Posted on 01/13/2009 12:12:13 PM PST by Lorianne
Shortly after homeowner Herbert Harris started to build a wheelchair ramp for his wife and an extra bedroom for his ill daughter, he learned of the violations.
Harris lacked permits for the projects, which violated city regulations. So he applied to the Board of Zoning Appeals for a variance, or an exception to zoning rules. At last week' s board meeting, he got the variance, as did eight other property owners.
But afterward, Kay Wilson, a city attorney, made a plea to the board's seven members.
"Gotta know what the hardship is. Please," she said, a trace of strain in her voice.
Wilson pressed members to explain the hardship - the legal rationale for granting the variance in the Harris case. A hardship-in-zoning law is supposed to refer to a specific defect of a piece of property, not the circumstances of its owner.
"The hardship was, we're sympathetic," board member Joan Wright said.
"Sorry. Not good enough," replied Wilson, who never did hear a legal-hardship explanation for the case.
In November, a Circuit Court decision raised the legal threshold for granting variances. Establishing "undue hardship" - the justification for making exceptions - had become increasingly important.
City staffers recommended that all the variances heard Wednesday be denied because they didn't meet the new standard.
Welcome to the imperfect world of the Board of Zoning Appeals, where folks who want to build an addition, a deck or a porch become intimately familiar with the maze of city zoning laws, and where 18 inches can mean the difference between keeping or losing your new shed.
Members of the zoning appeals board are appointed to five-year terms by the City Council and essentially act as a panel of judges. They enforce the code while allowing for common-sense flexibility and exceptions.
Some applicants come to the board after inheriting illegal structures when they purchased property. Others have made honest - or at least honest-sounding - construction mistakes. Some, such as Harris, make requests that are emotionally difficult to deny.
For years, the board has been lenient. In 2008, all but a handful of the 194 variance requests were granted.
B oard members now are under pressure to be more strict, after Circuit Court Judge William "Buster" O'Brien ruled in November that the "test is whether, without the variance, the owner loses the right to use the property in every meaningful way."
O'Brien overturned a variance granted to Choon Kim to build a pier after Kim's neighbor, Ted Gardner, sued the board and Kim.
"Does it kind of make us wake up a little more?" said Larry Stampe, a board member since 1999. "Yeah, sure it does."
O'Brien based his decision on a 2004 Supreme Court of Virginia decision that said variances may be granted only if denying the variance would "interfere with all reasonable beneficial uses of the property, taken as a whole."
Under that standard, var-iances should be extremely difficult to get, said Eddie Bourdon, a Virginia Beach lawyer who frequently appears before the zoning appeals board. None of the variances granted Wednesday met the court's standard, he said.
While state and local law requires the board to evaluate variance requests based strictly on land issues, such as shape or topography, board members often consider the personal situations of the owners - especially if neighbor s aren't complaining.
"If there's no opposition, they go into a more human mode," said Karen Lasley, the city's top zoning official.. "It's a human board, and they're dealing with people. But you can't get variances based on the human factor. That's classic land-use. We're all struggling very much with that."
In the final case heard by the board Wednesday, property owners Joe and Osa Simone asked for a variance to keep
a fence they installed too close to the road and without a permit.
The faux wrought-iron fence was put up to contain the family's two German shepherds that had been the subject of complaints.
The Simones' lawyer, Billy Garrington, argued that the fence is attractive, buffered by pleasing landscaping and should be allowed to remain because it's not the kind of fence the city's zoning ordinance is trying to prevent. Two neighbors testified how much they like the fence.
Board members agreed the fence was nice. But was that enough to approve it?
"We need to determine what the hardship is for the record," Stampe said. "This is not easy. I actually think that fence looks good, but it's not legal."
Wright suggested the hardship could be the safety issue created by unrestrained dogs, but other board members noted that hardships must relate to the land, not conditions created by the property owners.
Stampe made a motion to deny the fence variance. It failed 5-2.
"Where is the hardship pertaining to the land?" he then asked. "I haven't heard any argument on this."
