Construction Law Insights

Krevskop v. Town Council (In re July 17, 2017 Decision of the Bd. of Zoning Appeals), 2020 Va. Cir. LEXIS 101 (Faifax Cnty. Cir. July 24, 2020)

Julia Kreyskop and Brian Joseph Buyniski (“Petitioners”) live at a home in Vienna, Virginia that was located at the corner of Scott Circle Southwest and Cottage Street. Vienna Town Code § 18-33.E requires the following setbacks: (i) 12’ on side yards bordering other buildings or dwellings; (ii) 25’ on side yards bordering a street; (iii) 35’ rear yards; and (iv) 25’ front yards. Petitioner have a rear deck. The left portion of the deck encroaches into the rear yard setback by 7.4 feet, but was permissible because taxes were paid on it in excess of 15 years. The Petitioners requested a variance so they could replace the right-hand portion of the deck with an enclosed 12.3’x14’ screened porch, which would encroach 10.8’ into the rear yard setback. In Petitioners’ application for a variance, they noted that the house was built diagonally on the lot in 1959, the lot is wider than it is deep, the corner of the house closest to the rear property line was 35.7’ away from the property line, and the other sides of the house would either violate the setback requirements or be challenging due to existing gas, cable, power lines, and other easements. On July 17, 2019, a public

hearing was held on Petitioners’ variance application. On July 19, 2019, the Board of Zoning Appeals of the Town of Vienna, Virginia (“BZA”) entered an order denying Petitioners’ request (“First BZA Order”). The Petitioners appealed to circuit court. On January 20, 2020, the Court remanded the matter to the BZA to provide clarification on the basis or bases of its rejection of Petitioners’ variance application. The BZA held a second hearing on February 19, 2020 and issued a Supplemental Order of Clarification (“Supplemental Order”) on March 3, 2020 again denying Petitioners’ variance application. Per the Court’s remand order, Petitioners filed a Memorandum in Response to the BZA’s Supplemental Order on May 26, 2020 and the Town of Vienna filed a Supplemental Response to Petitioners’ Petition for Judicial Review on May 27, 2020. The Court reversed the BZA’s decision pursuant to Virginia Code § 15.2-2314.

The Court found by a preponderance of evidence that the BZA erred in its decision regarding its first conclusion of law that the enforcement of the rear yard setback would not unreasonably restrict the utilization of the property because a screened in porch was a convenience and mosquitos in Vienna is common, but many homes do not have screened porches. The BZA’s reliance on the fact that the house had been occupied for 60 years without a screened porch was unjustified because there could be any number of reasons for why a prior homeowner did not seek a variance to build a screened porch. Also, the BZA did not address the Petitioner’s compelling evidence that the strict application of the setback requirements would unreasonably restrict the utilization of the property because of the presence of utilities coupled with the configuration of the home. Finally, the presumption that the decision of a board of zoning appeals is correct assumes that the board considers the variance in the context of the particular homeowner and not based on historical use of the dwelling by previous homeowners.

The Court found that the BZA did not err in its decision as to its second conclusion of law that the Petitioners failed to demonstrate that the variance would alleviate a hardship due to a physical condition relating to the property at the time of the effective date of the ordinance.

The BZA’s third conclusion of law stated that the condition or situation of the property (i.e. mosquitos prompting a desire for a screened porch) was a general or recurring nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance, but the ordinance had not been amended. Virginia Code § 15.2-2309 prescribes five requirements that must be found in addition to the unreasonable restriction or hardship requirements for a variance: (1) the property interest for which the variance is being requested was acquired in good faith and any hardships was not created by the application for the variance; (ii) the granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of the geographical area; (iii) the condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance; (iv) the granting of the variance does not result in a use that is not otherwise permitted on such property or a change in the zoning classification of the property; and (v) the relief or remedy sought by the variance application is not available through a special exception process that is authorized in the ordinance pursuant to subdivision 6 of Virginia Code § 15.2-2309 or the process for modification of a zoning ordinance pursuant to subdivision A of Virginia Code § 15.2-2286 at the time of the filing of the variance application. The BZA did not dispute that Petitioners satisfied (i), (ii), (iv), and (v), but claimed Petitioners had not satisfied (iv). While the need for the variance was based on encroaching into the rear setback, the need had to be understood in the context of (1) a corner lot, (2) the diagonal footprint of the house, (3) on a lot that was wider than deep, (4) where expansion on the left side of the house was impracticable due to utilities, (5) expansion on the right side of the house would be impossible due to the 25’ setback requirement, and (6) the screened porch would replace an existing deck. In this context, the Court found by a preponderance of evidence that the condition or situation of the property concerned was not so general or recurring in nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance.

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