Citation. 594 S.E.2d 571.
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Brief Fact Summary.
The court analyzed a zoning decisions made in three different cities concerning application for variances from local zoning ordinances.
Synopsis of Rule of Law.
A variance should only be granted if the current zoning ordinance interferes with all reasonable beneficial uses of the property taken as a whole
Fairfax: A man named Michael R. Bratti applied for four variances from local zoning. He wanted to demolish his house and create a bigger house with a side garage. There was a zoning ordinance requiring all properties to be back 15 feet. He conceded that the project could be done without violating zoning but it would not be the ideal house he wanted and cut down on square feet of living space. The Board of Zoning Appeals (BZA) granted all four variances stating his request were modest ones and his land had unusual topographical considerations.
Pulaski: Mr. and Mrs. Nunley owned a corner lot in the Town of Pulaski. There was a zoning ordinance for corner lots that required property to be back 15 feet from the road. The Nunleys requested an ordinance to have no set back so that they could create a garage on the side of there house. The house had public streets on three sides of the house. The only way they could construct the garage closer to the house would be to construct a ramp due to curving property line and difficult topography of the land. Also there is a stone retaining wall behind the house that would be weakened or destroyed if the garage was built closer. Neighbors objected because it would be a blind area and create an eyesore. The BZA granted a modified variance that required them to not altering or destroy the aesthetic looks of existing vegetation.
Virginia Beach: Mr. and Mrs. Pennington owned a parcel of land in a subdivision know as Avalon Terrace in the City of Virginia Beach. There is a zoning ordinance that requires all accessory structures to not exceed 500 square feet of floor area or 20 percent of the floor area of the principle structure, which ever is greater. They applied for a variance of 816 feet for a storage shed and also to make their existing garage be in conformity with zoning. First the BZA denied the variance for the storage shed by allowed the garage to be compliant. They then filed a petition stating that Mr. Pennington was ill and his daughter was moving back home to take care of him and the shed was to store her things. The court found they now met the hardship requirement and granted the variance.
Whether the granting of zoning variances should be granted on a case by case basis even if the property still has beneficial use without such variance.
There is particular standard in allowing zoning variances. Until property has lost its value due to zoning such variances should not be allowed. It seems reasonable that considerations of harm to the community, aesthesis, tax base, lack of opposition, support of such variance, and serious personal needs should be considered. However zoning boards do not have such authority to do so. The only way a zoning variance can be granted is if that zoning bylaw makes all reasonable beneficial use lost on that property. Which each case the project on each property could still be completed without the variance, or the land could be used for other reasonable beneficial uses. This is because zoning is a valid exercise of police power. It is understood that zoning can not be tailored to each parcel in a particular town. Therefore there is usually one particular zoning structure. If zoning renders a particular property useless it is unconstitutional. In order to prevent unconstitutional zoning, zoning boards are allowed to grant variances to protect our property rights.
Some states allow zoning boards to allow variances in cases of undue hardship. This court finds that in Virginia, undue hardship occurs when the zoning reasonably restricts the utilization of the property.