HomeMy WebLinkAboutVA200500006 Review Comments 2006-01-05 COUNTY OF ALBEMARLE
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MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Greg Kamptner,Deputy County Attorney G�4
DATE: January 5,2006
RE: Sykes; Variance No. 2005-006
One of the three findings the BZA must make under Virginia Code § 15.2-2309(2)in order to grant a variance
is the finding that the strict application of the ordinance would produce an undue hardship. Undue hardship exists
where,because of a condition of the property or adjacent property: (1)strict application of the ordinance effectively
prohibits or unreasonably restricts the use of the property; or(2)without a variance,there is a clearly demonstrable
hardship approaching confiscation.
The requirement that an undue hardship be found means that the BZA may grant a variance only if"the effect
of the zoning ordinance,as applied to the piece of property under consideration,would,in the absence of a variance,
`interfere with all reasonable beneficial uses of the property taken as a whole."'Cochran v.Fairfax County Board of
Zoning Appeals,et al.,267 Va.756(2004). In considering variance applications,the Virginia Supreme Court in
Cochran instructed BZAs to proceed as follows:
The threshold question for the BZA in considering an application for a variance. . .is whether
the effect of the zoning ordinance upon the property under consideration,as it stands,interferes
with"all reasonable beneficial uses of the property,taken as a whole." If the answer is in the
negative,the BZA has no authority to go further.
The BZA's answer to the threshold question in this case must be"no"because the County's zoning regulations
do not interfere with all reasonable beneficial uses of the Sykes' property. There is an existing house on the property
and the Sykes' could abandon their expansion project and still have a reasonable beneficial use.See, Cochran. In the
alternative,the house could be expanded in ways other than in the manner desired by the Sykes without encroaching
into the setbacks.See, Cochran. Finally,no physical conditions on the property or adjacent properties have been
identified that constrain the Sykes' use of the property to the extent that an undue hardship exists.
The County acknowledges the compellmg personal reasons the Sykes' have for expanding their house(to
allow a relative to live with them). Standing alone,however,they are irrelevant to the BZA's mandate to find an undue
hardship. The Cochran court stated that the owners' desires,probable aesthetic improvements to the neighborhood as a
whole,a greatly increased expense to the owners if the plans were reconfigured to meet the requirements of the zoning
ordinance,the lack of opposition,or even support,of the application by neighbors,and a serious personal need for the
proposed modification,are all irrelevant to the issue of undue hardship. Some of these arguments have been raised by
the Sykes.
The Sykes have not demonstrated that an undue hardship within the meaning of Virginia Code§ 15.2-
2309(2)exists in this case and,therefore,their variance application should be denied.
Cc: Mr.and Mrs. Sykes
Amelia McCulley