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Public welfare includes character of neighborhood

Virginia Lawyers Weekly//March 9, 2023

Public welfare includes character of neighborhood

Virginia Lawyers Weekly//March 9, 2023

Where county supervisors denied appellant’s special exemption request to rent bedrooms in his house after determining the proposed use would harm the public welfare, the determination correctly included consideration of the neighborhood’s character.


Appellant Harris bought a house on a two-acre parcel, improved it and sought to rent individual bedrooms. The zoning code allowed two such rentals. Any more required a special exemption, which would authorize up to five rental bedrooms.

The Albemarle County board of supervisors may grant a special exemption request if abutting property owners received notice and “‘upon consideration of the following: (i) There is no detriment to any abutting lot; and (ii) There is no harm to the public health, safety, or welfare.’ …

“After renovating the property … Harris applied for a special exception to use the property as a homestay, but without the owner living on-site.

“This arrangement is not allowed by the County’s zoning code, and Harris withdrew his request. He then submitted another special exception request, this time pursuant to the zoning code, requesting permission to rent out five guest rooms while living on the property.”

Ultimately, the board denied the request after considering a staff report. “The staff reported two factors against granting the request.

“First, the area is residential and not recommended for commercial/tourism development in the master plan.

“Second, the number of homestay rooms requested is not in character with the surrounding neighborhood. The staff ultimately recommended that the Board should deny the request because the increase in rooms ‘could result in additional activity on the property that could impact abutting neighbors.’ Namely, the staff was concerned about noise, traffic, and outdoor activity.”

Harris appealed to the circuit court, which affirmed the board’s decision.

Argument on appeal

Albemarle County Ordinance No. 19-18(6) requires consideration of two factors: harm to abutting lots and no harm “‘to the public health, safety, or welfare.’ …

“Harris argues that the ordinance limited the Board to consideration of the two enumerated factors and that the circuit court acted improperly by allowing the Board to consider the character of the neighborhood as a component of ‘the public welfare.’”

Statutory scheme

“The statutory scheme behind the ordinance is instructive. Local ordinances must derive their authority from a validly enacted state law. …

“Here, the enabling statute is Code § 15.2-2280, which empowers localities to enact zoning ordinances. In conjunction is Code § 15.2-2283, which describes the purposes that zoning ordinances may further.

“This statute directs that ‘[z]oning ordinances shall be for the general purpose of promoting the health, safety or general welfare of the public’ and lists twelve purposes that may be considered by municipalities when enacting zoning ordinances. …

“These purposes include facilitating the creation of a ‘convenient, attractive and harmonious community’ and ‘reduc[ing] or prevent[ing] congestion in the public streets.’ …

“This means that under Code § 15.2-2283, creating convenient, attractive, and harmonious communities is a component of the public health, safety, and welfare.

“And because Code § 15.2-2283 is part of the statutory enabling scheme for the ordinance at issue here, it follows that the same definitions should be used in the statute and the ordinance. It is logical to interpret ordinances consistent with their enabling schemes. …

“It is clear that when zoning administrators consider the character of the area as part of their analysis, that consideration falls within the umbrella of their duty to create convenient, attractive, and harmonious communities.

“Thus, when the Board and their staff considered the character of the area, they properly considered it as part of the public welfare. We reject Harris’s argument that the Board strayed outside the enumerated factors by considering the character of the neighborhood.”

Constitutional ordinance

Harris argues the ordinance is unconstitutionally vague. “He contends that the statute’s reference to ‘general welfare’ does not put landowners on notice that the Board may consider the character of the neighborhood when considering special exception requests. …

“The proper question is whether ‘the statutes and the zoning ordinance involved here contain sufficient guidelines to enable the governing body of [Albemarle] County to exercise effectively its legislative function of granting or denying use permits under the ordinance.’ Byrum v. Bd. of Supervisors of Orange Cnty., 217 Va. 37, 44 (1976)[.] …

Byrum establishes three factors to consider when determining whether a zoning ordinance is constitutional. … All three factors are met here.

“First, and most importantly, the Board is prohibited from acting in an arbitrary, capricious, or unreasonable manner and its decisions are subject to judicial review. …

“Second, the Albemarle County Code and the Virginia Code provide purposes that must guide the Board’s decision. …

“Last, the Board did not attempt to delegate its legislative powers to an administrative agency, so it was not required to promulgate rules for considering permits. … There is no reason for us to stray from the rules articulated in Byrum[.] … The Albemarle County ordinance is constitutional.”

Board’s decision

“To the extent that Harris argues the denial was unreasonable or arbitrary, he argues the neighborhood was not, as the public comments assert, quiet, private, and residential.”

We cannot “substitute our own judgment for the Board’s judgment. The circuit court found that the property in question is in a quiet neighborhood and that increased noise and traffic was a valid concern for the neighborhood.

“Based on these specific findings about the neighborhood, the circuit court found that the Board’s decision was supported by the evidence and not unreasonable. That was clearly not error.

“The public comments, the staff report, and the testimony at trial support this conclusion. Thus, even if we accept Harris’s argument that he introduced probative evidence of unreasonableness, we must still affirm the circuit court’s judgment that the decision whether to grant the special exception was at least ‘fairly debatable.’”


The Manors LLC, et al. v. Board of Supervisors of Albemarle County, Record No. 0513-22-2, Feb. 28, 2023. CAV (published opinion) (Callins). From the Circuit Court of Albemarle (Higgins). Evan D. Mayo for appellants. Andrew H. Herrick, Susan Baumgartner for appellee, VLW 023-7-092,15 pp.

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