as
not to be included within the term "outside storage." 	Thus,
§ 421 affords an individual reasonable notice as to what is and

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what is not prohibited by the ordinance.
Moreover, §§ 402, 412, and 1402 provide that the prohibition
of "outside storage" would not extend to any "goods, materials,
and equipment" that would ordinarily be associated with permitted
uses, as an "accessory use," in other zoning districts. 	Section
1402(C) provides as follows:
Accessory uses. 	Any use customarily incidental or
accessory to any of the above uses is permitted in this
district when clearly established as an accessory use
to a permitted use.
This language or similar language is included in every other
zoning classification in the city's zoning ordinance.
Accordingly, stock or inventory could be stored in the rear of
Vaughn's premises because it is zoned Retail Commercial.
Contrary to Vaughn's contention, a swing set would not be
prohibited in the backyard of a residence, because swing sets are
incidental to residential use. 	However, appliances, pieces of
wood, pipes, and the other miscellaneous items located on
Vaughn's property are not accessory to any permitted use of his
property.
Vaughn's argument overlooks the inclusive nature of the
statutory scheme of the city's zoning ordinance, i.e., that only
where exceptions are made within § 421 or where "outside storage"
of other objects is made to fall outside the purview of § 421 via
other sections in the ordinance, can such "goods, material and
equipment," be stored outside of one's premises. 	Put simply, the
city's zoning ordinance prohibits the outside storage of anything

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except as otherwise stated within its sections. 	By negative
inference, the statutory scheme creates a prohibition which
allows the ordinance's primary purpose to be carried out without
specifically enumerating every single item which the city did not
want stored outside. 	Vaughn's argument, were it accepted, would
put in doubt all similar zoning ordinances which are inclusive in
nature.
Section 402 states that "[n]o land shall be used except for
a purpose permitted in the district in which such land is
located." 	The ordinance makes clear that only uses specifically
enumerated within a zoning district are permitted without a
special use permit. 	The Supreme Court of Virginia has approved
inclusive zoning ordinances which specify uses which are
permitted in the respective zones and do not specify those uses
which are prohibited therein. 	Board of Supvrs. v. Gaffney, 244
Va. 545, 549-50, 422 S.E.2d 760, 763 (1992). 	Vaughn's property
is not in a manufacturing zoning district. 	He has no special
exception for the subject parcel and he has not argued that the
goods stored on his property are "accessory" to a permitted use.
In conclusion, we hold that § 421, taken as a whole and in
conjunction with the language in the city's zoning ordinance,
affords a reasonable degree of certainty and is not
unconstitutionally vague.
Affirmed.