Summary
In Nowak, the variance applicant purchased building plans for a home before he saw the lot and later discovered the proposed home, in the proposed location, would violate the applicable setback requirements.
Summary of this case from Adams v. GiguereOpinion
44622 Record No. 812014.
April 27, 1984.
Present: Carrico, C.J., Cochran, Poff, Compton, Stephenson, and Thomas, JJ., and Gordon, Retired Justice.
A request for a variance in a setback was properly denied by the Board of Zoning Appeals under Code Sec. 15.1-495, the applicant proving no unnecessary hardship.
(1) Cities, Counties and Towns — Zoning — Variances — Statutory Construction Powers and Duties of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — When Board of Zoning Appeals Empowered to Grant Variance.
(2) Cities, Counties and Towns — Zoning — Variances — Statutory Construction — Powers and Duties of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Special Conditions Under Which Literal Enforcement of Zoning Law Will Result in Hardship Stated in Section.
(3) Cities, Counties and Towns — Zoning — Variances — Statutory Construction — Powers and Duties of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Unnecessary Hardship Defined.
(4) Cities, Counties and Towns — Zoning — Variances — Statutory Construction — Powers and Duties of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Findings Required for Board of Zoning Appeals to Grant Variance.
(5) Cities, Counties and Towns — Zoning — Variances — Statutory Construction — Powers and Duties of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — What Applicant Must Prove to Obtain Variance.
(6) Cities, Counties and Towns — Zoning — Variances — Statutory Construction — Powers and Duties of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Evidence — Applicant Does Not Face Hardship Approaching Confiscation and Application Properly Denied by Board of Zoning Appeals.
The Board of Zoning Appeals denied the application of the property owner to reduce a side yard setback from 25 feet to 17 feet. The side of the lot abutted a public street and this had a 25 foot setback requirement. The property owner could place his home on the lot without reducing the setback but could not place the home as he wanted unless the setback was changed as he requested. The Trial Court reversed the decision of the Board on the ground that not only must the Board determine that an unnecessary hardship existed, but also whether some public purpose would be served by literal enforcement of the zoning ordinance, the Trial Court being of the view that literal enforcement under the circumstances, because the width of the cul-de-sac on which the lot was located, would serve no valid public purpose.
1. Code Sec. 15.1-495(b) empowers a Board of Zoning Appeals to grant a variance when owing to special conditions a literal enforcement of the provisions of a zoning ordinance will result in unnecessary hardship.
2. Code Sec. 15.1-495(b) lists the special conditions under which literal enforcement of a zoning ordinance will result in unnecessary hardship.
3. Code Sec. 15.1-495(b) defines unnecessary hardship as one occurring when the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of property or create a clearly demonstrable hardship approaching confiscation as distinguished from a special privilege or convenience sought by the applicant.
4. Under Code Sec. 15.1-495(b) a Board of Zoning Appeals cannot grant a variance unless it finds (a) that strict application of the ordinance would produce undue hardship, (b) that the hardship is not shared generally by other property in the same zoning district and vicinity, and (c) that authorization of the variance will not put adjacent property to substantial detriment or change the character of the district.
5. To obtain a variance, the applicant must show the existence of at least one of the special conditions set forth in Code Sec. 15.1-495(b) which would cause compliance to result in unnecessary hardship and the Board of Zoning Appeals must also find that the three tests set forth are satisfied.
6. Here the applicant does not face a hardship approaching confiscation and to grant the variance under the circumstances would bestow upon him a special privilege or convenience. The grant of a variance thus is impermissible under Code Sec. 15.1-495(b); Packer v. Hornsby, 221 Va. 117, 267 S.E.2d 140 (1980), followed.
Appeal from a judgment of the Circuit Court of the City of Virginia Beach. Hon. Bernard G. Barrow, judge presiding.
Reversed and final judgment.
Charles M. Salle', Assistant City Attorney, for appellant.
Joseph L. Lyle, Jr. (Pickett, Lyle, Siegel, Drescher Croshaw, P.C., on brief), for appellee.
On November 5, 1980, the Board of Zoning Appeals of the City of Virginia Beach denied the application of Stanley S. Nowak for a variance reducing a side yard setback from twenty-five feet to seventeen feet. On Nowak's petition, the trial court awarded a writ of certiorari to review the Board's action. Code Sec. 15.1-497. After a hearing, the trial court entered a final order on August 26, 1981, reversing the Board's decision and granting Nowak the requested variance.
The record discloses that Nowak is the contract purchaser of a vacant residential lot in the City of Virginia Beach. The lot is located at an intersection formed by two public streets, Whiteside Lane and Branch Circle. Nowak proposes to build a house on the lot facing Whiteside Lane. Under the city zoning ordinance, a fifteen-foot side yard setback is normally required, but, because the side of Nowak's lot abuts a public street, the setback requirement is increased to twenty-five feet.
