Cochran v. Fairfax County Board of Zoning Appeals

Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons and
Agee, JJ., and Russell, S.J.

DONALD H. COCHRAN, ET AL.
OPINION BY
v. Record No. 030982 SENIOR JUSTICE CHARLES S. RUSSELL
April 23, 2004
FAIRFAX COUNTY BOARD OF
ZONING APPEALS, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

VIRGINIA C. MacNEAL

v. Record No. 031770

TOWN OF PULASKI BOARD OF
ZONING APPEALS, ET AL.

FROM THE CIRCUIT COURT OF PULASKI COUNTY
Robert M. D. Turk, Judge

BOARD OF ZONING APPEALS OF
THE CITY OF VIRGINIA BEACH

v. Record No. 031771

JACK PENNINGTON, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge1

These three cases involve decisions by local boards of

zoning appeals (collectively and individually, BZA) upon

applications for variances from the local zoning ordinances.

Although the facts and proceedings differ in each case, and

1
The record indicates that although Judge Rosenblatt
entered the final order, the case was heard and decided by the
Honorable Frederick B. Lowe.
will be discussed separately, the governing principles of law

are the same. We therefore consider and decide the cases in a

single opinion.

THE FAIRFAX CASE

Michael R. Bratti was the owner of a tract of land

containing approximately 20,470 square feet, in the McLean

area of Fairfax County. The property was zoned R-2, a

residential classification permitting two dwelling units per

acre, and was improved by a home in which Bratti had resided

for eight years. The zoning ordinance required side yard

setbacks of at least 15 feet from the property lines.

Bratti's existing home fit well within the setbacks.

Bratti filed an application with the BZA for four

variances. He proposed to demolish his existing home and

erect a much larger house on the site. The proposed structure

would come within 13 feet of the northerly property line,

rather than the 15 feet required by the ordinance, and would

be further extended into the setback area by three exterior

chimneys which would extend beyond the northerly wall of the

house. The proposed house would be 71 feet wide and 76 feet

from front to back. The proposed encroachment into the side

yard setback would extend the entire 76 foot depth of the

house.

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 It was undisputed that Bratti's proposed house could be

built upon the existing lot without any need for a variance by

simply moving it two feet to the south, plus the additional

distance required by the chimneys. Bratti explained to the

Board, however, that he desired to have a "side-load" garage

on the south side of his house and that a reduction of two

feet of open space on the south side would make it

inconvenient for vehicles to turn into the garage. The

present house had a "front-load" garage which opened directly

toward the street. When it was pointed out to Bratti that he

could avoid this problem by reconfiguring his proposed house

to contain a "front-load" garage, he responded that such a

house would have less "curb appeal" than the design he

proposed.

If the house were built in its proposed location, but

reduced in size by two feet to comply with the zoning

ordinance, there would be a resulting loss of 152 square feet

of living space. The topography of the lot was such that it

rose 42 feet vertically throughout its 198-foot depth from the

street to the rear property line. However, there were two

relatively level areas shown on the plans for the proposed

dwelling, one in front of the house and one in the rear. It

was conceded that an additional 152 square feet of living

space could have been constructed in either of these areas,

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but Bratti explained that he wanted to use the level area in

front of the house as a play area for children and for

additional parking, and that he was unwilling to encroach upon

the level area in the rear because he desired to use it as a

large outdoor courtyard which he said was "the central idea in

the house."

The proposed dwelling had two stories. A third story

could have been added as a matter of right, without variances.

Bratti conceded that this could easily be done and would more

than accommodate the 152 square feet lost by compliance with

the zoning ordinance, but that it would be aesthetically

undesirable, causing the house to appear to be a "towering

structure" as seen from the street.

Over the opposition of a number of neighbors, the BZA

granted all four variances. The BZA made findings of fact,

including the following: "3. The lot suffers from severe

topographical conditions which the applicant has worked hard

to accommodate. . . . 5. The requests are modest." This was

followed by a conclusion of law:

THAT the applicant has satisfied the Board that
physical conditions as listed above exist which
under a strict interpretation of the Zoning
Ordinance would result in practical difficulty or
unnecessary hardship that would deprive the user of
all reasonable use of the land and/or buildings
involved.

