A Zoning Ordinance Text Amendment to Article 2, General
Regulations, Article 3, District Regulations, Article 5,
Special Permits and Special Exceptions, Article 6, Accessory
Uses, and Article 13, Administration, Amendments, Violations
and Penalties, of the Fauquier County Zoning Ordinance
Relating to Variances Granted by the Board of Zoning Appeals
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On March 27, 2009, Virginia HB 2326, relating
to Boards of Zoning
Appeals (BZA) and standards by which variances can be
granted, was signed into law with an effective date of July
1, 2009. This bill amended VA
§15.2-2309
to change the standard by which a variance can be granted by
a Board of Zoning Appeals by eliminating the requirement for
a showing of hardship “approaching confiscation.” The
purpose of this amendment is to update the current Zoning
Ordinance provisions to comply with the current Virginia
Code, and to reduce the authority of the Zoning
Administrator to grant such variances. |
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Background
Prior to July 2009, under the
Virginia Code a BZA could approve a variance only if the
applicant could demonstrate that there was a hardship
"approaching confiscation" that necessitated the variance.
In April 2004, the Virginia Supreme Court decision in
Cochran v. Fairfax County Board of Zoning Appeals
emphasized the limited powers of BZAs when making findings
in a request for variance. In Cochran and related
decisions, the Court interpreted Virginia statutes to allow
variances only when strict application of a zoning ordinance
would be unconstitutional, resulting in, or amounting to, a
governmental taking of property rights. The impact of this
decision was far reaching, resulting in the denial of
virtually all variance cases by BZAs in local governments
throughout the state.
In order to provide
flexibility in the existing regulatory requirements in light
of Cochran, the General Assembly responded by
amending the Virginia Code in 2006 to allow zoning
administrators to grant exemptions under standards different
than the traditional variance standards. The County, as
well as many local governments throughout Virginia, adopted
provisions under this new Virginia Code section allowing
deviations from the physical requirements of the zoning
ordinance to be approved administratively by the Zoning
Administrator. Pursuant to these existing regulations, the
Zoning Administrator has the authority to grant
modifications “from any provision contained in the Zoning
Ordinance with respect to physical requirements on a lot or
parcel of land, including but not limited to size, height,
location or features of or related to any building,
structure, or improvements.”
On March 27, 2009, Virginia HB
2326 was signed into law; this bill amended the Virginia
Code regarding variances by deleting the phrase “approaching
confiscation” found in §15.2-2309. Under the new provision,
a BZA need only find that the variance "will alleviate a
clearly demonstrable hardship." In practice, the former
standard made the BZA process for a variance an act of
futility but this revised standard allows the BZA process to
better alleviate burdens that the Board finds may be
unfairly imposed by the strict application of zoning
ordinances.
Proposed Amendments
The purpose of this amendment
is to update the current Zoning Ordinance provisions to
comply with the current Virginia Code, consolidating the
authority for granting variances to the Zoning Ordinance to
the BZA via the variance process, and reducing the
now-overlapping Zoning Administrator authority for granting
such variations. A review of the proposed text amendment
language is as follows:
1. Section 13-402 is amended to allow the BZA to grant
variances under a lesser hardship standard consistent with
the new Virginia Code language; specifically, the standard
that the hardship must approach confiscation is
eliminated. Section 2-505, related to variances for corner
lots, will also be amended to restore the authority for
granting such a waiver to the BZA rather than the Zoning
Administrator.
2. Section 13-406, which grants the Zoning Administrator
the broad authority to allow variations under a lesser
hardship standard is eliminated, as this authority will be
granted to the BZA. Under the proposed revisions, Section
13-406 will allow the Zoning Administrator the limited
authority to grant a variance to minimum yard requirements
only when the error and/or encroachment does not exceed more
than 10% of the required setback. This is the authority
that existed in the Zoning Ordinance before the amendment
that occurred on April 13, 2006 in response to the Cochran
decision.
3. Section 6-105, related to setback requirements for
barns, will also be amended to remove all language
specifying that a reduction in setback may be approved in
certain cases through the special permit process. Any future
requests for setback reductions would require variance
approval, thereby making the application of variances
consistent throughout the Zoning Ordinance.
4. Sections 3-324 and 5-2401, related to increases in
height, are proposed for deletion. The increases that
currently may be approved by the Zoning Administrator (an
increase in height up to 40 feet for residential dwellings
in the RC/Rural Conservation and RA/Rural Agriculture zoning
districts with the provision of increased setback of two (2)
feet for every additional foot of height) will be by-right
if the specified standard is met, and therefore, this
increase is relocated to the footnotes for height limits in
Article 3. All other increases in height would require
variance approval. |