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.
2
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,
3
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.
4
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.
5
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.
6
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
7
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
10
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 . . . .
12
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
13
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).
14
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.
15
Record No. 030982 − Reversed and final judgment.
Record No. 031770 − Reversed and final judgment.
Record No. 031771 − Reversed and final judgment.
16