Cochran v. Fairfax County Board of Zoning Appeals

Citations: 267 Va. 756; 594 S.E.2d 571; 2004 Va. LEXIS 57Docket: Record 030982; Record 031770; Record 031771

Court: Supreme Court of Virginia; April 23, 2004; Virginia; State Supreme Court

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The excerpt details three cases involving local boards of zoning appeals (BZA) concerning applications for variances from local zoning ordinances. Despite differing facts and proceedings in each case, they are analyzed collectively due to shared legal principles.

In the Fairfax County case, Michael R. Bratti owned a 20,470 square foot residential property zoned R-2, which allowed for two dwelling units per acre. His existing home complied with side yard setback requirements. Bratti sought four variances to demolish his house and build a larger one, which would encroach within 13 feet of the property line instead of the required 15 feet, further compounded by three exterior chimneys extending into the setback.

Bratti's proposed house was significantly larger, measuring 71 feet wide and 76 feet deep. Although it could be built without a variance by shifting the structure two feet south, he insisted on the variances to accommodate a side-load garage, claiming a front-load configuration would lack curb appeal. He also noted that conforming to the zoning ordinance would result in a loss of 152 square feet of living space, which could instead be built in two level areas on the property. However, Bratti preferred to reserve these areas for children's play and outdoor space. He acknowledged that he could add a third story without needing a variance, which would compensate for the lost space, but he deemed it aesthetically undesirable as it would create a "towering structure" from the street view.

The Board of Zoning Appeals (BZA) approved four variances for an applicant despite opposition from several neighbors, citing severe topographical challenges and the modest nature of the requests. The BZA concluded that strict adherence to the Zoning Ordinance would cause practical difficulties or unnecessary hardship for the applicant. In response, objecting neighbors and the Board of Supervisors of Fairfax County sought certiorari in circuit court. The court upheld the BZA's decision, dismissing the certiorari petition, leading to an appeal by the neighbors and the Board of Supervisors.

In the Pulaski case, Jack D. Nunley and Diana M. Nunley applied to the BZA for a variance to allow a garage to be constructed at the northeast corner of their corner lot, which faced multiple public streets. The lot's zoning required a 15-foot setback, but the Nunleys sought a zero-foot setback due to difficult topography and the impracticality of building closer to the house without incurring significant costs or damaging a stone retaining wall. Neighbors raised concerns about traffic safety and the aesthetic impact of the proposed garage. After deliberations, the BZA granted a modified variance, allowing the garage with specific setbacks and limitations to preserve existing vegetation. Neighbor Virginia C. MacNeal challenged this decision in circuit court, which affirmed the BZA's ruling, prompting MacNeal to appeal.

Jack and Rebecca Pennington owned a 1.25-acre property in Virginia Beach's Avalon Terrace, featuring their home and a detached garage built in 1972. The property was zoned R-10, which allowed four dwelling units per acre and limited accessory structures to a maximum of 500 square feet. The Penningtons sought a variance from the Board of Zoning Appeals (BZA) to allow a total of 816 square feet for accessory structures, including a new 12 by 24-foot storage shed and to conform the existing garage that exceeded the limit by 28 square feet. They argued that their large lot made the shed nearly invisible from the street and posed no impact on neighbors, who supported their request.

The city’s zoning administrator opposed the variance, asserting that the shed could be built as an addition to their home, although they did not object to the variance for the garage's conformity. The BZA granted the variance for the garage but denied the shed request, citing a lack of "hardship." Subsequently, the Penningtons petitioned the circuit court, introducing a new claim of hardship related to Mr. Pennington's serious illness and the need for storage due to his daughter moving back to help care for him. The court recognized the hardship, overturned the BZA's decision, and granted the variance for the shed, prompting the BZA to appeal. The analysis noted that zoning is a legitimate exercise of the police power, requiring uniform regulation across districts.

Zoning ordinances, while valid on their face, can render a specific parcel of land effectively useless, potentially violating Article 1, § 11 of the Virginia Constitution when applied to individual landowners. A variance serves as a necessary mechanism to protect landowners' rights against unconstitutional applications of these ordinances without undermining their overall validity. The Virginia General Assembly has established that variances should only be granted in situations where the zoning restrictions impose an unconstitutional hardship. The Board of Zoning Appeals (BZA) has the authority to grant variances solely to prevent such unconstitutional outcomes, acting in an administrative capacity and adhering to the standards set by the legislative branch to maintain the rule of law. Code § 15.2-2309(2) outlines the BZA’s powers, allowing for variances when strict application of zoning ordinances results in unnecessary hardship due to exceptional conditions of the property, distinguishing these from mere special privileges sought by the applicant.

A variance from the zoning ordinance can only be granted by the Board of Zoning Appeals (BZA) if it determines that strict application of the ordinance results in undue hardship. The BZA lacks authority to grant a variance unless the zoning ordinance, as applied, significantly interferes with all reasonable beneficial uses of the property. In the cases presented, the proposed changes to properties in Fairfax, Pulaski, and Virginia Beach did not meet this standard, as each property retained substantial beneficial uses and value without a variance. Alternatives, such as reconfiguring or abandoning the projects, were available, which would avoid the need for variances.

Compelling reasons presented in favor of the variance applications—such as owner desires, planning efforts to minimize neighborhood impacts, aesthetic benefits, increased local tax revenue, and lack of opposition—are relevant only if the BZA has the authority to act, which it did not in these instances. The critical question for the BZA and for any reviewing court is whether the zoning ordinance interferes with all reasonable beneficial uses of the property. Since the answer was negative for all cases, the judgments of the circuit courts are reversed, the BZA resolutions for Fairfax and Pulaski are vacated, the Virginia Beach BZA resolution is reinstated, and final judgments are entered accordingly.