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HomeMy WebLinkAboutVA199200037 Application 1992-10-07 r t _ County of Albemarle Department of Zoning 401 McIntire Road Charlottesville, VA 22902-4596 (804) 296-5875 FAX (804) 972-4060 VA- C a`✓3 ' DATE: 1017 tqz. FEE: $95. 00 STAFF: ? (3 VARIANCE APPLICATION OWNER (as currently listed in Real Estate) Name D2AA0E ie_4fl1Iv1 Phone (& "J) 2_1'3 -674/f 171 a3 37os LU Address A a /3o)( .3 5_ CbV 1//Z L E 1/i 4;20)�3 APPLICANT (if different from above) Name Phone ( ) - Address CONTACT PERSON (if different from above) NocIER RAY Name Phone ( ) - Day Phone (Soy, ) Address � l r/ �j LOCATION: 'NMI tp"�lO"! I r � T (! tfeqt e c) -- ,O reeatt d PLEASE PROVIDE A DESCRIPTION AND JUSTIFICATION OF YOUR REQUEST ON AI tti E BACK OF THIS SHEET. OFFICE USE ONLY ID 5eiVclli�jS ( . 10(e a.Gre5 5dv'li 3,3 rcGreS I (J` TAX MAP 54 , PARCEL _34 ; TM 4 , P J ; TM , P S ZONED: Rl,QR,AL A-R.EA� ORDINANCE SECTION: ICA' RE6uLAgEAft IO�t,NSLIL ,o$) (-Mk° Board of Zoning Appeals Date: it /_L'/,* � .3 tN .7-C NO GLTI I TI E5 ( ) Special Permit ( ) Variance ;: /, ( ) Proffers 1 (1-4 4e.eve< (Mit- ON( iv DT 5 45 (0.96(` 7 3� — 3 560 (© � woke h� 4°. ea 4 K,° r� er O• e ea o5 2° le 2 e a ,moo -CA �l¢ �a a $Z'►�ya• a�,,o aea °e. t a ra ) 4 are 4���a�a $,oe �a you ��ll �° V„N 2'O g-c,.arG 9 )" 00c' -yo aGl .c.0 40r ,1. ' e�5 y ay tAy o. r o y GeaoaA a, yK., ` cc° �'° Ab � eeK,e zAya r,yr� e7, �Oe000 "° � �Ay�° e ° c-\ 0 ` ) VARIANCE CHECKLIST The current application form must be completed by the applicant in its entirety (the request should be clear) . THE FOLLOWING INFORMATION SHALL BE SUBMITTED WITH THE APPLICATION AND IS TO BE PROVIDED BY THE APPLICANT. ( , ) Application with justification statement. („) Most recently approved recorded plat. If none exists, then a copy of the deed description for the property or properties involved in the request. (j) The appropriate drawings showing all existing and proposed improvements on the property, with dimensions and distances to property lines, and any special conditions of the property that may justify the request. aThe fee payable to the County of Albemarle. THE ZONING DEPARTMENT WILL PROVIDE THE FOLLOWING INFORMATION TO THE APPLICANT: (.4) One public notice sign for each roadway and/or road frontage. (-f) Instructions for posting signs. ( 4 Copy of the review schedule. 0 (6 '� ci'- ' (Person a cepting\ap l 'cation) Dat .4•N:6t1D to Kmow : (a-F• Lot 61ffh pi(• oiv_ei C_- b r ( , .r 0 . p . h •• • i. BK 1 131 FGQ44I G1081" THIS TRUSTEE'S DEED made this 6th day of November, 1990, by and between JAMES M. BOWLING, IV, "Trustee"; and DUANE RAMM, • . E married, as his sole an.: separate equitable estate, hereinafter called the Grantee, whose address is P. 0. Box 35, Covesville, t Virginia 22931. • 4 W I T N E S S E T H: WHEREAS, William M. Murphy and Loretta A. Murphy, husband and , r- wife, "Borrowers", by a certain Deed of Trust dated August 15, • 1986, recorded in Deed Book 894, page 686, among the land records . of Albemarle County, Virginia, granted and conveyed unto Ross W. - Irumm • and Thomas M. Purcell, "Trustees", all of the hereinafter f i described lots or parcels of land, in trust to secure a certain Y t' • - : debt fully described in said Deed of Trust; and 7.F WHEREAS, by instrument recorded in Deed Book 1089, page 425, 7- • of the aforeuaid land records, Ronald D. Wiley, was appointed as •r 3 • ./ v1, substitute Trustee with all of the powers, duties and obligations •; originally conferred on Ross W. Irumm and Thomas M. Purcell, the ' Trustees named in said deed of trust; and r.t WHEREAS, by instrument recorded in Deed Book 1121, page 348, y �'I t• 41 of the aforesaid land records, James M. Bowling, IV, was appoints. ' as substitute Trustee with all of the powers, duties ar . : e * , obligations originally conferred on Ross W. Irumm and Thomas M. Purcell. the Trustees named in said deed of trust; and :I`. • yq. 4. . .ice;; ' ,,, 1 . S -, 0 , K 0 {. , i BKI I3IPG0442 WHEREAS, the Trustee, by the terms of said Deed of Trust, was empowered, upon default in the payment of said debt, end upon request of the Beneficiary of the Deed of Trust to do so, to sell r+ the hereinafter described land at public auction; and I;_,_ WHEREAS, default was made in the payment of said debt, and the r • Beneficiary requested the Trustee to sell said land pursuant to a the terms of said Deed of Trust; and , t pWHEREAS, the Trustee did advertise the time, place and terms of such sale in The Daily Progress, a newspaper having general ' • circulation in Albemarle County, Virginia, in its issues of October ! : •_ 1, 1990, October 8, 1990, and October 15, 1990, the date of sale . r being fixed in said notice for October 16, 1990 at 12:00 o'clock Noor at the front door of the Circuit Court of Albemarle County, , k . ; Charlottesville, Virginia; and . ° WHEREAS, the Trustee gave written notice of the proposed sale � i by Certified Mail to William M. Murphy and Loretta A. Murphy, the a owners of the property at the time of the sale, at thier last known - r address as said address appeared on the records of the Beneficiary, . ` with a copy of the advertisement enclosed, at least fourteen (14) 1 days prior th the date of sale; and WHEREAS, the Trustee, at said time and place did expose the "L 1 hereinafter described property to sale at public auction to the • d highest bidder, for cash, in strict accordance with the terms of v the aforesaid Deed of Trust, at which sale the Grantee became the 4- purchaser thereof for the sum of THREE HUNDRED THOUSAND AND NO/1n(� •' ' DOLLARS ($300,000.00), that being the last and highest bid; end , • 2 .3 a - •4 7 M1 _ '1' I ` t is 1 ' F as been paid in full by the t. r' . _.._ WHEREAS, the ��ir{c1e1rJ pK`itl Grantee, as hereinafter described; NOW, THERE 'ORE, in consideration of the premises and the sum r .--- of THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00), which . • is evidenced by credit for partial payment of a wrap around second � • lien note dated August 15, 1986, and recorded at Deed Book 894, oc,, i1.