Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Russell, S.J.
CHERRYSTONE INLET, LLC OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 051699 April 21, 2006
BOARD OF ZONING APPEALS OF NORTHAMPTON COUNTY, ET AL.
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
This appeal presents the question whether a Board of
Zoning Appeals properly denied variances, sought by a property
owner, where overlapping setback lines imposed by the zoning
ordinance precluded the erection of any residential structures
on property located in a residential district.
Facts and Proceedings
The essential facts are undisputed. By deed dated
January 9, 2004, Cherrystone Inlet, LLC, (Cherrystone)
acquired from the Bromley estate several parcels of land in
Northampton County in the vicinity of Cherrystone Inlet, parts
of which extended to the low water mark of the inlet. The
parcels were conveyed by metes and bounds. Five parcels
constitute the tract in issue here, a narrow strip containing
6.594 acres of unimproved land bounded on the west by the
waters of Cherrystone Inlet (which runs north-south at this
point) and on the east by State Route 663 (Cherrystone Road),
a public road that runs parallel to the inlet. Although the
parcels were conveyed by metes and bounds, the evidence
indicated that they were shown on the tax maps as individual
lots (the Bromley lots).1
When Cherrystone acquired the property, it was aware that
the Bromley lots were zoned “Rural Village-Rural Residential”
(RV-RR), a restrictive residential classification in the
Northampton County zoning ordinance. Cherrystone was also
aware that no residences could be built upon the lots unless
variances could be obtained, because they were subject to
zoning setback requirements that rendered them “unbuildable.”
In 1988, the General Assembly adopted the Chesapeake Bay
Preservation Act, Code § 10.1-2100, et seq. (The Bay Act).
Pursuant to its provisions, the subject property was included
within a “Chesapeake Bay Preservation Area” which subjected it
to certain criteria and regulations for the protection of
water quality promulgated by the Chesapeake Bay Local
Assistance Board. The Board of Supervisors of Northampton
1
Counsel for Cherrystone stated in argument at the bar of
this Court that the Bromley estate, Cherrystone’s predecessor
in title, had never subdivided the land in question. The
record fails to disclose the chain of title to these lots, and
shows no reason for their designation as individual lots on
the tax maps. The record before the BZA contains a "Boundary
Survey" of the Bromley property, dated December 9, 2003,
before Cherrystone's purchase. It shows the property divided
into five parcels, ranging in size from 0.302 acre up to 2.301
acres, identified only by tax map references. Those parcels
bear no discernable relationship to the lots for which
variances were sought.
2
County, as required by the Bay Act, incorporated those
regulations into its zoning ordinance, effective December 28,
2000. The applicable part of the zoning ordinance imposed a
building setback upon the Bromley lots 110 feet landward from
the shoreline of Cherrystone Inlet.2 The zoning ordinance also
imposed a setback of 60 feet from Cherrystone Road. Because
the distance from the shoreline to the road was much less than
170 feet on most of the Bromley Lots, the setbacks overlapped,
precluding the construction of residential buildings.3
Four days after purchasing the Bromley lots in 2004,
Cherrystone recorded a plat purporting to subdivide the five
Bromley lots into six smaller lots. After receiving
objections from the County staff, Cherrystone, on June 30,
2004, recorded a second plat, captioned “Boundary Line
Adjustment Plat” resubdividing the property into five new
2
Regulations promulgated under the Bay Act establish a
100-foot “buffer area” extending landward from the shoreline,
which overlaps the 110-foot setback imposed by the zoning
ordinance. Variances are authorized for intrusions under very
restricted circumstances, but only within the landward 50 feet
of the “buffer area” and only upon lots recorded prior to
October 1, 1989.
3
Evidence in the record indicated that the Bromley lots,
many years ago, might have had sufficient depth to permit
residential construction even under the present zoning
ordinance, but that beach erosion had severely narrowed them
before Cherrystone acquired them in 2004 and that in recent
years, high water had extended up to and over the Cherrystone
Road, entirely covering the Bromley lots.
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lots. Although the shallowness of the lots remained the same,
being limited by the distance between the road and the
shoreline, the side lines between the lots were substantially
different from those of the former Bromley lots.
Only lot 1, of Cherrystone’s new lots, had sufficient
depth to permit residential construction. Cherrystone applied
to the Zoning Administrator for variances from both the
shoreline setback and the road setback, as well as from the
Bay Act buffer area regulations, for new lots 2, 3, 4 and 5.
