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.