% page 6R6, of the aforesaid land records, in the original principal ! • 4Y • amount of $415,000.00, at and before the sealing and delivery of •:iii v this Deed, receipt of which is hereby acknowledged, which said sums . . i+ • are to be appropriated an applied as provided bylaw, the Trustee k;.. does hereby GRANT and CONVEY unto the Grantee, as his sole and _- f equitable separate estate, free from the control and ma1'ital rights - of any present or future wife and free from any dower rights or s inchoate dower rights of any present or future wife of said Grantee, all of which are expressly excluded, and with the full .4nd complete authority in the said Grantee to alien, convey, encumber .. and otherwise deal with and dispose of the same without the 2. necessity of joinder by or with any present or future wife of the ' said Grantee, with SPECIAL WARRANTY i,F TITLE, the following ,.. described property, to—wit: 6 Parcel 1: A parcel, together with improvements thereon, '' __ fronting on State Routes 827 and 691 in Albemarle County, Virginia and more particularly described as Lot 1 containing r 6.906 acres, more or less, on plat of Robert L. Lum, C.L.S., • dated November 23, 1979, of record in the C\erk's Office of 'k, the Circuit Court of Albemarle County, Virginia, in Deed Boa's 720, pdia 661; 3 .... 0 !: 0 . l'4. • !' ,. • • i 4. , t . exII3I eG0444 ' Parcel 2: A parcel, together with improvaaents thereon, 7 in Albemarle Ccunt , Virginia and fronting on State Route 82 y• more particularly described as containing 3.30 acres, ■ore or less, on plat of R. 0. Snow and R. W. Ray, Inc. , P.C., datedtill'::':1}1,',":.',...:,;',,,,..:s",-*;,:l'i'tril..,:,.. ._ July 6, 1981, of record in the said Clerk's Office in Deed Book721, page 537;BEING the same property in all respects as conveyed to William M. Murphy and Loretta A. Murphy, husband and wife, by. , deed of Duane Ram■ and Mary Ream, as Trustees of the Greenwood Land Trust II dated August 15, 1986 and of record in saidClerk's Office in Deed Book 894, page 683.This conveyance is made SUBJECT TO any and all easements, :.,... :... : restrictions, reservations and conditions contained in duly recorded deeds, plats and other instruments constituting t #, constructive notice in the chain of title to the above-described ;"? f'= • property which have not expired by a time limitation contained . .i1'. a therein or otherwise have become ineffective. >.+ • 4 . WITNESS the following signature and seal: •, ' -. • 9 c t'j (SEAL) — d.',• , JAMES DO N , IV ,' -k": r. Tru ee E �, .$ t a. • STATE OF VIRGINIA ? COUNTY OF AiBEMARLE, to-wit; I hereby certify that e'the foreg$o,in instrument Y acknowledged before me this A day of N® 4Gk._ , 1990, . JAMES M. BOWLING, IV, Trustee. '' - , 1... ' --;* : . PUBLIC 1 My Commission Expires: $'/7'4:71 C • -4 M .,x.n:.,�.-v:-.,an vx:rsrl-•r-,^..-..�+r6[."4A�._.�.�..�.i-1e3tx "s.,.`," ...�. "'. . . i ft . .. ' ... • , -' Y. , i . -... . . . ., . '!!„•;i:. , ... , .1 . . ! , . . , C1446 ru• . ,., 0....„ ,,,. ,... , K i • . , • ,..,...t. ........ _. ,, . S. . :,. VIRGINIA: IN THE CLERK'S OFFICE OF THS CIRCUIT COURT OF ALBEMARLE: •:.., • .....i.f THIS DEED WAS PRESENTED, AND WITH CERTIFICATE ANNEXED, IS At -,'- 1„ -.. . TO RECORD ON aac.. 9 ,19910L, AT ,,VO O'CLOCK i7 N. -„,- . STATE TAX 8652121L(039) • .. LOCAL TAX $zri1-9---(213) .,„... •,. . : TRANSFER FEE $ (212) VSLF $ iliT: (145) • CLERK'S FEE $ /60,1„, (301) ,';, • PLAT $ • .. ' SEC.58.1-802: TESTS: >_ ... STATE TAX $ (038) SHELBY J.NRESHALL,CLINK 5.-'.4 . . '.. 1 LOCAL TAK $ (220) , (223) Ji. , ,- TOTAL $ gi3 5..Od • r'-.,,,. i., • ,, • .-. ,r.. ;.•A . ., ., . D ue- iv • . . , 19- (II 1/1/1 ... -. ,f... . „,. . , .. ,......... , . . . . . . .. . e 0 ALBEMARLE COUNTY 38 / ',. ,/,..%------: ----------------____,V \A/ ir __COU/yTy _____ 3 i . , -/ N 244 / . 22 _ vl.§342,, ( , ,----- ----- ) ..._____,./,.7,___.,_____.1100 —_\�."� / ) l\....----' 1---- \ 288 �L\ \2S \ !i �' II 26 \ 7I // �, \ [:-- -.\ --- -N• i ' \ ( ( j \ I 21 % / \ it 7..,. ...s. -..\ ) s+ \ \ iI 7, ,A„, A \. i 27 II JI \ 4.-268,,,,, , Jam\ I 26 -\ a / I \ 26A \ _ 11/ Nc '� /\ �� A i _VA-92-37 Duane Ramm 7 /1 , Tax Map 54, Parcels 34 & 35 53, K \ / 42 -...- "\- . ANO SO 29121 55\ 20A J� \ ApEI*E 411G 334/ ` \ CNES \ 1\ • • - .'36 32I :6 �\ . 3.A 1 —_ \ 43 ['M 37 A36 36A' / \ )c-jf ��- 43A • 4 i. -741V4 1 46 �= SI 43...�� / ® � 2 I ,\ 1 46 t ' 324 52B 1 5 s%7-/ �N 4111 SS 54 \�(/\ SB`\ '.5 6Ii6g \16 .�Y/ %� 56�../'/ 174� 67a % \\II `' I // / �.. 74G ��W6 '� '7 CT�K / .67 / / 5 4- / /�/ 20B \..., 4— 69 59iGA /i / % �� 1 ~ _63�� 4/ bila I / 75 / - �65 7\ '\�64/K I • 7.07 .. ____.._.---- ISM , ._rrtT ,, TRT6 ..... ) roC, I0 C \ \ 'fit"\ s 12° PART OF 70-3 ` 7S ` 20 74f / 2Y /f n�/�� 7ei ( : \ \ • \ 74f PART OF 70-3 70 SALE ,N FEET WHITE . HALL . DISTRICT SECTION 54- . ,Ids Natrella v. Board of Zoning Appeals 451 I 86) 231 Va. 451 (1986) I ;neets the requirements of MICHAEL C. NATRELLA, ET AL. the more restrictive corn- e there is ample unrefuted v. )f marital cohabitation, as BOARD OF ZONING APPEALS OF ARLINGTON t of the divorce venue stat- .s, was in the City of Alex- COUNTY, ET AL. , at all times, and still has, Record No. 821787 late amendment to the bill June 13, 1986 us conclusion of law con- Present: Carrico, C.J., Cochran, Poff, Compton, Stephenson, Thomas, JJ., and Harrison, I to amend its final decree Retired Justice. take the record "speak the that it lacked such power. Judgment is affirmed in an appeal by apartment dwellers contesting zoning variances granted to the building owners µ' -eversed, and the case re- I, order and for further pro- to permit conversion of the building to condominium units. Real Property p y — Zoning — Variances — Hardship — Financial Considers- i tions — Sufficiency of Evidence — Condominium Act — Standard of Review Reversed and remanded. kr The owners of an apartment house applied for certain zoning variances to permit a. them to convert the structure from rental apartments to condominiums. Evi- al dence was developed before the Board of Zoning Appeals, which granted the variances. The trial court upheld the ruling upon a certified record of the ii administrative proceedings. This appeal by residents in the complex follows. I. 1. A party appealing an adverse ruling of the zoning board and the trial court must overcome the presumptions of correctness attaching to both decisions. M 2. Variances may be granted under Code § 15.1-495(b) where literal enforce- " b ment of provisions will result in unnecessary hardship, defined in the dis- junctive to include effective prohibition on use of the property, unreasonable restrictions on use, or hardship approaching confiscation. 