Board of Supervisors Meeting Date:

Planning Commission

 February 18, 2010

Staff Lead:


Andrew Hushour, Assistant Zoning Administrator

Community Development



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

Topic Description: 

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.


Requested Action of the Board of Supervisors:

Conduct a public hearing and consider adoption of the attached Ordinance.

Staff Report:


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.



The Planning Commission initiated this proposal at their regularly scheduled meeting held on December 9, 2009. A public hearing for the text amendment was held on January 28, 2010, and the Planning Commission unanimously recommended approval of the amendment to the Board of Supervisors.

Financial Impact Analysis:

No financial impact analysis has been conducted.


Identify any other Departments, Organizations or Individuals that would be affected by this request:


Board of Zoning Appeals

Office of the County Attorney


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