Setback variance to build screened porch approved

Respondent’s board of zoning appeals incorrectly denied petitioners a setback variance to replace a deck at their residential home with a screened porch.

Background

Petitioners own a home on a corner lot in Vienna, Virginia. The lot is wider than it is long and the home sits diagonally on the lot. It is about 250 feet from a stream in a nearby park. Petitioners state that their yard is almost unusable due to large numbers of mosquitoes. There is a deck in the back of the house. Petitioners wish to replace a portion of it with a screened-in porch that would encroach on the property’s rear setback requirement by 10.8 feet.

Because of the home’s footprint, setback requirements and the lot configuration, petitioners state that it is impossible to make expansions to the right side of the house due to setback requirements, and impractical to do so on the left side because all the utilities servicing the home are located there. They further state adjoining property owners have no objection to their plans.

Petitioners sought to obtain a setback variance to build the porch. The Vienna Zoning Board of Appeals denied the petition. Petitioners sought judicial review. The court remanded the matter to the BZA to clarify the reasons for the denial. On remand, the BZA again denied the request.

The BZA provided three conclusions of law to support its denial. The matter is again before the court for judicial review.

Discussion

The BZA erred in respect with its first conclusion of law. The BZA said petitioners could still reasonably use their property without a variance for the porch because the house has been occupied for 60 years without a screened porch. The BZA said that the porch would be a convenience and that many homes in Vienna do not have such porches.

“The fact that the house has been occupied for sixty years without a screened porch does not, however, justify the conclusion that the current homeowners are not unreasonably restricted in their utilization of the home.”

There are many reasons why prior owners may not have sought a variance to build a porch, including finances, the number of people in the home, or “lack of desire or interest of the prior homeowners to spend time in a screened porch, or even the fact that the homeowner would have to go through the variance process in order to add a screened porch to the house. …

“The fact that no variance has previously been sought is not proof that no variance is now warranted. If it were otherwise, it would be hard to see how any variance could be granted.”

The BZA has not addressed the “compelling evidence” that strictly applying the setback requirement “would unreasonably restrict utilization of the property.” This evidence includes the fact that all of the home’s utilities would have to be rerouted to add an addition to the one area of the property that would be allowed under the setback requirements.

The BZA’s second conclusion of law, that even if the rear wall of the house were parallel to the rear property line, the proposed porch would encroach on the setback, is correct.

The third conclusion of law is that petitioners’ situation is no different than many other Vienna homeowners, who would like to expand their homes with a screened porch to avoid mosquitoes but cannot do so because of setback requirements. As a result, the BZA concluded, the issue should be dealt with by amending the zoning ordinance rather than granting a variance.

Under Code § 15.2-2309, “in addition to the unreasonable restriction or hardship requirements when granting a variance[,]” there are five other requirements that must be met. The one at issue in this case is that “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.”

The BZA sees the condition or situation of petitioners’ property solely as a 35-foot setback, which other property owners must contend with as well. But this is not a “fair view” of petitioners’ circumstances. Petitioners also have a corner lot, a diagonal house footprint on a lot that is wider than deep, impractical expansion opportunities on one side of the house and a setback requirement on the other and a propose porch that would replace a portion of an existing deck.

This is not a general or recurring situation that could be remedied by amending the zoning ordinance.

Reversed. The court orders that the variance be granted.

Kreyskop, et al. v. Town Council of Vienna, Case No. CL-2019-11361, July 24, 2020; Fairfax County Cir. Ct. (Bellows) Julia Kreyskop, Brian Buyniski, pro se petitioners, Steven D. Briglia for respondents. VLW 020-8-074, 11 pp.