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BZA denies Spruce Street variance
BY JAMES JACENICH • STAFF WRITER
MONTEREY - The Highland County Board of Zoning Appeals denied a request last Thursday for a setback variance from George Henderson for his house on Spruce Street, Monterey. Henderson wanted to add an equipment shed and roof extension that would have exceeded his side-yard setback.
"We have rules by which to grant a variance," said BZA chair Joe Brock. "It can't be a man-made hardship. County attorney Melissa Dowd wrote me a letter saying if I wanted to add to an existing structure, it could not be granted if it is livable as it is. She says if I want to put a garage on, I couldn't because the house is livable. That is a (state) Supreme Court ruling that can change as justices change.
"I take exception to this Jim Whitelaw accepting $100 for a variance this letter says we can't grant is robbing a man. It also puts us out of business. This letter says in very rare circumstances will it ever be granted."
"That's where the law is, as far as I understand it. That is now case law, which means you can grant variances, but if you donít stick to rules suggested by the Virginia Supreme Court, then we can be overturned," said Dowd. "The Hendersons have a house, a postage stamp piece of property that is already nonconforming, but that increases density for people around them. They don't have to have a shed to have a beneficialuse of their property."
"Let the county take a look, do some research and see what we can do about it," said Highland County board of supervisors chairman Jerry Rexrode.
The restriction on variances comes from the 2004 Supreme Court decision Cochran v. Fairfax County Board of Zoning Appeals. The court ruled that boards of zoning appeals may grant variances only if the applicant shows that the zoning ordinance interferes with all reasonable beneficialuses of the property, taken as a whole.
Some localities have found ways around the court decision by implementing special use permits, special exceptions and conditional use permits.
Land use and real estate law attorney Benjamin T. Danforth wrote in May 2007 edition of The Fee Simple newsletter (a semiannual publication of the Real Property Section of the Virginia State Bar) that in 2006, "Arlington and Fairfax counties passed legislation authorizing their BZAs to grant special exception permits to allow modifications to zoning ordinance setback requirements ... In both counties, the legislation reflectsa determination that, in reasonable circumstances, permitting modifications to setback requirements is acceptable and desirable public policy.
The BZA denied Henderson's request, but he may appeal the decision in court if he chooses.
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