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The Death of Variances?

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

A recent set of three decisions relating to actions by Boards of Zoning Appeals (BZAs) from the Supreme Court of Virginia may translate to significant changes in the granting of variances from local zoning ordinances. The cases reassert the need to demonstrate a constitutional taking level of impact to property to support the granting of a variance. The three cases are Cochran v. Fairfax BZA (Record No. 030982), MacNeal v. Town of Pulaski BZA (Record No. 031770), and BZA of the City of Virginia Beach v. Pennington (Record No. 031771). In each of the three cases, the Supreme Court found that the BZA did not have the authority to grant the variance in question.

The Cochran Case

In Cochran, the property’s zoning permitted two dwelling units per acre with side yard setbacks at least 15 feet from the property line. The proposed structure would come within 13 feet of the property line and the home’s chimneys would extend further into the set back.

The record indicated that the home as designed could be shifted slightly and built without a variance, but such design would bar use of a side-loading garage instead of a front-loading garage. If the home were built in the proposed location but without the extension into the setback, the home would lose 152 square feet of living space. Other areas of the site permitted an additional 152 square feet of construction within compliance with the zoning ordinance.

Over the objections of neighbors, the local BZA granted a variance finding the topographical conditions of the site presented a hardship and that the requests were modest. The neighbors appealed to circuit court and lost. The neighbors then appealed to the Supreme Court of Virginia.

The Pulaski Case

The owners owned a two-thirds acre parcel bounded on two sides by a road. The property was zoned with a side set back for both main and accessory structures of fifteen feet. The owners petitioned for a variance to zero feet to permit construction of a garage on one corner of the lot.

The topography of the lot was difficult. Construction of a garage closer to the house would require construction of a ramp adding considerable costs to construction and damaging or destroying an existing retaining wall. The neighbors objected, saying that building the garage on the corner would create a blind area for traffic and an eyesore.

After multiple meetings, the BZA granted a modified variance to a five foot set back from one property line and a fifteen foot setback from the other. A neighbor appealed to circuit court and lost. The neighbor then appealed to the Supreme Court of Virginia.

The Virginia Beach Case

The owner owned a 1.25 acre parcel with a home and a 528 square foot detached garage. The zoning ordinance limited accessory structures to 500 square feet. The owner petitioned for a variance to allow 816 square feet of accessory structures so they could build a storage shed next to the garage and to bring the original garage into conformance.

The zoning ordinance permitted four dwelling units per acre. The owner argued that the large size of the lot, the permission for four units per acre, and the fact the shed would be virtually invisible from the street warranted a variance.

The city’s zoning administrator opposed the request, except to the extent of brining the original garage into conformance. The owners appealed to Circuit Court. The owners presented evidence of “hardship” relating to the illness and disability of the owner. The Circuit Court overruled the BZA and granted the variance. The BZA then appealed to the Supreme Court of Virginia.

The Supreme Court Ruling

The Supreme Court stated that local BZAs had authority to grant variances only to avoid an unconstitutional result. Standards enacted 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 question all retained substantial beneficial uses and value. The Supreme Court vacated the variances in the Cochran and Pulaski cases and reinstated the original BZA resolution in the Virginia Beach case.

The decision departs markedly from recent practices of many BZAs which had permitted variances more frequently. To meet the standards of these cases, one must basically demonstrate a constitutional taking absent the variance. This is an extremely high burden of proof.

The number of projects generating objections with appeals is difficult to predict. What is clear, however, is that any variance granted absent a constitutional level of impact is arguably subject to challenge. In Northern Virginia, available land is more and more scarce. Limitations on the use of variances make in-fill development even more difficult and potentially financially infeasible. Design professionals, contractors, owners and developers need to take this case very seriously or run the risk of legal challenges to their developments.