HomeMy WebLinkAboutVA200800006 Legacy Document 2008-06-12 (5)COUNTY OF ALBEMARLE
MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Greg Kamptner, Deputy County Attorney:
DATE: May 30, 2008
RE: Variance 2008-006, Breckenridge
The request for a variance should be denied because any hardship in this case is self-inflicted. A self-
inflicted hardship typically exists when an owner violates a provision of the zoning ordinance and then seeks a
variance to provide relief from the unlawful act. Spence v. Board of Zoning Appeals for City of Virginia Beach, 255
Va. 116 (1998). That is exactly what happened in this case.
An undue hardship may not be self-inflicted. Steele v. Fluvanna County Board of Zoning Appeals, 246 Va.
502 (1993). In Steele, the owner's builder relied on a statement by the homeowners' association that the builder
could assume the property lines were indicated by certain utility markers. In fact, the utility markers were not on
the property lines and the house, when constructed, was only 8 inches from the property line instead of the
minimum 10 -foot side yard setback required by the Fluvanna County Zoning Ordinance. The Fluvanna County
BZA granted the variance and the Circuit Court affirmed. On appeal, the owners claimed that the utility markers
were misplaced and that the homeowners' association misinformed the builder regarding the owner's right to rely
on the accuracy of the location of those markers. In reversing the BZA and the Circuit Court, the Virginia Supreme
Court first held that there was no natural physical characteristic of the property that created an undue hardship, and
then held:
Second, the evidence demonstrates that the hardship, if any, was self-inflicted. The placement of
the improvements on the property was within the control of the Garretts and their contractor,
Raintree. As this Court stated in Alleghany Enterprises, Inc. v. Board of Zoning Appeals, 217 Va.
64, 69, 225 S.E.2d 383, 386 (1976), a self-inflicted hardship, whether deliberately or ignorantly
incurred, provides no basis for the granting of a variance. See also Board of Zoning Appeals v.
Combs, 200 Va. 471, 477-78, 106 S.E. 755, 759 (1959).
The Steele court went on to note that the extraordinary conditions of the property define "undue hardship"
and that these conditions demonstrated "the General Assembly's intent that variances be granted only where
application of zoning restrictions would appear to be constitutionally impermissible.... Manifestly, a self-inflicted
hardship cannot be the cause of a constitutional deprivation of a landowner's rights."
Any hardship in this case was self-inflicted. As the staff report states, a "house could have been built
without the need for a variance," but the "applicant chose to build the house in this location despite staff's advice
and without the necessary approval of a building permit." Staff Report, page 3. As the Steele case instructs, the
applicant also cannot rely on any alleged error of his contractor to justify the granting of a variance in this case.
Cc: Mr. Breckenridge