3. Evidence of the relative value of the property with and without the variance is relevant on the issue of hardship approaching confiscation and the issue of unreasonable restriction on the use of property; however, such financial evi- dence standing alone cannot establish unreasonable restriction on use. 4. Code § 55-79.43 is intended to prevent discrimination against condominiums where the only difference from other buildings is the form of ownership. Where, as here, there are no changes in land use impact from a proposed change to condominium ownership, and the variance is to confirm existing legally permitted nonconformities, a variance denial based solely on the form of ownership would be an unreasonable restriction on the use of the property under the code. Thus there was sufficient evidence of undue hard- ship to sustain the decisions below. 5. There was sufficient evidence to sustain the conclusion that the hardship here was not shared generally be other properties in the same vicinity, since • the building was the only one of its size and zoning category in the area. r N ; 452 Natrella v. Board of Zoning Appeals 231 Va. 451 (1986) 6. Proof that the variance would have no adverse land use impact was also sufficient to establish that granting the variance would not result in a sub- 1 stantial detriment to adjacent property or a change in the character of the ‘ 1 district in which the property is located. Appeal from a judgment of the Circuit Court of Arlington County. Hon. William L. Winston, judge presiding. 1 Affirmed. t 1 Ira M. Lechner (Lechner and Butsavage, P.C., on brief), for , ii appellants. c,,, Jerry K. Emrich (Walsh, Colucci, Malinchak, Emrich and i I i; Lubeley, on brief), for appellees. i , £ 1 THOMAS, J., delivered the opinion of the Court. c ±f Michael C. Natrella and others, residents of Shirlington House 1 sa Apartments in Arlington, appeal a decision of the trial court i which upheld a ruling by the Board of Zoning Appeals of Arling- c �v- ton County (the Board) granting the application of the owners of 24 Shirlington House (the Owners) for certain zoning variances 1 g which would permit them to convert Shirlington House from i r n rental apartments to condominiums. All the evidence was Bevel- c n oped in the proceeding before the Board. The trial court based its i ruling upon the certified record of proceedings from the Board and i.'' upon argument of counsel. < • On appeal, Natrella makes three assignments of error, all based N on sufficiency of the evidence. He contends there was insufficient i evidence on the following issues: t t A. Whether the inability to convert to the condominium form of ownership constituted an undue hardship. 2 B. Whether any such undue hardship was shared generally r by other properties in the same zoning district and the same vicinity. d C. Whether the granting of the variance would be of sub- u stantial detriment to adjacent property or would change the , character of the zoning district. 1 In essence, Natrella submits that the trial court did not have suffi- t cient evidence to make the findings required by Code § 15.1- Appeals Natrella v. Board of Zonir1ppeals 453 g pp 231 Va. 451 (1986) re land use impact was also 495(b) as a prerequisite to granting a variance. In our opinion, ice would not result in a sub- Natrella's assignments of error are without merit. Therefore, we hange in the character of the will affirm the judgment of the trial court. The facts are these: Shirlington House was built in the early 1960s. At the time it was built, it was thought to be in compliance suit Court of Arlington _ with all then-existing zoning requirements. The height of the c presiding. building is 10 stories and 88.4 feet; in 1962, this height clearly conformed to then-existing regulations. According to the Owners, Affirmed. the building is located on 347,356 square feet of land. In 1962, however, a building with the number of exng at age, P.C., on brief), for Shirlington House would have needed a total landunits area ofisti 352,800 square feet. In 1962, this discrepancy was not noticed by the zon- Nalinchak, Emrich and ing authorities because several different figures for land area were in the record and all appeared to exceed requirements. However, based upon the Owners' acreage figure, the building was slightly if the Court. out of conformity with the 1962 density requirement. $ Further, a garage at Shirlington House was set back, at one ants of Shirlington House point, only 24.2 feet from the property line instead of the 25 feet '• cision of the trial court required by the zoning ordinance in effect at the time of the appli- 1, toning Appeals of Arling- cation for variance. Also, two freestanding signs were set back plication of the owners of 11.6 feet and 12 feet, respectively, instead of the required 15 feet. 1 certain zoning variances Finally, one curb cut was 57 feet wide instead of 30 feet wide as Shirlington House from required. 1 the evidence was devel- Though the building was essentially in conformity with the zon- The trial court based its ing ordinance in place at the time it was built, as that ordinance ;dings from the Board and was amended, the building conformed less to the ordinance's re- quirements. As a result, by 1981, when the Owners applied for the mments of error, all based variances, the building height could not be brought into conform- °nds there was insufficient ity without removing the top four stories and 28.4 feet. Nor could the required density be achieved without acquiring 50,000 addi- tional square feet of land or eliminating certain apartment units. rt to the condominium In a report to the Board, the Zoning Administrator stated that due hardship. _ all of the requested variances were for existing conditions and no ip was shared generally new construction was involved in any of the requests. The Zoning tg district and the same Administrator recommended that the variances be granted on con- dition that the density of the building — that is, the number of riance would be of sub- units in relation to the total land area — be brought into compli- -ty or would change the ance with the 1962 zoning ordinance. At a hearing before the Board, the Owners' representative testi- fied that it was the Owners' desire to convert Shirlington House to