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 The objecting neighbors petitioned the circuit court for

certiorari. The Board of Supervisors of Fairfax County

obtained leave of court to enter the case as an additional

petitioner, opposing the variances. The court, after a

hearing, affirmed the decision of the BZA and entered an order

dismissing the petition for writ of certiorari. The objecting

neighbors and the Board of Supervisors brought this appeal.

THE PULASKI CASE

Jack D. Nunley and Diana M. Nunley owned a corner lot in

the Town of Pulaski that contained .6248 acre. The lot was

bounded by public streets on three sides. A street 40 feet

wide ran along the front of the property and the intersection

of that street with a street approximately 30 feet wide formed

the southeastern corner of the lot. The 30-foot street ran

northward from the intersection, forming the eastern boundary

of the lot, and then curved to the west to form the lot's

northern boundary. The curvature was gradual, having a radius

of 34.53 feet. This curve formed the northeasterly corner of

the lot.

The property was zoned R-1, a residential classification

which contained a special provision relating to corner lots:

The side yard on the side facing the side street
shall be at least 15 feet from both main and
accessory structures.

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Town of Pulaski, Va., Zoning Ordinance, art. IV § 2.6.2
(2002).

The Nunleys petitioned the BZA for a variance from the

required 15-foot set back to zero feet, in order to construct

a garage at the northeast corner of the lot, the northeast

corner of which would be placed tangent to the curving

property line. There was no existing garage on the property,

and the Nunleys explained that placing a garage in this

location would provide the easiest access to the street. The

topography of the lot was difficult, the curve along the 30-

foot street lying at a considerable elevation above the floor

level of the existing house. The garage could be constructed

closer to the house without the need for a variance, but this

would require construction of a ramp that would add

considerably to the expense of the project. Also, the Nunleys

explained, there was a stone retaining wall, five feet in

height, behind the house that would be weakened or destroyed

if the garage were to be built closer to the house.

Neighbors objected, pointing out to the BZA that the

construction of the garage so close to the corner would create

a blind area that would be dangerous for traffic coming around

the curve on the 30-foot street. They also complained that it

would be an "eyesore" and would destroy existing vegetation.

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 The BZA had some difficulty with the question whether the

Nunleys' request involved a "hardship" as required by law.

The BZA held four meetings to discuss the question and

obtained an opinion from the town attorney. The BZA

eventually granted the Nunleys a modified variance, permitting

an accessory structure no closer than five feet from the

northern projected boundary and no closer than 15 feet from

the eastern projected boundary of the property. The modified

variance also provided that construction should not "alter or

destroy the aesthetic looks of existing vegetation bordering

the northern projected boundary" of the property.

Virginia C. MacNeal, a neighbor who had objected to the

variance before the BZA, filed a petition for certiorari in

the circuit court. The court, in a letter opinion, affirmed

the decision of the BZA and denied the petition for

certiorari. Virginia C. MacNeal brought this appeal.

THE VIRGINIA BEACH CASE

Jack and Rebecca Pennington owned a 1.25-acre parcel of

land in a subdivision known as Avalon Terrace, in the City of

Virginia Beach. The property was improved by their home, in

which they had lived for many years, and a detached garage

containing 528 square feet which they had built in 1972. The

property was zoned R-10, a single-family residential

classification permitting four dwelling units per acre. The

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ordinance contained a limitation on "accessory structures" by

requiring that they "do not exceed five hundred (500) square

feet of floor area or twenty (20) percent of the floor area of

the principal structure, whichever is greater." The size of

the Penningtons' home was such that the 500 square-foot

limitation applied to their property.

The Penningtons applied to the BZA for a variance

permitting accessory structures containing a total of 816

square feet, in lieu of the 500-square foot limitation. They

explained that the purpose of the request was to permit the

construction of a storage shed, 12 by 24 feet, adjacent to the

garage, and also to bring into conformity the 28 square feet

by which the existing garage exceeded the limitation imposed

by the zoning ordinance.

The Penningtons could have built the storage shed as an

appendage or as an addition to the existing house without the

need for any variance, but their representative explained to

the BZA that their lot was so large that the shed would be

nearly invisible from the street and would have no impact upon

neighboring properties. He contended that the obvious purpose

of the size limitation on accessory structures, as contained

in the ordinance, was to inhibit the erection of large,

unsightly outbuildings on small lots. He pointed out that the

Penningtons' lot was so large that four dwelling sites could

8
be carved out of it, and that therefore the impact of a small

additional outbuilding would be minimal and would not

contravene the spirit of the zoning ordinance. He also

pointed out that a number of the neighbors were related to the

Penningtons and that no neighbors had any objection to their

request.

