Opinion
44457 Record No. 801519.
March 11, 1983
Present: Carrico, C.J., Cochran, Poff, Compton, Thompson, Stephenson, and Russell, JJ.
Justice Thompson participated in the hearing and decision of this case prior to the effective date of his retirement on March 2, 1983.
Use of variances to resolve recurring zoning problems prohibited where legislative enactment is "reasonably practicable" [Code Sec. 15.1-495(b)]; other issues discussed.
(1) Zoning — Burden of Proof — Board of Zoning Appeals — Board's Decision Presumed to Be Correct and Burden On Appealing Party to Overcome This Presumption.
(2) Zoning — Pleading and Practice — Board of Zoning Appeals — Standard of Review — Court May Not Disturb Decision Unless Board Applied Erroneous Principles of Law Or Its Decision Violated Pure of Ordinance.
(3 Zoning — Statutory Construction — Powers and Decisions of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Variances — May Be Granted When Literal Enforcement of Zoning Ordinance Would Result in Unnecessary Hardship.
(4) Zoning — Statutory Construction — Powers and Decisions of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Variances — Unnecessary Hardship — When Unnecessary Hardship Exists.
(5) Zoning — Statutory Construction — Powers and Decisions of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Variances — Conditions Under Which May Be Granted Defined.
(6) Zoning — Evidence — Board of Zoning Appeals — Variances — Evidence Insufficient to Sustain Granting of Variance.
(7) Zoning — Powers and Decisions of Board of Zoning Appeals [Code Sec. 15.1-495(b)] — Variances — Local Legislative Authority Vested With Power to Resolve Recurring Zoning Problems and Use of Variances to Resolve Such Problems Prohibited Where Legislative Enactment Reasonably Practicable.
In 1964, the Bonds purchased a 1.01 acre parcel of land. The contract of sale described the property as two one-half acre lots, but the deed contains one metes and bounds description for the entire parcel. Since the purchase, the land has always been zoned A-1 (Agricultural). At the time of sale, one single-family dwelling per one-half acre was allowed in A-1 districts. The zoning ordinance was subsequently amended to allow only one single-family dwelling per acre.
The Bonds constructed a dwelling and detached garage on the parcel. They intended to convert the garage into a dwelling for their son when the need arose and began this conversion in 1979. Upon learning that the zoning ordinance prohibited the construction of two dwellings on their parcel, they applied for a variance. They stated that they needed the variance because their son and his family could not afford other housing in Prince William County. The Board of Zoning Appeals denied their application for a variance. However, the Trial Court, deciding that the Bonds had proved undue hardship, reversed the Board's decision and granted the variance. The Board appeals.
1. A decision of a Board of Zoning Appeals is presumed to be correct. The burden is on the appealing party to overcome this presumption.
2. A Court may not disturb a Board of Zoning Appeals' decision unless the Board applied erroneous principles of law or its decision was plainly wrong and violated the purpose and intent of the zoning ordinance.
3. Under Code Sec. 15.1-495(b), a Board of Zoning Appeals may grant a variance when, owing to special conditions, a literal enforcement of the zoning ordinance would result in unnecessary hardship.
4. An unnecessary hardship exists under Code Sec. 15.1-495(b) when the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of the property or cause a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant.
5. Under Code Sec. 15.1.495(b), a Board of Zoning Appeals cannot grant a variance unless it finds that the strict application of the ordinance would produce undue hardship; that such hardship is not shared generally by other properties in the same zoning district and vicinity; and that the authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance.
6. The evidence is insufficient to sustain the granting of a variance, there being no evidence of a special condition constituting an unnecessary hardship as an unreasonable restriction upon the land by the ordinance.
7. Zoning is a legislative function and is not within the authority of a Board of Zoning Appeals. The Board was correct in denying the application for a variance.
Appeal from a judgment of the Circuit Court of Prince William County. Hon. Percy Thornton, Jr., judge presiding.