ia didCode § 15.1- , the condominium form of ownership. He pointed out that the re- requiredtour 454 Natrella v. Board of Zoni,ig Appeals 231 Va. 451 (1986) { quested variances would merely "confirm conditions which have existed over the past 19 years." He noted that a strict application in, of the zoning ordinance would prohibit "the identical use of the if '>, property but under a different form of ownership." He also stated ch. 1 that there is "a considerable difference in value between property co used in a rental mode and property which can be sold to individ- pu ual purchasers in a condominium mode." co With regard to whether the hardship described by the Owners nc was shared by others, their representative said the hardship was nc not so shared because Shirlington House was the "only building of its size and zoning category" in the particular area. Further, he ; rc testified that there would be no substantial detriment to adjacent I re 4 •" property "because the existing use of the building will simply be 5 continued. The building will be maintained and continue to exist. "sue No major renovations are planned for the structure." In response an cxi to questions from the Board, the witness reiterated that there were or( ;* no structural changes being made to the building that required the ha. I a variances. .r, The testimony from the tenants and their representative was es- sip •< sentially that the variances should not be granted because the con- us& rr'�'a version of Shirlington House to condominiums would result in the eel 520 ;� loss of housing for the elderly and for those on moderate incomes. vai :E. The tenants' representative argued that pursuant to Code § 15.1- th( •^ 495, the Board was required to consider the public interest before th, .i granting a variance and that it would not be in the public interest it\ ' to grant the variances. More specifically, he stated that "it is not in the public interest of the citizens of this community to lose the Bo moderate-income housing; to have the elderly displaced." ,� The tenants' representative also questioned whether the Owners thr had established any hardship. He urged the Board to review the in Owners' financial records. He suggested that if the Owners were ref making a profit renting the building then there was no hardship. tor He also suggested that the question of condominium conversions fro was of a recurring nature and that the matter should be before the rs County Board of Supervisors as opposed to the Board of Zoning es Appeals. He suggested further that the variances would result in a ren detriment to the land use plan of the community because the c th u building did not meet density requirements. He described the re- quest for variances as the "grossest case" that ever had come ! before the Board because it involved "[f]our stories and 50,000 sq. me ft." vai N. ning Appeals Natrella v. Board of Zor, _, Appeals 455 )86) 231 Va. 451 (1986) irm conditions which have Other witnesses amplified the general theme of losing moderate- ed that a strict application income housing and housing for the elderly. One witness said that ,t "the identical use of the if the building is converted to condominiums there will be a ownership." He also stated change in the character of the people living there in that the new : in value between property condominium owners will demand more room for tennis and other rich can be sold to individ- purposes. That witness said there will be increased land use with e." conversion to the condominium form of ownership. Another wit- p described by the Owners ness said that denial of a "desire" to convert to condominiums did itive said the hardship was not amount to confiscation of the Owners' property. se was the "only building of The Owners' representative then stated that the 1962 density )articular area. Further, he requirements would be met. This would be done by eliminating ,nrial detriment to adjacent some units. the building will simply be ained and continue to exist. The Zoning Administrator answered questions from the Board the structure." In response and said that the building's height complied with the 1962 zoning • is reiterated that there were ordinance and that the 57-foot-wide curb cut did not present a a ie building that required the hazard. s The Chairman of the Board commented that the freestanding i. their representative was es- signs had not caused any trouble in the 18 years they had been in li be granted because the con- use. The Vice-Chairman then told the audience that social con- rniniums would result in the cerns were not to be addressed by the Board in deciding on the ii those on moderate incomes. variances. He explained that the Board operated under the au- it pursuant to Code § 15.1- thority of Code § 15.1-495. Then he remarked: "We are giving er the public interest before them permission only to have their building declared in conform- not be in the public interest ity as it was in 1962." The variances were granted. lly, he stated that "it is not The case was appealed to the circuit court, which affirmed the I this community to lose the Board's decision. In a letter opinion, the trial court stated that it • elderly displaced." was of opinion that the representations and submissions made to :stioned whether the Owners the Board were "sufficient to permit that body to make its findings ;ed the Board to review the in the granting of the use permit." The trial court made specific ted that if the Owners were ' reference to Code § 55-79.43 stating that pursuant to that statu- then there was no hardship. tory provision "a condominium may not be treated differently of condominium conversions from a physically identical project under a different form of own- ership."matter should be before the ership." The trial court then pointed out that "[i]t must be used to the Board of Zoning remembered that no structural changes are contemplated except e variances would result in a those relatively minor ones imposed by the Board. The structure he community because the and its appurtenant use to the land will remain unchanged." ments. He described the re- case'.' that ever had come In a statement of facts signed by the trial court, the court com- '[f]our stories and 50,000 sq. mented on the Owners' argument in support of their request for variances. The court wrote as follows: • • a 'i 456 Natrella v. Board of Zoning Appeals 231 Va. 451 (1986) 7 , The Defendants did not argue that a difference in value, alone, justified the variance. The major argument advanced was that the use of land would be unreasonably restricted if the owners could not convert to the condominium form of ownership since the conversion would not cause an additional land use impact with regard to zoning nonconformities. The Defendants argued that this unreasonable restriction on the use of land was an undue hardship. [1] At the outset it is important to note the posture of this case on appeal.