Cochran v. Fairfax County Board of Zoning Appeals

Supreme Court of Virginia · Property

PropertyZoningVarianceszoningvarianceboard of zoning appealsunnecessary hardshipundue hardship

Facts

In Fairfax, the owner sought setback variances to build a larger replacement house, even though the house could be shifted, reconfigured, reduced slightly, expanded elsewhere on the lot, or given a third story without any variance. In Pulaski, the owners sought to place a garage near a curved corner boundary for easier access, but the garage could be built elsewhere on the lot without a variance, albeit with greater expense and possible impact on a retaining wall. In Virginia Beach, the owners sought to exceed the accessory-structure size limit for a storage shed, although the shed could be built as an addition to the house without a variance; the circuit court also relied on a personal hardship not presented to the BZA. In each case, the property still had substantial beneficial use and value without the requested variance.

Issue

Under Code § 15.2-2309(2), when does a board of zoning appeals have authority to grant a variance from a zoning ordinance? More specifically, may a variance be granted when the requested project is more convenient, attractive, less expensive, or personally beneficial, but the property still retains reasonable beneficial use without the variance?

Rule

A board of zoning appeals has authority to grant a variance only to avoid an unconstitutional result. The statutory terms "effectively prohibit or unreasonably restrict the utilization of the property," "unnecessary hardship," and "undue hardship" mean that, absent a variance, the zoning ordinance as applied must interfere with all reasonable beneficial uses of the property, taken as a whole. If that threshold is not met, the BZA has no authority to consider convenience, expense, aesthetics, neighbor support, or personal need.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Richmond, Elena Park owns a conforming single-family lot with an existing house. She asks the local board of zoning appeals for a rear-yard variance so she can build a detached art studio in the corner that best preserves her planned garden layout, although the studio could be shifted to another part of the lot in full compliance with the ordinance.

Should the board grant the variance?

Explanation. A variance may be granted only when strict application of the ordinance would interfere with all reasonable beneficial uses of the property, taken as a whole. If the proposed improvement can be relocated and the property retains substantial beneficial use and value, the board lacks authority to act. Design preference and convenience are legally immaterial unless that threshold is first met. (Derived from Cochran v. Fairfax County Board of Zoning Appeals (n.d.).)