Va. Beach presses zoning board to follow stricter standard

VIRGINIA BEACH

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."

Aaron Applegate, (757) 222-5122, aaron.applegate@pilotonline.com