-Natrella appeals an adverse ruling of the trial court which affirmed an adverse ruling of the Board. The decision of the -.4 Board carried with it the presumption of correctness. The burden . was upon Natrella, at the trial court, to overcome the presumption := and to establish that the Board erred. See Bd. of Zoning App. v. 13 O'Malley, 229 Va. 605, 331 S.E.2d 481 (1985). In this appeal, the burden is upon Natrella to overcome the presumption of cor- rectness accorded both the decision of the Board and that of the In .,r, trial court. See Fairfax County v. Jackson, 221 Va. 328, 334, 269 :4 S.E.2d 381, 385 (1980); Loudoun Co. v. Lerner, 221 Va. 30, 34, rr 267 S.E.2d 100, 103 (1980). That burden is a difficult one and r' ' was not met by Natrella. i it Natrella's argument on his first assignment of error is essen- -, tially in two parts. He contends first that the wrong test was ap- rn plied in determining undue hardship. He next contends that there was no evidence adduced on the issue of undue hardship. We disagree. Natrella relies principally upon Packer v. Hornsby, 221 Va. 117, 267 S.E.2d 140 (1980), for the proposition that in order to prove undue hardship a party seeking a variance must establish "a hardship approaching confiscation" and that use of the land will be "effectively prohibited or unreasonably restricted." Natrella ar- gues that the thrust of Packer is that "a hardship does not exist when the property can be utilized in a reasonable manner under existing zoning regulations." From this premise he argues that be- cause Shirlington House is returning a profit as a rental apart- ment complex, no hardship exists that would support the grant of a variance. Natrella misunderstands the test that applies in deter- . mining unnecessary hardship. ' [2] To determine the test for granting variances, we look to Code § 15.1-495(b). There it states that a zoning board is author- 1 ing Appeals Natrella v. Board of Zoni. Appeals 457 1 36) 231 Va. 451 (1986) a difference in value, ized to grant variances where "owing to special conditions a literal jor argument advanced enforcement of the provisions will result in unnecessary hardship." (reasonably restricted if The balance of subsection (b) defines unnecessary hardship. It is condominium form of written in the disjunctive and says: "effectively prohibit" the use not cause an additional of the property; or "unreasonably restrict the use of the property;" ig nonconformities. The or "where the board is satisfied . . . that granting of such vari- ,nable restriction on the ance will alleviate a clearly demonstrable hardship approaching confiscation." Subsection (b) then goes on to set forth the findings the board must make in order to grant a variance. ote the posture of this case 9 An analysis of Code § 15.1-495(b) shows that Natrella is wrong e ruling of the trial court to suggest that the only way to establish unnecessary hardship is Board. The decision of the to prove "a clearly demonstrable hardship approaching confisca- of correctness. The burden tion." Nor do the cases from this Court support that conclusion. overcome the presumption - Contrary to Natrella's contentions, neither Packer nor Bd. of See Bd. of Zoning App. v. Zoning App. v. Bond, 225 Va. 177, 300 S.E.2d 781 (1983), sup- 81 (1985). In this appeal, ports his argument. In Packer, we analyzed subsection (b) and ne the presumption of cor- pointed out that "unnecessary hardship" was defined in the dis- the Board and that of the junctive. We noted there that "an applicant [must] show the exis- son, i. 221 Va. 328, 334, 269 tence of at least one of several `special conditions' which would ;; v. Lerner, 221 Va. 30, 34, cause compliance with a zoning ordinance to result in an `unneces- :rden is a difficult one and sary hardship.' " 221 Va. at 121, 267 S.E.2d at 142 (quoting Tidewater Utilities v. Norfolk, 208 Va. 705, 710-11, 160 S.E.2d ; signment of error is essen- 799, 802 03 (1968)) (emphasis added); See Bond, 225 Va. at 180, hat the wrong test was ap- 300 S.E.2d at 782. Proof of an unreasonable restriction on the use --le next contends that there of the property can, standing alone, establish unnecessary hard- ue of undue hardship. We ship. See Board of Zoning Appeals v. Fowler, 201 Va. 942, 114 S.E.2d 753 (1960). rcker v. Hornsby, 221 Va. Natrella contends further that whatever the proper test, there proposition that in order to was no evidence at all of any hardship to the Owners except a a variance must establish "a statement by the Owners' attorney that the differential in value of Id that use of the land will the property between rental use and sale of condominiums was so tbly restricted." Natrella ar- great as to constitute "a hardship unreasonably restricting the use t "a hardship does not exist of the property or a hardship approaching confiscation." Natrella a reasonable manner under submits that because there was no evidence of hardship, the trial s premise he argues that be- court's decision must be based on a "determination that the in- a profit as a rental apart- ability to convert to condominiums is a hardship per se." Natrella t would support the grant of argues that if the ruling was based on a per se determination of he test that applies in deter- hardship, then the trial court ignored the provisions of Code § 55- 79.43. Natrella explains further that in reliance upon Code § 55- nting variances, we look to 79.43, the trial court erroneously concluded the variance should be lat a zoning board is author- granted so long as there would be no structural changes in the 458 Natrella v. Board of Zoning Appeals 231 Va. 451 (1986) A building and its appurtenant use to the land will remain unchanged. [3] With regard to sufficiency of evidence of unnecessary hard- ship, the Owners submit that there was sufficient evidence to es- tablish unreasonable restriction on the use of their property. They point to two items of proof. First, they contend they established that the property was more valuable when converted to the condo- minium form of ownership than when used as rental property. The Owners submit that Azalea Corp. v. City of Richmond, 201 Va. 636, 112 S.E.2d 862 (1960), permits such proof. In Azalea Corp., the corporation owned 40 acres of land with 8.2 acres lying in the City of Richmond and the balance in Hen- on, rico County. The corporation sought to develop a shopping center. iy It wanted to build access roads across the land lying in Richmond •s to serve the commercial facility which would be built on the bal- co ance of the land in the County. The strip of City land was zoned `•g residential. The City refused to grant a variance. We reversed. 