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Not only must an applicant for a variance show the existence of at least one of several special conditions which would cause compliance with a zoning ordinance to result in an unnecessary hardship, but the board of zoning appeals (BZA) must find that three enumerated tests are satisfied. Specifically, the BZA must find: (1) that the strict application of the ordinance would produce undue hardship; (2) that such hardship is not shared generally by other properties in the same zone and the same vicinity and is not created by the owner of such property; (3) that the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the zone will not be changed by the granting of the variance. Alexandria, Va., Charter § 9.18(b).
James and Christine Garner’s property was subject to an ordinance that required the Old and Historic Alexandria District Board of Architectural Review (BAR) to approve any proposed construction or alteration of buildings. The BAR approved the owner's application for a certificate of appropriateness for side and rear yard variances. Over the neighbors' objection, the city board of zoning appeals (BZA) approved the Garners' variance application. The Circuit Court of the City of Alexandria, Virginia, affirmed the BZA's decision. The neighbors sought further review.
Under the circumstances, should the Garners’ variance application be granted?
The high court held that the city's zoning ordinance applied to new buildings such as the one belonging to the Garners. That the Garners’ lot was relatively shallower than neighboring lots was not a basis for granting the variances, because one-third of the properties in the neighborhood were even shallower. That the Garners' property was subject to both the city's general zoning ordinance and its historic preservation ordinance was not a unique hardship justifying the variances, because this situation was shared by every other property holder in the same zone. As none of the conditions asserted by the Garners to justify their application for a variance satisfied the requirements of the city charter, the BZA's decision was contrary to law.