Branch Circle is not a through street; it consists of a cul-de-sac approximately one hundred feet in width on which only three lots abut. There is little likelihood Branch Circle will be extended because a body of water borders the rear of the lots through which an extension would pass.
Nowak purchased the plans for his home before he first saw the lot. Because of the structure's width, he cannot place it on the lot the way he wants without a variance from the twenty-five-foot side yard restriction. The house could be placed on the lot without violating the setback requirement by shifting its position, but this would "not . . . suit [Nowak]."
At the certiorari hearing in the court below, Nowak produced an expert witness who testified that the purpose of the increased setback requirement was to provide sufficient visibility for "cars entering or leaving [the] cul-de-sac." The witness opined that, because the cul-de-sac was double the width normally required, there would be "plenty of visibility" for drivers of vehicles at the intersection, even with a residence located as Nowak proposed.
In a written opinion, the trial judge stated that the Board had applied erroneous principles of law in denying Nowak's request for a variance. The court wrote that, while Code Sec. 15.1-495 authorizes the granting of a variance for "unnecessary hardship," a board of zoning appeals must consider not only whether a hardship exists but also whether some public purpose would be served by the literal enforcement of a zoning regulation against the specific land involved. Yet, the court stated, the Board considered only the extent of Nowak's hardship and did not explore the question whether the purpose of the ordinance would be furthered by its application to Nowak's property.
Continuing, the trial judge said that "[i]f no public purpose is served by the application of an ordinance to a specific parcel of land, then a restriction of the use of that land is an unnecessary hardship, no matter how slight a hardship it might be." (Emphasis in original.) After reviewing the factual situation in the case, the judge concluded that "the application of the ordinance to this particular parcel of land will not serve a valid public purpose."
[1-3] We disagree with the trial court. The correct principles of law governing a board of zoning appeals when considering a request for a variance are outlined in Code Sec. 15.1-495(b) and are explicated in Packer v. Hornsby, 221 Va. 117, 267 S.E.2d 140 (1980). In Packer, we said that Code Sec. 15.1-495(b) "empowers a board [of zoning appeals] to grant a variance when 'owing to special conditions a literal enforcement of the provisions [of a zoning ordinance] will result in unnecessary hardship.' " 221 Va. at 120, 267 S.E.2d at 141. The Code section, we said, lists the "special conditions" and, in effect, defines "unnecessary hardship" as one occurring "when 'the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of the property' or create 'a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant.' " Id. at 120-21, 267 S.E.2d at 141-42.
[4-5] Continuing, we pointed out that under Code Sec. 15.1-495(b), a board of zoning appeals cannot grant a variance unless it makes three findings specified in the statute:
(1) That the strict application of the ordinance would produce undue hardship.
(2) That such hardship is not shared generally by other properties in the same zoning district and the same vicinity.
(3) That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance.
Summarizing, we said that "not only must an applicant show the existence of at least one of several 'special conditions' which would cause compliance with a zoning ordinance to result in an 'unnecessary hardship', but the board of zoning appeals must find that the three enumerated tests are satisfied." 221 Va. at 121, 267 S.E.2d at 142.
Because, as we will demonstrate infra, Nowak did not prove "unnecessary hardship," the Board could not make the finding required by the first of the three tests and, therefore, did not reach the other two.
The applicants in Packer, property owners in Virginia Beach, sought a variance from oceanfront and sideline setback requirements to accommodate additions to an existing dwelling. The board of zoning appeals granted the variance and the trial court reversed the board's decision. We affirmed the trial court, stating:
Manifestly, the [applicants] do not face a "hardship approaching confiscation", nor has their use of their land been effectively prohibited or unreasonably restricted. . . . [The applicants] can enlarge the house without violating the setback requirement by adding to the west side of the structure. The evidence shows that the [applicants] simply would prefer to expand to the east in order to have a better floor plan with a better view of the ocean.
Id. at 122; 267 S.E.2d at 142-43.
Nowak, the applicant here, is entitled to fare no better than the applicants in Packer. He does not face a "hardship approaching confiscation" any more than did they and the use of his property has not been effectively prohibited or unnecessarily restricted to any greater degree than was theirs.
This is not a case of "unnecessary hardship" but a situation where, as an alternative to violating the setback requirement, an applicant for a variance need only shift the position of the structure he proposes to build. Understandably, this alternative does not "suit" the applicant. But to grant him a variance under these circumstances would bestow upon him a "special privilege or convenience," and this is impermissible under Code Sec. 15.1-495(b).
We hold, therefore, that the trial court erred in reversing the Board's decision and in granting Nowak the requested variance. The court's judgment will be reversed, and final judgment will be entered here reinstating the Board's decision denying the variance.
Reversed and final judgment.