1 :i One issue was whether the trial court should have excluded evi- Jo dence that the land was more valuable with the access and less ;1 p1 valuable without it. We wrote as follows on that point: :s Sp The authorities generally agree that financial loss, stand- :E ing alone, cannot establish an extraordinary or exceptional F� situation or hardship approaching confiscation sufficient to Cnjustify the granting of a variance of a zoning regulation, but ; it is a factor or an element to be taken into consideration 1 and should not be ignored. Id. at 641, 112 S.E.2d at 866 (emphasis added). We are of opin- ion that if evidence of relative value of property is relevant to the issue of hardship approaching confiscation, it is likewise relevant to the issue of unreasonable restriction on the use of property. We emphasize, however, what we said in Azalea Corp., that is, such financial evidence standing alone cannot establish unreasonable restriction on use. The trial court properly considered the financial impact that would be occasioned by denying the variances. The Owners' second element of proof of unreasonable restric- tion on use stems from the effect of Code § 55-79.43. The 1975 version of Code § 55-79.43 provides, in pertinent part, as follows: No zoning or other land use ordinance shall prohibit condo- miniums as such by reason of the form of ownership inher- 1! toning Appeals Natrella v. Board of Zoig Appeals 459 ---... s 1986) 231 Va. 451 (1986) to the land will remain ent therein. Neither shall any condominium be treated dif- ferently by any zoning or other land use ordinance which vidence of unnecessary hard- would permit a physically identical project or development ,vas sufficient evidence to es- under a different form of ownership. No subdivision ordi- e use of their property. They nance in any county, city or town in the Commonwealth shall iey contend they established- apply to any condominium or to any subdivision of any con- when converted to the condo- vertible land, convertible space, or unit unless such ordinance used as rental property. The is by its express terms made applicable thereto. Nevertheless, City of Richmond, 201 Va. counties, cities and towns may provide by ordinance that pro- such proof. posed conversion condominiums and the use thereof, which owned 40 acres of land with do not conform to the zoning, land use and site plan regula- ond and the balance in Hen- tions of the respective county or city in which the property is to develop a shopping center. located, shall secure a special use permit, a special exception, s the land lying in Richmond or variance, as the case may be, prior to such property be- :h would be built on the bal- coming a conversion condominium. strip of City land was zoned nt a variance. We reversed. (Emphasis added.) This provision is part of the Condominium rt should have excluded evi- Act. ble with the access and less ' As the trial court stated, "The major argument advanced was lows on that point: that the use of land would be unreasonably restricted if the own- ers could not convert to the condominium form of ownership since that financial loss, stand- the conversion would not cause an additional land use impact with traordinary or exceptional regard to zoning nonconformities." The Owners' counsel was confiscation sufficient to asked during oral argument to articulate the unreasonable restric- of a zoning regulation, but tion on his client's property. He responded as follows: e taken into consideration The unreasonable hardship is that the conversion of the prop- erty to a condominium of the same structure, the same num- iasis added). We are of opin- ber of units will not have a land use impact. And it is unrea- of property is relevant to the - sonable to prohibit a change in the form of ownership when cation, it is likewise relevant the conversion will not have a land use impact. m on the use of property. We n Azalea Corp., that is, such i He went on to add that the difference in value is also a factor. annot establish unreasonable 3 There is a sharp dispute between the parties concerning the way )perly considered the financial in which Code § 55-79.43 bears upon the application for vari- denying the variances. ances. Natrella argues the statute does not change traditional goof of unreasonable restric- concerning the grant of variances. According to him, the Code § 55-79.43. The 1975 proof requirements of Code § 15.1-495 are unaffected. Thus, Na- in pertinent part, as follows: trella submits, the fact that there will be no land use impact does nothing to prove unnecessary hardship because the lack of land lance shall prohibit condo- use impact has never been recognized as a way of proving e form of ownership inher- hardship. 460 Natrella v. Board of Zoning Appeals , 231 Va. 451 (1986) Natrella argues on brief that Code § 55-79.43 requires that a variance be secured before a condominium conversion can take place. He contends that if the inability to convert to condomini- ums is a hardship per se, then there would have been no need for the provision. He argues that through Code § 55-79.43, the Gen- eral Assembly "did not create any different or less stringent re- quirements for obtaining a variance . . . for a condominium con- version than are specified in Code § 15.1-495(b) for obtaining a variance . . . in garden-variety zoning and land use cases which do not involve condominium conversion." 