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HomeMy WebLinkAboutVA199500019 Correspondence 1995-11-27 RECEIVED NOV 3O 1995 Chapman & Jenkins Attorneys at Law A �"=t IY 501 Faulconer Drive, Suite 2-B ZONINGDEPARTMENT' Charlottesville, Virginia 22903-4980 Christine C. Chapman Telephone(804)296-4998 Barbara S. Jenkins Fax(804)296-9647 November 27, 1995 Amelia G. McCulley, Zoning Administrator County of Albemarle 401 McIntire Road Charlottesville, VA 22902-4596 Re Steele v. Fluvanna County Dear Ms McCulley: Enclosed please find a full copy of the above case for your files. I will discuss the need for a legal discussion of the undue hardship criteria with my clients as well as whether or not they wish me to be at the hearing to address any legal questions the board members may have. Thank you for your call. Very truly yours, \(.) Barbara S. Jenkins Enclosure cc: Mr. and Mrs. Charles C. Leake lt.lea3 436 S.E.2d 453, 246 Va. 502, Steele v. Fluvanna County Bd. of Zoning Appeals, (Va. 1993) Page 1 246 Va. 502 On review in trial court, decision of board of zoning appeals is presumed to be correct. James E. STEELE, et al. v. 3. ZONING AND PLANNING k605 FLUVANNA COUNTY BOARD OF ZONING 414 ---- APPEALS, et al. 414X Judicial Review or Relief 414X(C) Scope of Review Record No. 930196. 414X(C)1 In General Supreme Court of Virginia. 414k605 Decisions of boards or officers Nov. 5, 1993. in general. Owners of property adjacent to property of builders [See headnote text below] of home appealed zoning board decision granting builders exception to residential side yard setback 3. ZONING AND PLANNING k621 requirement. The Circuit Court, Fluvanna County, F. 414 ---- Ward Harkrader, Jr., J., affirmed. Owners of 414X Judicial Review or Relief adjacent property appealed. The Supreme Court, 414X(C) Scope of Review Keenan, J., held that evidence was insufficient to 414X(C)1 la General demonstrate existence of unnecessary hardship 414k619 Matters of Discretion entitling builders, who violated residential side yard 414k621 Decisions of boards or officers setback requirement after relying on location of utility in general. markers in locating house, to variance from requirement. Va. 1993. Trial court's review of decision of board of zoning Reversed; judgment entered for owners of appeals is limited to determining whether board has adjacent property. applied erroneous principles of law or, where board's discretion is involved, whether decision is plainly 1. ZONING AND PLANNING k494 wrong and in violation of purpose and intent of zoning 414 ---- ordinance. 414IX Variances or Exceptions 414IX(A) In General 4. ZONING AND PLANNING k538 414k492 Hardship, Loss, or Injury 414 ---- 414k494 Necessity of showing. 414IX Variances or Exceptions 414IX(B) Proceedings and Determination Va. 1993. 414k537 Weight and Sufficiency of Under statute limiting authority of boards of zoning Evidence appeals to grant variances, applicant for variance not 414k538 Architectural or structural only must show existence of at least one of several designs. special conditions which would cause compliance with zoning ordinance to result in unnecessary hardship, Va. 1993. but also board of zoning appeals must tind that three Evidence was insufficient to demonstrate existence tests enumerated by statute are satisfied. Code 1950, of unnecessary hardship entitling homeowners, who Sec. 15.1-495, subd. 2. violated residential side yard setback requirement after relying on location of utility markers in locating 2. ZONING AND PLANNING k676 house, to variance from requirement; location of 414 ---- markers was not situation or condition of property 414X Judicial Review or Relief under applicable statute, and hardship, if any, was 414X(C) Scope of Review self-inflicted in that placement of improvements on 414X(C)3 Presumptions property was within control of homeowners and their 414k676 Decisions of boards or officers contractor. Code 1950, Sec. 15.1-495, subd. 2. in general. 5. ZONING AND PLANNING k495 Va. 1993. 414 ---- Copyright©West Publishing Co. 1995 No claim to original U.S. Govt. works. Page 2 436 S.E.2d 453, 246 Va. 502, Steele v. Fluvanna County Bd. of Zoning Appeals, (Va. 1993) 414IX Variances or Exceptions Monticello subdivision of Fluvanna County, adjacent 414IX(A) In General to a vacant lot owned by James E. and Dorothy A. 414k492 Hardship, Loss, or Injury Steele. Thereafter, the Garretts entered into a 414k495 What constitutes in general. contract with Raintree, Inc. to build a house on their lot. Va. 1993. Reference, in statute limiting authority of boards of The Lake Monticello Owners' Association zoning appeals to grant variances, to "situation or (Association) told Raintree that it could assume that condition of such piece of property" which would the front corners of the lot were located where the effectively prohibit or unreasonably restrict utilization telephone pedestal and the water meter had been [246 of property in absence of variance, is to natural Va. 504] placed. Accepting this representation physical characteristics of property itself, not to without obtaining a *455 survey of the property, monuments placed on property. Code 1950, Sec. Raintree built the house relying on these markers, 15.1-495, subd. 2. which had been located