The zoning administrator of the City of Virginia Beach

opposed the request, pointing out that there was no need for a

variance because the desired storage shed could be built as an

appurtenance to the existing house. The zoning administrator

had no objection to a variance to the extent of the 28 square

feet needed to bring the existing garage into conformity with

the zoning ordinance. The BZA granted the variance to bring

the garage into conformity, but denied the remainder of the

Penningtons' request on the ground that no "hardship" existed.

The Penningtons filed a petition for certiorari in the

circuit court. At a hearing on the petition, counsel for the

Penningtons asserted a claim of hardship that had not been

presented to the BZA: Mr. Pennington was seriously ill and

disabled. His wife had full-time employment, was the "bread-

winner" of the family and was therefore unable to care for him

during the day. The Penningtons' daughter, who had recently

graduated from college, had returned to live with the

Penningtons and assist in the care of her father. The storage

9
shed was needed as a place to store her belongings. The court

ruled that a hardship existed, overruled the decision of the

BZA and granted the Penningtons' requested variance. The BZA

brought this appeal.

ANALYSIS

Zoning is a valid exercise of the police power of the

Commonwealth. West Brothers Brick Co. v. Alexandria, 169 Va.

271, 281, 192 S.E. 881, 885 (1937). Zoning ordinances, of

necessity, regulate land use uniformly within large districts.

It is impracticable to tailor such ordinances to meet the

condition of each individual parcel within the district. The

size, shape, topography or other conditions affecting such a

parcel may, if the zoning ordinance is applied to it as

written, render it relatively useless. Thus, a zoning

ordinance, valid on its face, might be unconstitutional as

applied to an individual parcel, in violation of Article 1,

§ 11 of the Constitution of Virginia.

Because a facially valid zoning ordinance may prove
unconstitutional in application to a particular
landowner, some device is needed to protect
landowners' rights without destroying the viability
of zoning ordinances. The variance traditionally
has been designed to serve this function. In this
role, the variance aptly has been called an "escape
hatch" or "escape valve." A statute may, of course,
authorize variances in cases where an ordinance's
application to particular property is not
unconstitutional. However, the language used in
Code § 15.1-495(b) [now § 15.2-2309(2)] to define
"unnecessary hardship" clearly indicates that the

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 General Assembly intended that variances be granted
only in cases where application of zoning
restrictions would appear to be constitutionally
impermissible.

Packer v. Hornsby, 221 Va. 117, 122, 267 S.E.2d 140, 142

(1980) (emphasis added) (citations omitted).

Therefore, the BZA has authority to grant variances only

to avoid an unconstitutional result. We said in Commonwealth

v. County Utilities, 223 Va. 534, 290 S.E.2d 867 (1982):

All citizens hold property subject to the proper
exercise of police power for the common good.
Sanitation Commission v. Craft, 196 Va. 1140, 1148,
87 S.E.2d 153, 158 (1955). Even where such an
exercise results in substantial diminution of
property values, an owner has no right to
compensation therefor. Miller v. Schoene, 276 U.S.
272 (1928), Hadacheck v. Sebastian, 239 U.S. 394
(1915). In Penn Central Transportation Co. v. City
of New York, 438 U.S. 104 (1978), the Supreme Court
held that no taking occurs in the circumstances
unless the regulation interferes with all reasonable
beneficial uses of the property, taken as a whole.

Id. at 542, 290 S.E.2d at 872 (emphasis added).

The BZA, when considering an application for a variance,

acts only in an administrative capacity. See Gayton Triangle

v. Henrico County, 216 Va. 764, 222 S.E.2d 570 (1976).2 Under

fundamental constitutional principles, administrative

officials and agencies are empowered to act only in accordance

2
By contrast, when the BZA considers applications for
special exceptions or special use permits, it acts in a
legislative capacity and its decision must be sustained if the
record shows the issue to be "fairly debatable." Ames v. Town
of Painter, 239 Va. 343, 348, 389 S.E.2d 702, 704 (1990).

11
with standards prescribed by the legislative branch of

government. To hold otherwise would be to substitute the will

of individuals for the rule of law. See e.g., Thompson v.

Smith, 155 Va. 367, 379, 154 S.E. 579, 584 (1930); Bell v.