1 Natrella's argument concerning the impact of Code § 55-79.43 `� is deficient in several respects. First, the Owners do not contend that § 55-79.43 means that any time a conversion is contemplated c1 and a variance is requested the variance must be granted. The r Owners' argument is not that inability_to convert to condomini- urns amounts to a hardship per se,'They contend that where a building has lawfully operated as an apartment as a nonconform- a 1�� ,, " ing use and where the only change in the building will be in the :� ( r form of ownership and that change will have no land use impact, 3 rr `. then given the language of Code § 55-79.43, it would be unreason- 52 able to restrict the property to use as rental property. 1 ?g 4 H Second, Natrella, on brief and in oral argument, consistently 4 r 1 i ignored the language at the beginning of the statute prohibiting i rAtoir different treatment for a "physically identical project or develop- ` € ment under a different form of ownership." He focused his entire argument on the latter portion of the statute which says localities 1 may require variances for proposed condominium conversions r which do not conform to zoning and other requirements. This ap- t proach fails to give effect to all the language in the statute. Third, when pressed, Natrella's counsel argued that the purpose c of Code § 55-79.43 is to provide that when a building is switched from rental property to use as a condominium, it must be brought t "up to code, to snuff, in terms of existing zoning and land use u regulations." When asked whether that meant that property oper- h ating as rental apartments could never be converted to condomini- o ums counsel responded that such property could be converted if g brought into conformity with existing law. The obvious defect in 7 this last argument is that if a piece of property is brought into § conformity with existing zoning laws, then no variance will be si needed and Code § 55-79.43 would not come into play at all. d, 1 Zoning Appeals Natrella v. Board of Zoning Appeals 461 (1986) 231 Va. 451 (1986) xde § 55-79.43 requires that a Were we to accept Natrella's reading of Code § 55-79.43, we lominium conversion can take would have to either ignore a portion of that statute or ignore the bility to convert to condomini- statute in its entirety. We cannot do either. As we said in Jones v. e would have been no need for Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984), a case in- igh Code § 55-79.43, the Gen- volving statutory interpretation: y different or less stringent re- e . . . for a condominium con- The rules of statutory interpretation argue against reading § 15.1-495(b) for obtaining a any legislative enactment in a manner that will make a por- 'ning and land use cases which tion of it useless, repetitious, or absurd. On the contrary, it is rsion." well established that every act of the legislature should be the impact of Code § 55-79.43 read so as to give reasonable effect to every word and to pro- rst, the Owners do not contend mote the ability of the enactment to remedy the mischief at ne a conversion is contemplated which it is directed. variance must be granted. The :bility__to convert to condomini- We reject Natrella's argument that Code § 55-79.43 has no effect upon Code § 15.1-495(b). se f They contend that where a an apartment as a nonconform [4] The Owners argue that Code § 55-79.43 is meant to prevent '� =e in the building will be in the discrimination against condominiums where the only difference ;e will have no land use impact, from other buildings is the form of ownership. The Owners fur- '` 55-79.43, it would be unreason- ther argue that the statute clearly contemplates conversion of,e as rental property. ex- isting structures. The Owners contend, in essence, that to give ef- fect to Code § 55-79.43, zoning boards should consider each in oral argument, consistently nning of the statute prohibiting I condominium conversion individually and determine whether granting a variance to permit a conversion would result in a land ally identical project or develop- use impact. The Owners suggest that where the conversion to con- vnership." He focused his entire dominiums has an adverse land use impact the variances may not the statute which says localities be granted. But in a case such as this, it would be an unreasonable >osed condominium conversions restriction on the use of the property to say that it can be owned tnd other requirements. This ap- and used for rental purposes but the identical structure with no [he language in the statute. attendant changes in land use impact cannot be owned and sold as. counsel argued that the purpose condominiums. We agree. that when a building is switched In order to give eT ect-to Code § 55-79.43 and § 15.1-495(b), condominium, it must be brought the former must be read to impact upon the latter and to bear of existing zoning and land use upon what must be established in order to prove unnecessary r that meant that property oper- hardship. That the two statutes must be read in harmony is an never be converted to condomini- outgrowth of the rule that every legislative enactment must be n property could be converted if given full effect unless it is impossible to do so. That Code § 55- Isting law. The obvious defect in 79.43 impacts upon what is required to secure a variance under Jiece of property is brought into § 15.1-495(b) stems from the rule of construction that a specific laws, then no variance will be statutory provision takes precedence over a general provision ad- uld not come into play at all. dressing the same subject. 