incorrectly. G ANDPLANNING k494After r the house asbuilt, ' 6. ZONING ._ o s was in order .o obtain 414 ---- permanent financing for the property, the Garretts 414IX Variances or Exceptions commissioned a survey, which revealed that the house 414IX(A) In General was located in violation of the County's 10-foot side 414k492 Hardship, Loss, or Injury yard setback requirement. The survey showed that 414k494 Necessity of showing. the north corner overhang of the Garretts's house was approximately eight inches from the Garrett-Steele Va. 1993. property line. Nevertheless, the Garretts proceeded to General Assembly's intent, that variances be settlement on the loan. Approximately two years granted only where application of zoning restrictions later, they filed their application for a variance. would appear to be constitutionally impermissible, is demonstrated by extraordinary conditions defining After conducting a hearing on the Garretts's "unnecessary hardship" listed in statute limiting application for a variance to reduce the side yard authority of boards of zoning appeals to grant setback from the required 10 feet to zero feet, the variances. Code 1950, Sec. 15.1-495, subd. 2. BZA voted on April 2, 1991, to approve the variance, *454 [246 Va. 503] Charles R. Jaeger, for finding that a "hardship" existed because, without a appellants. variance, the Garretts would have to move at least part of the house in order to comply with the side yard Frederick W. Payne, County Atty., for appellee setback requirement. Bd. of Zoning Appeals of Fluvanna County. The Steeles filed a petition for a writ of certiorari George H. Dygert, for appellees Tony L. Garrett in the trial court, seeking a review of the BZA's and Kathleen K. Garrett. decision. After issuing the writ and conducting a hearing, the trial court r mar ded the case to the BZA, [246 Va. 502] Present: All the Justices. requesting that it clarify its finding as to "whether the variance at issue in this cause will result in substantial [246 Va. 503] KEENAN, Justice. damage to adjoining property owners." The trial court also remanded the matter for "such other In this appeal, we consider whether the trial court specific findings of fact as the [BZA] may choose to erred in upholding a decision of the Board of Zoning make." (FN1) Appeals of Fluvanna County (BZA) that authorized a variance from a residential side yard setback On remand, without taking any further evidence, requirement. the BZA adopted a resolution on April 16, 1992, concluding that the Garretts had demonstrated: In July 1990, Tony L. and Kathleen K. Garrett submitted their application for a variance to the BZA. (a) That the strict application of the ordinance In 1988, the Garretts had purchased a lot m the Lake would produce undue hardship; Copyright©West Publishing Co. 1995 No claim to original U.S. Govt. works. Page 3 436 S.E.2d 453, 246 Va. 502, Steele v. Fluvanna County Bd. of Zoning Appeals, (Va. 1993) (b) That such hardship is not shared generally such variance will alleviate a clearly demonstrable by other properties in the same zoning district and hardship approaching confiscation, as distinguished the same vicinity; from a special privilege or convenience sought by the applicant, provided that all variances shall be in (c) That the authorization of the variance harmony with the intended spirit and purpose of the sought by the applicant will not be of substantial ordinance. detriment to adjacent property and that the character of the district will not be changed by the [246 Va. 506] [1] In addition, Code Sec. granting of the variance; and 15.1-495(2) limits the authority of boards of zoning appeals to grant variances by requiring that specific [246 Va. 505] (d) That the condition or findings be made prior to the granting of any situation of the property concerned is not of so variance. Pursuant to that section, a board of zoning general or recurring a nature as to make reasonably appeals can grant a variance only upon finding: practicable the formulation of a general regulation to be adopted as an amendment to the ordinance[.] (a) That the strict application of the ordinance would prcduce u::J :e hardship. r• The trial court then upheld the BZA's decision, finding, among other things, that it was supported by (b) That such hardship is not shared generally the evidence and was not plainly wrong or based on by other properties in the same zoning district and the application of erroneous principles of law. This the same vicinity. appeal followed. (c) That the authorization of such variance will The Steeles argue that the trial court erred in not be of substantial detriment to adjacent property finding the evidence presented was sufficient to and that the character of the district will not be demonstrate the existence of an unnecessary hardship, changed by the granting of the variance. as required by Code Sec. 15.1-495(2). That section, which sets forth the powers and duties of boards of Therefore, in accordance with these statutory zoning appeals to grant variances, enables such boards requirements, "not only must an applicant show the to authorize a variance upon concluding that it "will existence of at least one of several 'special conditions' not be contrary to the public