Spence v. Board of Zoning Appeals for Virginia Beach

PRESENT:   All the Justices

GORDON SPENCE

v.   Record No. 970351    OPINION BY JUSTICE BARBARA MILANO KEENAN
                                        January 9, 1998

BOARD OF ZONING APPEALS FOR
THE CITY OF VIRGINIA BEACH, ET AL.

       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    A. Bonwill Shockley, Judge


      In this appeal, we consider whether the trial court erred in

upholding a decision of a board of zoning appeals that authorized

a variance from certain residential setback and parking space

requirements.
      In 1989, Wayne Beagle purchased two lots in the Chesapeake

Beach area of the City of Virginia Beach.   The lots, which were

platted in 1928, are zoned for R-7.5 use under the zoning

ordinance enacted by the City in 1988.   This residential use

classification requires a minimum lot size of 7,500 square feet.

      The two lots contain a total of 4,011 square feet and

constitute a triangular-shaped corner property that is subject to

a 30-foot zoning setback requirement on two of its three sides.

The parties agree that, due to the size and shape of the

property, a residential structure cannot be built on the property

unless a variance is obtained.

      Beagle, a real estate developer, purchased the lots knowing

that their previous owner had been denied a variance to construct

a single residence on the lots.   Beagle later applied to the

Board of Zoning Appeals for the City of Virginia Beach (the

Board) for a variance, submitting a site plan for a residential
structure that conformed to the applicable lot coverage

restrictions.   To build the structure, Beagle needed a front yard

setback variance of 17 feet, a side yard setback variance of 17

feet, and a reduction of parking space size.   The Board granted

Beagle's variance application.

     Gordon Spence, alleging the status of an aggrieved property

owner, petitioned the trial court for a writ of certiorari to

review the Board's decision.    The trial court did not hear

evidence, but based its decision solely on the record before the

Board.   Affirming the Board's decision, the trial court ruled,

among other things, that the evidence supported the Board's

findings made under Code § 15.1-495.   Spence appeals from this

decision.
     Spence argues that Beagle did not meet his burden of proving

that he purchased the property in good faith because he acquired

the property at a low price, knowing that it could not be

developed without a variance.    Spence also contends that any

hardship suffered by Beagle was self-inflicted, because he knew

the property was nonconforming when he purchased it.    We disagree

with Spence's arguments.

     A board of zoning appeals may grant a variance if such grant

is not contrary to the public interest and if a literal

enforcement of the zoning ordinance will result in unnecessary

hardship to the property owner.   Code § 15.1-495(2).   The factors

governing this process are further detailed in Code § 15.1-

495(2), which permits the granting of a variance
          [w]hen a property owner can show that his property
     was acquired in good faith and where by reason of the
     exceptional narrowness, shallowness, size or shape of a
     specific piece of property at the time of the effective
     date of the ordinance, . . . 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 such
     variance will alleviate a clearly demonstrable hardship
     approaching confiscation, as distinguished from a
     special privilege or convenience sought by the
     applicant, provided that all variances shall be in
     harmony with the intended spirit and purpose of the
     ordinance.


     In addition, Code § 15.1-495(2) limits the authority of a

board of zoning appeals to grant a variance by requiring that

three specific findings be made before a variance is granted.

The board must find that: (1) a strict application of the

ordinance would result in an undue hardship to the property

owner, (2) this hardship is not shared generally by properties in

the same zoning district and the same vicinity, and (3) the

variance will not result in substantial detriment to adjacent

property and will not change the character of the zoning

district.   Code § 15.1-495(2).
     On review before the trial court, the decision of a board of

zoning appeals is presumed to be correct.     Steele v. Fluvanna

County Board of Zoning Appeals, 246 Va. 502, 506, 436 S.E.2d 453,

456 (1993); Masterson v. Board of Zoning Appeals, 233 Va. 37, 44,

353 S.E.2d 727, 732-33 (1987).    The trial court's review is

limited to a determination whether a board has applied erroneous

principles of law or, when a board's discretion is involved,

whether the decision is plainly wrong and in violation of the

purpose and intent of the zoning ordinance.     Id.; Packer v.

