Opinion
45591 Record No. 841853
March 4, 1988
Present: All the Justices
Declaratory judgment of the trial court that a landowner had been wrongfully denied a variance which would have permitted subdivision of her land was erroneous and is reversed.
Cities, Counties and Towns — Subdivisions — Variances — Hardship
Plaintiff landowner had a piece of waterfront real property which had been plated prior to adoption of the city's subdivision ordinance which she wished to subdivide into two lots. The original parcel of land was nonconforming in two respects and the proposed two lots would each be nonconforming in both those respects. Plaintiff filed an application for a variance with the city planning commission, which approved it, but the city council denied the variance. Plaintiff filed a petition for declaratory judgment and received a declaratory judgment in the trial court that the council's action was illegal. The individual members of the council initiated an appeal.
1. The relevant subdivision ordinance provides that no variance from strict application of the ordinance shall be authorized unless strict application would produce undue hardship.
2. Assuming, without deciding, that the term undue hardship means something less in a subdivision context than in a zoning context, plaintiff failed to establish undue hardship even under that lesser burden of proof.
3. Financial loss, standing alone, cannot establish hardship sufficient to justify the granting of a subdivision variance.
4. There is no factual or legal support for other grounds of hardship and plaintiff is left with nothing but financial loss which cannot be considered as a ground for the issuance of a variance.
Appeal from a judgment of the Circuit Court of the City of Virginia Beach. Hon. N. Calvin Spain, judge presiding.
Reversed and dismissed.
R. J. Nutter, II (Grover C. Wright, Jr., P.C., on brief), for appellants.
Gerrit W. Benson (Stephen J. Kecskes; McCardell, Donnelly, Benson Miller, P.C., on brief), for appellee.
In this declaratory judgment proceeding involving the subdivision ordinance of the City of Virginia Beach, Una M. Lunsford received from the trial court a declaration that she was wrongfully denied a variance which would have permitted a subdivision of her land. Finding the trial court's action erroneous, we will reverse.
The record shows that Lunsford owns and resides upon Lot 12 in Alanton Subdivision in Virginia Beach. Alanton was platted in 1925, prior to adoption of the city's subdivision ordinance.
Bordering Linkhorn Bay, Lot 12 contains 2.39 acres. The lot was acquired in 1949 by Lunsford and her husband, since deceased, under a deed which permits subdivision of the lot into "not . . . more than two parts."
Lot 12 is zoned R-1 Residential District, requiring a minimum lot area of 40,000 square feet. Lunsford proposed to subdivide the parcel into two lots, with each containing more than the 40,000 square-foot minimum.
Section 4.4(b) of the subdivision ordinance incorporates by reference the zoning ordinance of Virginia Beach which in turn requires that a lot in an R-1 district have a width of 125 feet at the 50-foot front yard minimum setback line. Section 4.4(d) requires that each lot in a subdivision have "direct access to a public street."
Lot 12 is "pie" or "wedge" shaped and has only a width of 66 feet at the 50-foot front yard setback line. Furthermore, the lot has access to a public street only by way of a private road over which Lunsford has "a perpetual right of way." Hence, Lot 12 is nonconforming with respect to both Sections 4.4(b) and 4.4(d), and the two lots in Lunsford's proposed subdivision would also be nonconforming in the same respects.
Pursuant to Sec. 9.3 of the subdivision ordinance, Lunsford filed an application for a variance with the city planning commission on March 23, 1983. The commission conducted a hearing on the application on May 12, 1983, and recommended approval. City council heard the matter on June 20, 1983, and denied the application. On July 19, 1983, Lunsford filed the present declaratory judgment proceeding and, as previously noted, received a declaration from the trial court that council's action was illegal. The individual members of council then initiated this appeal.
In addition to appellant John A. Baum, the council member-appellants are Nancy A. Creech, Harold Heischober, Barbara M. Henley, H. Jack Jennings, Jr., Louis R. Jones, Robert G. Jones, W. H. Kitchin, Ill, Reba S. McClanan, Jx Henry McCoy, Jr., and Meyera E. Olerndorf. The appellants will be referred to infra as the City.
Section 9.3 of the subdivision ordinance provides in pertinent part: The city council may authorize in specific cases such variances from the strict application of the terms of this ordinance as will not be contrary to the public interest . . . provided that the spirit of this ordinance shall be observed and substantial justice done.
No variance shall be authorized by the city council unless it finds that:
(a) Strict application of the ordinance would produce undue hardship.
Section 9.3(d) provides in part that "[p]ersonal . . . hardship shall not be considered as [a ground] for the issuance of a variance."
The parties engage in prolonged debate on the question of Lunsford's burden of proof in establishing a hardship within the meaning of the subdivision ordinance. The City contends the burden should be the same as is imposed upon an applicant for a variance from the terms of a zoning ordinance, which burden is defined in Code Sec. 15.1-495(b) as requiring a showing of "a clearly demonstrable hardship approaching confiscation." See Bd. of Zoning App. v. Nowak, 227 Va. 201, 204, 315 S.E.2d 221, 223 (1984).
Lunsford contends on the other hand that because Sec. 9.3 is silent on the subject of confiscation, speaking only of an "undue hardship," a "less stringent interpretation of subdivision variance provisions makes sense." Zoning and subdivision concepts "are not synonymous," Lunsford opines. Zoning regulations, Lunsford states, relate to land use while subdivision regulations merely seek to promote uniformity of development. Hence, Lunsford concludes, "subdivision hardship. . . is something less than confiscation." (Emphasis in original).
We find these arguments interesting but, in the view we take of the case, quite academic. We will assume, without deciding, that the term "undue hardship" means something less in a subdivision context than in a zoning context. Yet, we think that even under a lesser burden, of proof, Lunsford has failed to establish an "undue hardship."
Lunsford concedes that "financial loss, standing alone, cannot establish [a] hardship sufficient to justify the granting of a subdivision variance." She argues, however, that financial loss "is a factor to be taken into consideration with the other reasons of hardship [she has assigned] and should not be ignored."
The "other reasons of hardship" Lunsford has assigned include the loss of "common law property rights to subdivide," loss of "the original deed subdivision property rights," loss of "an otherwise reasonable use," and "difficulty in resale." Except for the "difficulty in resale" ground, however, neither the record nor Lunsford's brief provides any factual or legal support for the "other reasons of hardship." And the "difficulty in resale" ground is supported only by Lunsford's self-serving testimony that prospective purchasers who wanted her "$210,000 lot" would not want her "$72,000 house" and those who wanted her "$72,000 house" would not want her "$210,000 lot." She did not indicate that any effort had been made to market the house and lot together.
Lunsford is left, therefore, with nothing but financial loss as a ground of hardship. True, her loss might be significant; she testified that the "difference in value [without a variance] would be close to $100,000." But, as Lunsford has correctly conceded, financial loss, standing alone, is not sufficient to justify the granting of a variance. See Natrella v. Board of Zoning Appeals, 231 Va. 451, 458, 345 S.E.2d 295, 300 (1986), and Azalea Corp. v. City of Richmond, 201 Va. 636, 641, 112 S.E.2d 862, 866 (1960). All Lunsford stands to suffer is a personal loss, and, under Sec. 9.3(d) of the subdivision ordinance, that cannot "be considered as [a ground] for the issuance of a variance."
We will reverse the judgment of the trial court and dismiss Lunsford's petition for declaratory judgment.
Reversed and dismissed.