The Supreme Court of Virginia recently clarified the legal standard that the Board of Zoning Appeals (BZA) must apply when reviewing variance applications. The court summarized the standard as follows:
“The threshold question for the BZA in considering an application for variance as well as for a court reviewing its decision, is whether the effect of the zoning ordinance upon the property under consideration, as it stands, interferes will ‘all reasonable beneficial uses of the property, taken as a whole.’ If the answer is in the negative, the BZA has no authority to go further.” Cochran v. Fairfax County Bd. of Zoning Appeals, 267 Va. 765 (2004)
The BZA can grant a variance only if the applicant demonstrates that the zoning ordinance interferes with all reasonable beneficial uses of the property. The applicant should be aware of this, as the application fee cannot be refunded once a case has been advertised, regardless of the board’s decision.
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VARIANCES AND CONDITIONAL USE PERMITS
A variance is an approval of the size of a lot, or the size or location of a structure, that does not meet the requirements of the zoning ordinance. The Board of Zoning Appeals (BZA), a body of five citizens appointed by the Circuit Court, may grant a variance if they find that, because of some unusual characteristic of the property, a strict application of the zoning ordinance would result in a hardship so severe that it was almost the same as taking the property.
Before a variance can be granted, the applicant (usually the owner of the property) must show the zoning regulations “actually prohibit or unreasonably restrict” the use of the property, or that there is a “hardship approaching confiscation.” In other words, it must be impossible or unreasonable to use the property without the variance. Mere convenience, or a desire to maximize profit, does not justify a variance. If the applicant caused the hardship, the hardship is considered “self-imposed,” and a variance is not justified.
The Supreme Court of Virginia has determined that “[t]he threshold question for the BZA in considering an application for variance as well as for a court reviewing its decision, is whether the effect of the zoning ordinance upon the property under consideration, as it stands, interferes will ‘all reasonable beneficial uses of the property, taken as a whole.’ If the answer is in the negative, the BZA has no authority to go further.” The board has no authority to grant a variance where the owner is able to make reasonable beneficial use of the property without it. The BZA can grant a variance only if the applicant demonstrates that the zoning ordinance interferes with all reasonable beneficial uses of the property.
If the board finds evidence of a hardship approaching confiscation, it must consider three other factors. There must be some exceptional condition of size, shape or topography; the variance must not cause substantial detriment to adjacent property; and the circumstances must not be shared generally by other properties in the vicinity.
For each zoning district, the Zoning Ordinance lists certain uses that are allowed by right, and other uses that may be allowed under a conditional use permit. The Board of Zoning Appeals has the discretion to allow the use or not, depending on the location and other factors. If it allows the use, the Board has the discretion to impose conditions on the permit to protect the public health, safety and welfare.
In deciding whether to grant a conditional use permit, the Board of Zoning Appeals considers the following factors:
. . . use will not adversely affect the health, safety or welfare of persons residing or working on the premises or in the neighborhood, will not unreasonably impair an adequate supply of light and air to adjacent property, nor increase congestion in the streets, nor increase public danger from fire or otherwise unreasonable affect public safety, nor impair the character of the district or adjacent districts, nor be incompatible with the general plans and objectives of the official land use plan of the county, nor be likely to reduce or impair the value of buildings or property in surrounding areas . . . Zoning Ordinance 24-116(c)
In deciding what conditions to impose on a permit, the Board of Zoning Appeals considers the following factors:
In those instances where the board finds that the proposed use may be likely to have an adverse effect as above, the board shall determine whether such effect can be avoided by the imposition of any special requirements or conditions with respect to location, design, construction, equipment, maintenance or operation in addition to those expressly stipulated in this chapter for the particular class of use. . . . Zoning Ordinance 24-116(c)
An appeal to the Board of Zoning Appeals may be taken by any person aggrieved by any decision of the Director of Planning (or by any officer, department, board or bureau of the county). The appeal must be filed within 30 days after the entry of the decision appealed. (County Code, 24-117(b))
An appeal stays all proceedings in the furtherance of the action appealed from, unless the Director of Planning certifies to the BZA after the notice of appeal has been filed that staying the proceedings would cause imminent peril to life or property. (County Code, 24-117(b))
At the hearing, any party may appear in person or by agent or by attorney. The BZA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed. The concurring vote of three members of the Board shall be necessary to reverse any order, requirement, decision or determination. (County Code, 24-117(c))
All variance, appeal or conditional use permit requests must be filed on the official form. Applications are processed according to a schedule of deadlines and public hearing dates, which is published each year. The County is required to advertise applications in the Richmond Times-Dispatch and mail notices to the owners of all adjoining property.
The fee covers a portion of the cost of advertising, researching, reviewing and processing the application. If an application is withdrawn before the advertisement is prepared, the County may refund part of the fee. After the advertisement has been prepared, the fee cannot be refunded.
The applicant or a representative is required to attend the public hearing. At the hearing anyone may speak in favor of, or in opposition to, any application. Written comments may also be submitted. The Board decides most cases the day of the hearing.