Hornsby, 221 Va. 117, 120, 267 S.E.2d 140, 141 (1980); Alleghany
Enterprises, Inc. v. Board of Zoning Appeals, 217 Va. 64, 67, 225

S.E.2d 383, 385 (1976).

     We first hold that Beagle's purchase of the property at a

low price with the intent to seek a variance does not constitute

an absence of "good faith," as that term is used in Code § 15.1-

495(2).   The very purpose of the statute is to afford any

property owner an opportunity to seek a variance when a strict

application of the zoning ordinance would effectively prohibit or

unreasonably restrict the owner's use of the property, or would

cause a demonstrable hardship approaching confiscation of the

property.   See Code § 15.1-495(2).    The purchase price of the

property is irrelevant to this consideration.

     Likewise, Beagle's knowledge that the previous owner of the

property had been denied a variance does not affect his "good

faith" status under the statute.   A board of zoning appeals'

decision whether to grant a variance must be exercised with

regard to the particular facts of an application, including the

precise extent of the relief sought.     See Board of Zoning Appeals

v. Fowler, 201 Va. 942, 947-48, 114 S.E.2d 753, 757-58 (1960);

Azalea Corp. v. City of Richmond, 201 Va. 636, 640, 112 S.E.2d

862, 865 (1960); Board of Zoning Appeals v. Combs, 200 Va. 471,

475, 106 S.E.2d 755, 758 (1959).   While the denial of a prior

application may be a relevant consideration regarding the extent

of relief that is appropriate, nothing in the language of Code

§ 15.1-495(2) precludes a property owner from seeking a variance

when a prior application has been denied.

     Spence next argues that since Beagle purchased the property
knowing that he needed a variance to build a house, the mere fact

of his purchase constitutes a self-inflicted hardship that bars

him from obtaining a variance.   We reject this argument because,

under Spence's analysis, nonconforming property could never be

developed by obtaining a variance after the property is sold and,

therefore, Code § 15.1-495(2) would be rendered meaningless with

regard to such property.   No language in Code § 15.1-495(2)

supports this result.
     Nevertheless, Spence argues that three of our decisions

compel a conclusion that Beagle's hardship is self-inflicted.

His reliance on these decisions is misplaced because each of

those cases involved property owners who had acted in violation

of applicable zoning ordinances.   In Steele v. Fluvanna County

Board of Supervisors, 246 Va. 502, 436 S.E.2d 453, we held that

the construction of a house in violation of side yard setback

requirements, although done inadvertently, was a self-inflicted

hardship.   We stated that "a self-inflicted hardship, whether

deliberately or ignorantly incurred, provides no basis for the

granting of a variance."   246 Va. at 507, 436 S.E.2d at 457.

     In Alleghany Enterprises, Inc. v. Board of Zoning Appeals,
217 Va. 64, 225 S.E.2d 383, a property owner sought a variance to

allow use of his property as an automobile sales lot.   The

property was zoned for residential use but was located adjacent

to the owner's motor vehicle business.   We held that any hardship

the property owner suffered was self-inflicted because, after

purchasing property zoned for residential use, he violated the

zoning ordinance by using the property for purposes not allowed
in that land use classification.   217 Va. at 68-69, 225 S.E.2d at

386.

       In Board of Zoning Appeals v. Combs, 200 Va. 471, 106 S.E.2d

755, we reinstated a board of zoning appeals' decision denying an

occupancy permit to a property owner who had constructed an

apartment over an existing garage in violation of a zoning

ordinance.   We held that any hardship the owner suffered was

self-inflicted.   200 Va. at 477, 106 S.E.2d at 759.
       Unlike the property owners in Steele, Alleghany, and Combs,

Beagle did not violate a zoning ordinance provision and then seek

relief from the consequences of that unlawful act.     Instead,

Beagle followed the procedures prescribed by Code § 15.1-495(2)

and the City's zoning ordinance to obtain a variance before

attempting to use the property.    Beagle did not create his own

hardship but only sought relief allowed by Code § 15.1-495(2)

based on the configuration and the physical characteristics of

his property.   Thus, we conclude that the trial court did not err

in upholding the Board's decision.

       For these reasons, we will affirm the trial court's

judgment.
                                                             Affirmed.