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Why Have Variances Become So Difficult?

Timothy R. Hughes, Esq.
Hughes & Associates, P.L.L.C.

You may have detected a recent trend. You appear before your local zoning officials and seek a variance. The variance is denied. The applicable BZA follows the same course and denies the request. Variances that were routinely granted in 2003 all of the sudden appear impossible to obtain.

These recent developments are the direct result of litigation. A series of 2004 decisions from the Virginia Supreme Court set the stage for the current stingy attitude amongst localities towards granting variances. Recent events in the General Assembly have likely done little to change this environment, so you can likely expect more of the same for the foreseeable future.

Supreme Court of Virginia Action

In 2004, three different parties in three different cases challenged actions by various local authorities to the Supreme Court of Virginia. In each case, the local authorities had granted a particular variance. In each case, the Supreme Court of Virginia held that the local authorities exceeded their powers in granting the variance. The Supreme Court of Virginia reversed each BZA action and threw out the variances.

The basic issue in each case was the standard applied for granting the variances. The Supreme Court stated that local BZAs had authority to grant variances only to avoid an unconstitutional result. The standards set forth by statute empowered local BZAs to award variances in case of “unnecessary hardship”; however, the definition of “hardship” is basically to “interfere with all reasonable beneficial use of the property, taken as a whole.”

Even without the variances, the properties in questioning the litigation all retained substantial beneficial uses and value. Thus, the strict application of the variance did not amount to a constitutional level taking of property required to support the variance. As a result, the Court found that the local authorities had illegally exceeded their statutory zoning powers by granting the variances in question. The decision departs markedly from recent practices of many BZAs which had permitted variances more frequently.

Recent Legislation

The Virginia General Assembly recently adopted changes to the variance statute. Under the old statute, a zoning administrator could permit a variance from any setback requirement found in the zoning ordinance where application of the ordinance would produce "undue hardship".

In an apparent response to the cases discussed above, the General Assembly changed some of the language in the code. The new statute now refers to "modifications" rather than variances. The zoning administrator's authority to make such "modifications" extends to not only setback requirements, but to any matter with regards to physical requirements on a lot.

It is unclear whether changing the name from "variance" to "modification" will have any substantive impact. What is clear is that the test for granting a modification still requires the identical showing of "undue hardship". If a party obtains a "modification" which is later challenged, it is possible they will face the same level of scrutiny now as they did under the old variance statute.

The number of projects generating objections with appeals is difficult to predict. It is also difficult to predict exactly what substantive impact the legislative changes will bring. My personal prediction is that variances will be difficult, if not impossible, to obtain until the statute is modified more radically. I would also anticipate that any project where you actually obtain a variance may have exposure to legal challenges and litigation. The best practice is to avoid these entanglements during the design process and advise your clients to avoid applying for a variance if at all possible.