Dorey Electric Company, 248 Va. 378, 380, 448 S.E.2d 622, 623

(1994); York v. City of Danville, 207 Va. 665, 672, 152 S.E.2d

259, 264 (1967); Assaid v. City of Roanoke, 179 Va. 47, 50, 18

S.E.2d 287, 288 (1942). The General Assembly has prescribed

such standards regulating the authority of the BZA to grant

variances by enacting Code § 15.2-2309(2) which provides, in

pertinent part:

Boards of zoning appeals shall have the
following powers and duties:

. . . .

(2) To authorize . . . such variance as defined in
§ 15.2-2201 from the terms of the ordinance as will
not be contrary to the public interest, when, owing
to special conditions a literal enforcement of the
provisions will result in unnecessary hardship;
. . . as follows:

. . . where by reason of exceptional topographic
conditions or other extraordinary situation or
condition of the piece of property . . . the strict
application of the terms of the ordinance would
effectively prohibit or unreasonably restrict the
utilization of the property or where the board is
satisfied, upon the evidence heard by it, that the
granting of the variance will alleviate a clearly
demonstrable hardship approaching confiscation, as
distinguished from a special privilege or
convenience sought by the applicant . . . .

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 No such variance shall be authorized by the
board unless it finds:

(a) That the strict application of the ordinance
would produce undue hardship . . . .

Adhering to the rule in Packer, we construe the statutory

terms "effectively prohibit or unreasonably restrict the

utilization of the property," "unnecessary hardship" and

"undue hardship" in that light and hold that the BZA 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."3 County Utilities Corp., 223 Va. at 542, 290 S.E.2d

at 872.

CONCLUSION

Notwithstanding the presumption of correctness to which

the decision of the BZA is entitled, Code § 15.2-2314, each of

3
The Fairfax BZA argues that in Natrella v. Board of
Zoning Appeals, 231 Va. 451, 345 S.E.2d 295 (1986), we pointed
out that the foregoing statutory terms are written in the
disjunctive and therefore implied that "unnecessarily restrict
the use of the property" meant something less than an
unconstitutional interference with property rights, thereby
departing from the rule in Packer. On the contrary, Natrella
involved the conversion of a rental apartment project into a
condominium with no physical change to the land or buildings.
A statute, Code § 55-79.43, expressly protected such
conversions from the impact of zoning ordinances, a situation
foreseen in Packer: "A statute may, of course, authorize
variances in cases where an ordinance's application to

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the present cases fails to meet the foregoing standard. The

proposed house in Fairfax could have been reconfigured or

moved two feet to the south, avoiding the need for a variance.

Indeed, the project could simply have been abandoned and the

existing use continued in effect. The proposed garage in

Pulaski could have been moved to another location on the lot,

or the project abandoned. The shed in Virginia Beach could

have been built as an addition to the existing house, or the

project abandoned. Without any variances, each of the

properties retained substantial beneficial uses and

substantial value. The effect of the respective zoning

ordinances upon them in no sense "interfere[d] with all

reasonable beneficial uses of the property, taken as a whole."

Compelling reasons were presented in favor of each of the

applications for variances: 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

particular property is not unconstitutional.” Packer, 221 Va.
at 122, 267 S.E.2d at 142 (emphasis added).

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application by neighbors; and serious personal need, by the

owners, for the proposed modification.

When the impact of the zoning ordinance is so severe as

to meet the foregoing standard, the BZA becomes vested with

wide discretion in tailoring a variance that will alleviate

the "hardship" while remaining "in harmony with the intended

spirit and purpose of the ordinance." Code § 15.2-2309(2).

Factors such as those advanced in support of the variances in

these cases are appropriate for consideration by the BZA in a

case that falls within that discretionary power, but they are

immaterial in a case in which the BZA has no authority to act.

The threshold question for the BZA in considering an

application for a 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 with "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.

For these reasons, we will reverse the judgments of the

circuit courts in each of the cases, vacate the resolutions of

the Boards of Zoning Appeals of the County of Fairfax and the

Town of Pulaski, respectively, reinstate the resolution of the

Board of Zoning Appeals of the City of Virginia Beach, and

enter final judgments here.

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Record No. 030982 − Reversed and final judgment.
Record No. 031770 − Reversed and final judgment.
Record No. 031771 − Reversed and final judgment.

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