Reversed and dismissed.
John Holland Foote, Deputy County Attorney (T. A. Emerson, County Attorney, on brief), for appellant.
William W. May for appellees.
William and Florence Bond applied to the Prince William County Board of Zoning Appeals for a variance from the terms of the County's zoning ordinance. When their application was denied, the Bonds appealed to the circuit court, which reversed the decision of the Board and granted the variance. The Board, in turn, appeals to this Court.
In 1964, the Bonds purchased a 1.01 acre parcel of land. The contract of sale described the property as two one-half acre lots. However, the deed contains one metes and bounds description for the entire parcel. At all times since the purchase, the land has been zoned A-1 (Agricultural). At the time of sale, one single-family dwelling per one-half acre was allowed in A-1 districts. The zoning ordinance was amended in 1976 to allow only one single-family dwelling per acre.
The Bonds constructed a dwelling and detached garage on the parcel. Mrs. Bond testified before the Board that from the time of construction it was the family's intention to convert the garage into a dwelling for her son when the need arose. In 1979, the Bonds began this conversion. Upon learning that the zoning ordinance prohibited the construction of two dwellings on their parcel, they applied for the variance. Mrs. Bond stated that her son and his family could not afford other housing in Prince William County.
This case came before the trial court upon a writ of certiorari. Code Sec. 15.1-497. No testimony was presented to the court, which therefore based its decision solely on the evidence presented to the Board. Deciding that the Bonds had proved undue hardship, the trial court reversed the Board's decision and granted the variance.
[1-2] A decision of a board of zoning appeals is presumed to be correct, and the burden is on the appealing party to overcome this presumption in the trial court. A court may not disturb a board's decision unless the board applied erroneous principles of law or its decision was plainly wrong and violated the purpose and intent of the zoning ordinance. Packer v. Hornsby, 221 Va. 117, 120, 267 S.E.2d 140, 141 (1980); Alleghany Enterprises v. Covington, 217 Va. 64, 67, 225 S.E.2d 383, 385 (1976).
[3-5] In Packer, we reviewed the principles of law to be applied by a board in considering whether to grant a variance. A variance may be granted when "owing to special conditions a literal enforcement . . . [of the zoning ordinance] will result in unnecessary hardship." Code Sec. 15.1-495(b). An unnecessary hardship exists when "the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of the property" or cause "a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant." Id. Finally, a board cannot grant a variance unless it finds:
(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.
Id.
When the evidence presented by the Bonds is measured against these principles, we find it wholly insufficient to sustain the granting of a variance. The mere fact that the zoning ordinance permits the Bonds to build only one dwelling on their land is not a hardship approaching confiscation, as contemplated by the statute. The limitation imposed by the zoning ordinance is one shared by all property owners in the A-1 district. The Bonds produced no evidence of a special condition constituting an unnecessary hardship; nor did they show that the restriction on the use of their land imposed by the ordinance was unreasonable.
The Bonds' application for a variance was, in effect, a request for a rezoning of their property. Zoning, however, is purely a legislative function and is not within the authority of a board of zoning appeals.
The power to resolve recurring zoning problems shared generally by those in the same district is vested in the legislative arm of the local governing body. The use of variances to resolve such problems is prohibited where a legislative enactment is "reasonably practicable," Code Sec. 15.1-495(b), because the piecemeal granting of variances could "ultimately nullify a zoning restriction throughout [a] zoning district." Packer v. Hornsby, 221 Va. at 122-23, 267 S.E.2d at 143.
Hendrix v. Board of Zoning Appeals, 222 Va. 57, 61, 278 S.E.2d 814, 817 (1981).
We hold that the Board was correct in denying the Bonds' application for a variance and that the trial court erred in overruling the Board's decision. Accordingly, we will reverse the judgment of the trial court and dismiss the Bonds' application for a variance.
Reversed and dismissed.