HomeMy WebLinkAboutVA200600001 Review Comments 2006-03-01 COUNTY OF ALBEMARLE
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MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Greg Kamptner,Deputy County Attorney
DATE: March 1,2006
RE: Sears; Variance No. 2006-001
One of the three findings the BZA must make under Virginia Code § 15.2-2309(2)and Albemarle County
Code § 34.2 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 Sears' property. There is an existing house
on the property that was constructed in 1955. The Sears' could abandon their expansion project,correct the
basement dampness problem another way, and still have a reasonable beneficial use of their property. See,
Cochran. In the alternative, the second story expansion could be completed without the front porch, which in turn
would eliminate the need to encroach into the setbacks and, again, correct the basement dampness problem
another way. See, Cochran.
The County acknowledges the personal reasons the Sears' have to construct the porch—to address a
basement dampness problem and to have an aesthetically pleasing house. However,no physical conditions on the
property or adjacent properties have been identified that constrain the Sears' use of the property to the extent that
an undue hardship exists. The basement's dampness results from a condition of the house, not a physical
condition of the property itself. Even assuming for the sake of argument that the front porch for which the
variance is sought would eliminate the dampness in the Sears' basement,there is no evidence that the dampness
problem could not be resolved another way without a variance.
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, and a serious personal need for the proposed modification, are all irrelevant to the issue of
undue hardship. While the front porch may meet the Sears' desires and be aesthetically pleasing, it is not relevant
to the finding of undue hardship.
The Sears 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. Sears
,,�melia McCulley