462 Natrella v. Lard of Zoning Appeals 231 Va. 451 (1986) Code § 55-79.43 says a "physically identical project or develop- ment" should not be treated differently for zoning purposes based on its being owned as a condominium as opposed to some other form of ownership. Thus, the latter portion of that statute which, by implication, incorporates the provisions of § 15.1-495(b), in- corporates those provisions only in such manner that they do not impair the protection against discrimination accorded condomini- ums in the opening sentences of § 55-79.43. The result is this: Where a project is physically identical it is accorded special pro- tection under § 55-79.43. When the Owners of such a project ap- ply for a variance, if the physically identical project proves to have no impact upon land use — the thing which zoning is aimed at 'a protecting — then there is no reason not to grant the variance. Stated differently, where a project or development is physically identical, where its impact on land use is the same, and where the variance requested is to confirm existing legally permitted noncon- formities, then it is an unreasonable restriction on the use of that property to deny its owner the right to convert to condominiums. :i With regard to Natrella's first issue, he failed to meet his bur- 1.ri den of proof that the evidence was insufficient to establish undue Sohardship. In our view, the evidence was sufficient. - [5] There is plainly no merit to Natrella's second assignment of cl error which states that the evidence was insufficient to support the rn finding that the hardship to the Owners' property was not shared generally by other properties in the same zoning district and the same vicinity. In his report to the Board, the Zoning Administra- tor made this statement: "Since this is the only building of this size and zoning in the area, the hardships are not shared generally by other properties in the same vicinity." In addition, the Owners' representative testified before the Board as follows: "[T]his is the only building of its size and zoning category in this area." Na- trella's evidence did not dispute this. There was sufficient evidence to support the finding that the hardship was not generally shared. [6] Nor does Natrella's third assignment of error have merit. In our view, under the circumstances of this case, proof that the con- version would have no adverse land use impact plainly establishes that granting the variances would not result in substantial detri- ment to the adjacent property or result in a change in the charac- ter of the district in which the property is located. • 3 honing Appeals Natrella v. Board of Zon.__a Appeals 463 (1986) 231 Va. 451 (1986) y identical project or develop- For all the foregoing reasons, the judgment of the trial court tly for zoning purposes based will be affirmed. im as opposed to some other portion of that statute which, Affirmed. visions of § 15.1-495(b), in- uch manner that they do not nination accorded condomini- 55-79.43. The result is this: aal it is accorded special pro- Owners of such a project ap- lentical project proves to have ng which zoning is aimed at )n not to grant the variance. or development is physically se is the same, and where the . Ling legally permitted noncon- restriction on the use of that to convert to condominiums. ue, he failed to meet his bur- insufcient to establish undue was sufficient. atrella's second assignment of was insufficient to support the ners' property was not shared same zoning district and the Y` oard, the Zoning Administra- s is the only building of this ;. ships are not shared generally ;ity." In addition, the Owners' )ard as follows: "[T]his is the category in this area." Na- There was sufficient evidence ;hip was not generally shared. ;nment of error have merit. In , f this case, proof that the con- r' use impact plainly establishes lot result in substantial detri- ;ult in a change in the charac- )erty is located. 0 THE LAW OFFICES OF McCLU RE, CALLAGHAN, CARTER & ATKI NS SUITE 200 415 FOURTH STREET, N.E. P.O. SOX 1333 CHARLOTTESVILLE,VIRGIN IA 22902 TELEPHONE M.CLIFTON M°CLURE March 18 , 1993 (804)9773221 ROSERT M.CALLAGHAN RICHARD E.CARTER TELECOPIt* D. MICHAEL ATKINS (804)977-5190 GREGORY M.JOHNSON Ms. Amelia G. McCulley Zoning Administrator County of Albemarle 401 McIntire Road C harp + to v 1 le Va_ 22902 Re: BZA VA-92-37 Dear Amelia: I met with Duane Ramm recently concerning the requirements in your letter to him of December 9, 1992 . Mr. Ramm indicated that he had discussed the situation concerning the central well with you and that he has been told by the Health Department that their approval is not needed. As he indicated, this well has been in existence for a number of years and has served all of the dwellings that are currently on the properties. He is proposing to reduce the number of residences which use the central well by four to six units. This would entail drilling approximately three more wells which would serve a maximum of two residences each, those wells only needing Health Department approval and not Engineering. As far as I can tell, there is nothing else that he needs to do in regards to the central well system that is already in place. I would appreciate you reviewing this situation and letting me know if I am correct in the above assumption. �r Ricard E. Carter REC/asw cc: Duane Ramm REcV.1150 MAR 22 1993 ALBFM RLE COUNTY .ZONING DEPARTMENT DECLARATION OF RESERVE DRAINFIELD EASEMENTS THIS DECLARATION, made this 15th day of March, 1993 , by DUANE RAMM, Declarant. WITNESSET H: WHEREAS, Declarant owns certain real estate in Albemarle County, Virginia, more particularly described on a plat of Roger W. Ray & Assoc. , Inc. , dated September 16, 1992 , said plat attached hereto and made a party hereof, as Lots 1 through 9, inclusive; and WHEREAS, Declarant desires to provide easements for reserve drainfield areas for Lots 2 , 5 and 9 ; THEREFORE, Declarant does hereby GRANT to Lot 2 , an easement across so much of Lot 3 as shown on the attached plat and designated as "Septic Drainfield Easement for Lot 2" ; an easement for Lot 5 across Lot 6 as shown on said plat and designated as "Septic Drainfield Easement for Lot 5" ; and an easement for Lot 9 across Lot 8 as shown on said plat and designated as "Septic Drainfield Easement for Lot 9" . The owner of the each dominate lot shall have a right to enter the servient lot over the above-referred easements for maintenance, repair and use of said easements as is necessary. Any damage done to the servient lot in exercising this easement will be repaired by the owner of the dominate lot. No structures may be built or placed in the aforesaid easements . The aforesaid easements are private easements between the owners of said lots and will not be maintained by the County of Albemarle. IN WITNESS WHEREOF, Declarant has caused his name to be signed to this instrument. (SEAL) DUANE RAMM STATE OF VIRGINIA CITY/COUNTY OF , to-wit: The foregoing was acknowledged before me this day of , 1993 , by DUANE RAMM. My commission expires: Notary Public RAMM.EAS 2