At present, the Zoning Ordinance permits the Zoning
Administrator and the Board of Zoning Appeals to grant
variances to the minimum yard requirements in the case of
any building existing or partially constructed which did not
comply with such requirements applicable at the time such
building was erected. Statutory authority for such
variances has always been questionable; the door was closed
on such variances when the Virginia Supreme Court decided
Cochran v. Fairfax County Board of Zoning Appeals in
July 2004. In that opinion, the Virginia Supreme Court
emphasized that the General Assembly intended that variances
be granted only in cases where application of zoning
restrictions would appear to be constitutionally
The General Assembly responded by amending the Virginia Code
to allow zoning administrators to grant exemptions under
standards different than the traditional variance standards.
That Code section is attached and forms the underlying basis
for this text amendment.
This amendment would remove from the Fauquier County Zoning
Ordinance the variance authority based upon mistake. It
would then vest in the Zoning Administrator authority to
grant exemptions from any provision contained in the Zoning
Ordinance with respect to minimum lot width, minimum lot
frontage, and minimum setback requirements, with the written
finding that: (a) the strict application of the ordinance
would produce undue hardship; (b) such hardship is not
shared generally by other properties in the same zoning
district and the same vicinity; and (c) the authorization of
the modification will not be of substantial detriment to
adjacent property and the character of the zoning district
will not be changed by the granting of the modification.
The Board of Zoning Appeals would retain its traditional
authority for processing other variances.
proposed text amendment was initiated by the Planning
Commission on December 7, 2005. The Planning Commission
recommended adoption of this Ordinance on January 26, 2006.