Board member Harry Purkey Jr. made a motion to approve the fence. He said the hardship was the topography in the back of the property, where it backs up against a canal. Topography is a justification for variances listed in state code. He didn't explain what that had to do with the fence. The motion passed 5-2.
Purkey, an attorney who joined the board in 1996, declined to discuss specific cases, citing the 30-day appeal period for decisions, but said, "When a court renders an opinion, it takes those who are subject of the opinion time to understand the opinion and apply it."
Wilson explained the fence variance, "They found that could be described as a hardship. They are all human beings who have their own definition of hardship."
No zoning. No HOA. No problems in my neighborhood.
Of course this same city attorney would sue a busniess that did not have a wheelchair ramp for customers.
They need to turn the process on its head. There should be a requirement to show a SPECIFIED legitimate government interest (which is properly understood to be synonymous with legitimate PUBLIC interest) for the passage of any zoning laws, and variance should be automatic if the specifics of the proposal don’t create a clear conflict with the SPECIFIED legitimate government interest.
What the heck is the government’s interest in prohibiting a fence that the homeowners want and that all the immediate neighbors like? And the wheelchair ramp? Ummm, aside from the obvious lack of legitimate government/public interest in prohibiting a person confined to a wheelchair from having safe and convenient access to their home, don’t we have some ADA issues here?
Exactly.
“That which is not specifically forbidden is allowed”; instead of: “That which is not specifically allowed is forbidden”, which has permeated our society on a nation-wide level.
In the very rare areas where there is really NO zoning, either there are problems, or the area is out in the middle of nowhere and it’s just a matter of time before a problem develops. If you buy a pretty fixer-upper home on a few acres of rural land, fix up the home over many years, while the apple orchard you planted for future income has just started bearing fruit, and you’re just settling in to relax and enjoy the idyllic home that you worked so hard for, it’s a problem if commercial hog operation moves in next door and puts its waste lagoon right up against your property line, or if a factory producing cinderblocks sets up next door, generating huge amounts of noise and dust, as big trucks come and go all day, on the driveway right up against your property line.
There IS a legitimate government/public interest in encourage people to invest in their properties, and as far as residential or retail or office-based business uses are concerned, this entails providing a reasonable degree of certainty that the area will continue to have the same general uses as when you bought it, and not have some noisy or dirty operation suddenly crop up and scare customers away from the stores and offices, and make homeowners want to move away only to find they can no longer sell their property for even half what they invested in it. Nobody will build a shopping center in a location where there’s nothing preventing a hog waste lagoon from going in next door a year or two later.
Hardship something that causes or entails suffering or privation.
Gotta agree with you on that one.
I can have a fence but it can only be 3 feet high on the front and sides, the back can be higher. The ordinance only applies to me and a small per-cent of property owners, those with corner lots. It makes sense to me, I don't want or need a taller fence anyway but a taller one would obstruct the vision of drivers turning onto or from my street.
I knew that when I bought my house and made sure I familiarized myself with the zoning laws.
I have a large lot directly across the street from a park that is full of oak trees, every Autumn I get a boat load of leaves from there, I don't complain, I just rake and blow and burn, (burning yard waste is allowed).
My neighbor however, is constantly moaning about the township, "ought to be mulching those leaves before they blow on to our property". He's no liberal by any stretch and I point out his faulty thinking. He's a good Joe about it all though and that's good because his name is Joe.
Couldn't ask for a better neighbor.
What gets me is that businesses which don’t need or want wheelchair ramps have to install them for total strangers, While homeowners are prevented from installing them for family members.
Huh?
However, it was a big giveaway to developers because it allowed them to build in greater density than the zoning for that area allowed, without going for a variance. In essence it allowed the developer to build the McMansions, but prevented the old home next door from competing.
In my neighborhood, a developer was allowed to build 13 MM when zoning R3,should have only allowed 9, with no variance.
It also allowed smaller lot size, 30% smaller setbacks.
This whole thing was not about variances, but rather about giving developers right to build without having to deal with those pesky variances, and preventing competition from existing homeowners.
“Nobody will build a shopping center in a location where there’s nothing preventing a hog waste lagoon from going in next door a year or two later”
or a noisome, bleating liberal.
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