Cochran v. Fairfax Cty. Bd. of Zoning Appeals

267 Va. 756, 594 S.E.2d 571 (2004)



The statutory terms "effectively prohibit or unreasonably restrict the utilization of the property," "unnecessary hardship" and "undue hardship" are construed to mean that a board of zoning appeals has no authority to grant a variance unless the effect of the zoning ordinance, as applied to the piece of property under consideration, would, in the absence of a variance, interfere with all reasonable beneficial uses of the property, taken as a whole.


These three cases involve a common question on whether the homeowners were properly awarded variances. The first is the case of Mr. Bratti who applied for a variance on the zoning ordinance requiring properties to be back 15 feet, since he wanted to demolish his present house to create a bigger one with a garage. The BZA granted the variance on the ground that the request were modest ones and in lieu of the unusual topographical considerations of the land. The other involves the Nunleys. They requested variance from the ordinance required property to be back 15 feet so they could create a garage for their house. They explained that the request provided the easiest access to the street since the topography of the lot was difficult. The neighbours objected since the garage would be so close to the street and would create a blind area. The BZA nonetheless granted with a condition that construction should not be closer than 15 feet from the eastern projected boundary of the property and that the construction would not alter the alter the aesthetic look and vegetation of the borders. Finally the Penningtons who applied for a variance of 816 square feet for a storage shed despite zoning ordinance accessory structures not to exceed 500 sq. ft. of floor area or 20% of the principal structure, whichever is greater. The Penningtons explained that the shed was to be used as storage for the things of Mr. Pennigton’s daughter who was moving back home to take care of him because of his illness. The variance was granted based on the hardship requirement.


Were the variances awarded to the homeowners proper?




The appellate court held that notwithstanding the presumption of correctness to which BZA decisions were entitled, each of the cases failed to meet the standard prescribed in Va. Code Ann. § 15.2-2309(2) regulating the BZAs' authority to grant variances. While compelling reasons were presented for each variance application, including the desires of the owners, supported by careful planning to minimize harmful effects to neighboring properties, probable aesthetic improvements to the neighborhood as a whole, together with a probable increase in the local tax base, greatly increased expense to the owners if the plans were reconfigured to meet the requirements of the zoning ordinances, lack of opposition, or even support of the application by neighbors, and serious personal need, by the owners, for the proposed modification, they were immaterial as the BZAs had no authority to act. The threshold question was whether the zoning ordinance interfered with all reasonable beneficial uses of the property, taken as a whole. As the answer was "no," the BZAs had no authority to act.

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