Virginia Variances in Doubt

Recent actions by the Supreme Court of Virginia and the state legislature have put the viability of variances into question in Virginia.

By Timothy R. Hughes, Esq.

Virginia law regarding variances from zoning ordinances is in doubt. A 2004 decision by the Supreme Court of Virginia reversed actions by three localities granting variances and the Court imposed a harsh standard of review. The state legislature has responded, however its impact may grant no new flexibility to local officials.

Variances defined

Under Virginia law, local governing bodies have broad latitude to define zoning requirements in their jurisdiction. By statute, local authorities also have the right to grant a variance from applicable zoning requirements, where imposing the strict terms of the zoning ordinance would result in "undue hardship". Cases defining undue hardship tied the standard to an applicant, establishing that application of the zoning ordinance would amount to a constitutional "taking" of the property and thus rule out virtually any economically viable use of the property.

Modern Practice and the Supreme Court's Pronouncement

As certain areas in Virginia have become more crowded, in-fill development has become far more common. Cramped space translates to a greater potential for conflicts with setback requirements. Local boards of zoning appeals (BZA) started granting variances more readily than in the past to accommodate this type of development and to allow owners greater latitude in changing existing homes.

The Virginia Supreme Court recently heard three unified appeals to actions by BZAs. Rather than recognizing the reality faced by development in the increasingly dense urban and suburban settings, the Supreme Court again restated its previous ruling that one needed to demonstrate a constitutional taking level of impact to property to support the granting of a variance. [Cochran v. Fairfax County Board of Zoning Appeals].

One important factor is that Virginia law, under Dillon's Rule, states that localities only have the powers expressly granted by the General Assembly. Thus, if the local authorities exceed the express definition of granted powers, they have acted in an unlawful fashion and their action can be overturned by the courts. The Supreme Court found that local authorities had the ability to grant variances. Under Dillon's Rule, that power was limited to the statutory test of undue hardship and thus a constitutional takings.

Recent Legislative Response

In its recent 2005 session, the General Assembly passed amendments to the variance statute in apparent reaction to the Cochran case. The General Assembly statute changed a number of terms of the variance statute. For example, the amendments change the term from "variance" to "modification". Rather than limiting variances to building setbacks, "modifications" can now include all physical requirements for lots, including size, height, locations, or features. The amendments also set forth greater detail regarding the process and procedure of modifications and appeals.

The Law of Unintended Consequences

While the idea was to respond to the Cochran case and provide greater flexibility to local zoning officials, in reality the statute may provide little change or even do the exact opposite.

The statute kept the same threshold test to support a modification - undue hardship -- therefore it is likely a court reviewing a challenge will apply the same standards as the Cochran case.

In addition, the statute actually broadened the scope of matters facing the constitutional takings level review. While the statute permits new areas for modifications beyond setbacks, the same test still applies. Thus, the new amendments may have the unintended consequence of actually further limiting granting modifications if local zoning administrators and BZAs apply the constitutional level hardship required under applicable case law.

What to Do?

I advise against relying on a variance/modification for any project. The standard for obtaining such a modification is likely difficult to meet. In addition, even if your modification is granted, you may have opened the door to expensive and time consuming legal challenges to your project. At the end of the day, the chances of delay and ultimate reversal are relatively high due to the legal standard you need to meet. As such, you must use discipline and proper due diligence and avoid having to rely on variances/modifications for your project to be viable in the current statutory and legal climate of Virginia.

Timothy R. Hughes, Esq., is the principal of the Northern Virginia law firm of Hughes & Associates, P.L.L.C. He specializes in construction litigation, corporate and business related representation, and complex civil litigation. He may be reached at tim@hughesnassociates.com, or by phone at (703) 671-8200.