interest, when, owing to which would cause compliance with a zoning special conditions a literal enforcement of the ordinance to result in an 'unnecessary hardship,' but [applicable zoning] provisions will result in the board of zoning appeals must find that the three unnecessary hardship." enumerated tests are satisfied." Packer v. Hornsby, 221 Va. 117, 121, 267 S.E.2d 140, 142 (1980); see Code Sec. 15.1-495(2) further details the also Riles v. Board of Zoning Appeals, 246 Va. 48, circumstances under which a variance may be 51-52, 431 S.E.2d 282, 284(1993). granted: [2][3]On review in the trial court, the decision of a When a props rty owner can :,how that his board of owing appeals is presumed to he correct. property was acquired in good faith and where by Masterson v. Board of Zoning Appeals, 233 Va. 37, reason of the exceptional narrowness, shallowness, 44, 353 S.E.2d 727, 732-33 (1987). The trial court's size or shape of a specific piece of property at the review is limited to determining whether the board has time of the effective date of the ordinance, or applied erroneous principles of law or, where the where by reason of exceptional topographic board's discretion is involved, whether the decision is conditions or other extraordinary situation or plainly wrong and in violation of the purpose and condition of such piece of property, or of the intent of the zoning ordinance. Id.; Packer, 221 Va. condition, situation, or development of property at 120, 267 S.E.2d at 141. immediately adjacent thereto, the strict application of the terms of the ordinance would effectively [4]In the present case, the Steeles argue that there prohibit or unreasonably restrict the utilization of was no evidence before the BZA that the size, shape, the property or where the board is satisfied, upon or topography of the Garretts's lot, or any special the evidence *456 heard by it, that the granting of conditions relating to immediately adjacent property, Copyright©West Publishing Co. 1995 No claim to original U.S. Govt. works. Page 4 436 S.E.2d 453, 246 Va. 502, Steele v. Fluvanna County Bd. of Zoning Appeals, (Va. 1993) would, as required by Code Sec. 15.1-495(2), property. See Place v. Board of Adjustment, 42 N.J. effectively prohibit or unreasonably restrict their use 324, 200 A.2d 601, 602-05 (1964). of the property or create a hardship approaching confiscation. In response, the Garretts contend that Second, the evidence demonstrates that the the evidence was sufficient to meet the statutory hardship, if any, was self-inflicted. The placement of requirements for a variance because the width of the the improvements on the property was within the lot was only 100 feet and the [246 Va. 507] utility control of the Garretts and their contractor, Raintree. markers were misplaced on the property through no As *457. this Court stated in Alleghany Enterprises, fault of their own. They conclude that these facts Inc. v. Board of Zoning Appeals, 217 Va. 64, 69, 225 demonstrate the existence of an unnecessary hardship, S.E.2d 383, 386 (1976), a self-inflicted hardship, since the north end of the house would have to be whether deliberately or ignorantly incurred, provides removed in order to comply with the ordinance. We no basis for the granting of a variance. See also disagree with the Garretts and the BZA. Board of Zoning Appeals v. Combs, 200 Va. 471, 477-78, 106 S.E.2d 755, 759(1959). As the BZA concedes, th r evidence shows that it would have been possible to build the improvements [.1 ;n addition, the extraordinary conditions listed without violating the ordinance if the measurements in Code Sec. 15.1-495(2), which, in effect, define had been made from the actual lot lines, rather than "unnecessary hardship," demonstrate the General from the utility markers. Therefore, in support of Assembly's intent that variances be granted only their argument that an unnecessary hardship was where application of zoning restrictions would appear proved, the Garretts and the BZA are left only with to be constitutionally impermissible. Packer, 221 Va. the evidence that the utility markers were misplaced, at 122, 267 S.E.2d at 142. Manifestly, a self and that the Association misinformed Raintree inflicted hardship cannot be the cause of a constitutional deprivation of a landowner's rights. concerning the Garretts's right to rely on the accuracy of the location of those markers. [246 Va. 508] For these reasons, we conclude that the trial court erred in upholding the decision of the [5] We hold that these facts are insufficient to BZA. Accordingly, we will reverse the trial court's demonstrate the existence of an unnecessary hardship. judgment and enter final judgment in favor of the First, the location of markers on a piece of property is Steeles. not a "situation or condition of such piece of property," within the meaning of Code Sec. Reversed and final judgment. 15.1-495(2). These terms, as employed in the statute, FN1. Based on our holding in this case, we express no refer to the natural physical characteristics of the opinion as to whether the trial court had authority to property itself, not to monuments placed on the issue this order of remand. Copyright©West Publishing Co. 1995 No claim to original U.S. Govt. works.