The Zoning Administrator denied the applications and
Cherrystone appealed its decision to the Northampton County
Board of Zoning Appeals (BZA). After receiving reports from
the County’s staff, the BZA held a public hearing on August 2,
2004 at which the variances were unanimously denied.
Cherrystone brought the case before the circuit court by
a petition for certiorari. The Board of Supervisors of
Northampton County filed a petition to intervene, which the
court granted. The circuit court heard the case upon the
arguments of counsel, the record of the proceedings before the
BZA and additional evidence taken ore tenus. The court found
that Cherrystone had failed to rebut the presumption of
correctness to which the decision of the BZA was entitled.
The court entered an order affirming the BZA’s decision to
deny the variances. We awarded Cherrystone an appeal.
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Analysis
Cherrystone contends that the evidence before the circuit
court was that residential construction was the only
reasonable, beneficial use of the lots, taken as a whole, and
that the overlapping setbacks imposed by the Bay Act and the
zoning ordinance unreasonably interfered with that use. On
appeal, Cherrystone argues that it was entitled to variances
upon any of three alternative theories based on the language
of Code § 15.2-2309(2): "[B]y reason of the exceptional . . .
shallowness [of the lots] at the time of the effective date of
the ordinance," or "by reason of . . . other extraordinary
situation or condition of the piece of property" or to
"alleviate a clearly demonstrable hardship approaching
confiscation." The record indicates, however, that the only
basis for relief urged by Cherrystone before the BZA and in
the circuit court was the impact of the zoning ordinance
occasioned by the shallowness of the lots. That basis for
relief is conditioned upon the statutory requirement that the
ordinance must have affected lots in existence on the
effective date of the ordinance.
The BZA and the Board of Supervisors argue that
Cherrystone’s new lots did not exist when the Bay Act and the
zoning ordinances became effective, but were created
thereafter, that the deviations sought are unreasonable and
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not within the spirit of the ordinance, and that Cherrystone
did not carry its burden of showing that the setbacks
prevented all reasonable beneficial uses of the property.
Upon judicial review of a decision of a board of zoning
appeals granting or denying a variance, the board's decision
is presumed to be correct. The circuit court's review is
limited to a determination whether the board has applied
erroneous principles of law or, when the board's discretion is
involved, whether the decision is plainly wrong and in
violation of the purpose and intent of the zoning ordinance.
Spence v. Board of Zoning Appeals, 255 Va. 116, 119-20, 496
S.E.2d 61, 63 (1998) (citations omitted). In proceedings on
certiorari in the circuit court, as well as on appeal to this
Court, the burden is upon the appealing party to rebut the
presumption of correctness to which the board's decision is
entitled. Code § 15.2-2314; Masterson v. Board of Zoning
Appeals, 233 Va. 37, 44, 353 S.E.2d 727, 732-33 (1987).
Here, the applicant failed to show that the lots for
which variances were sought were lots of record in 1988, when
the Bay Act became effective. Because of the express language
of the Bay Act and Code § 15.2-2309(2), that failure alone
would have precluded variances based upon the shallowness of
the lots.
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Further, the applicant was unable to show that the effect
of the zoning ordinance upon its property would, in the
absence of the variances sought, "interfere with all
reasonable beneficial uses of the property, taken as a whole."
In the absence of such a showing, the BZA had no authority to
grant variances. Cochran v. Board of Zoning Appeals, 267 Va.
756, 766, 594 S.E.2d 571, 577 (2004). Without considering
other uses which the zoning ordinance might permit, it is
evident that Cherrystone, rather than subdividing its land
into lots, four of which are "unbuildable," could have treated
the property as a single 6.594-acre parcel. A residential
structure could have been erected, as a matter of right, on
that part of the parcel now included in Cherrystone's new Lot
1, which is unaffected by overlapping setbacks, with the
remaining land used as a valuable waterfront amenity
appurtenant to that structure.
Conclusion
Because the lots for which the variances were sought did
not exist of record on the effective dates of the Bay Act and
the zoning ordinance, and because the effect of the zoning
ordinance did not interfere with all reasonable beneficial
uses of the property, taken as a whole, the circuit court
correctly affirmed the decision of the BZA. Accordingly, we
will affirm the judgment.
7
Affirmed.
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