Home / Fulltext Opinions / Supreme Court of Virginia / SPENCE v. BOARD OF ZONING APPEALS FOR THE CITY OF VIRGINIA BEACH, ET AL.





January 9, 1998
Record No. 970351





A. Bonwill Shockley, Judge
PRESENT: All the Justices

In this appeal, we consider whether the trial court erred in
upholding a decision of a board of zoning appeals that authorized
a variance from certain residential setback and parking space

In 1989, Wayne Beagle purchased two lots in the Chesapeake
Beach area of the City of Virginia Beach. The lots, which were
platted in 1928, are zoned for R-7.5 use under the zoning
ordinance enacted by the City in 1988. This residential use
classification requires a minimum lot size of 7,500 square feet.

The two lots contain a total of 4,011 square feet and
constitute a triangular-shaped corner property that is subject to
a 30-foot zoning setback requirement on two of its three sides.
The parties agree that, due to the size and shape of the
property, a residential structure cannot be built on the property
unless a variance is obtained.

Beagle, a real estate developer, purchased the lots knowing
that their previous owner had been denied a variance to construct
a single residence on the lots. Beagle later applied to the Board
of Zoning Appeals for the City of Virginia Beach (the Board) for
a variance, submitting a site plan for a residential structure
that conformed to the applicable lot coverage restrictions. To
build the structure, Beagle needed a front yard setback variance
of 17 feet, a side yard setback variance of 17 feet, and a
reduction of parking space size. The Board granted Beagle’s
variance application.

Gordon Spence, alleging the status of an aggrieved property
owner, petitioned the trial court for a writ of certiorari to
review the Board’s decision. The trial court did not hear
evidence, but based its decision solely on the record before the
Board. Affirming the Board’s decision, the trial court ruled,
among other things, that the evidence supported the Board’s
findings made under Code ? 15.1-495.
Spence appeals from this decision.

Spence argues that Beagle did not meet his burden of proving
that he purchased the property in good faith because he acquired
the property at a low price, knowing that it could not be
developed without a variance. Spence also contends that any
hardship suffered by Beagle was self-inflicted, because he knew
the property was nonconforming when he purchased it. We disagree
with Spence’s arguments.

A board of zoning appeals may grant a variance if such grant
is not contrary to the public interest and if a literal
enforcement of the zoning ordinance will result in unnecessary
hardship to the property owner. Code ? 15.1-495(2). The
factors governing this process are further detailed in Code ? 15.1-495(2), which
permits the granting of a variance

[w]hen a property owner can show that his property was
acquired in good faith and where by reason of the exceptional
narrowness, shallowness, size or shape of a specific piece of
property at the time of the effective date of the ordinance,
. . . the strict application of the terms of the
ordinance would effectively prohibit or unreasonably restrict
the utilization of the property or where the board is
satisfied, upon the evidence heard by it, that the granting
of such variance will alleviate a clearly demonstrable
hardship approaching confiscation, as distinguished from a
special privilege or convenience sought by the applicant,
provided that all variances shall be in harmony with the
intended spirit and purpose of the ordinance.

In addition, Code ? 15.1-495(2)
limits the authority of a board of zoning appeals to grant a
variance by requiring that three specific findings be made before
a variance is granted. The board must find that: (1) a strict
application of the ordinance would result in an undue hardship to
the property owner, (2) this hardship is not shared generally by
properties in the same zoning district and the same vicinity, and
(3) the variance will not result in substantial detriment to
adjacent property and will not change the character of the zoning
district. Code ? 15.1-495(2).

On review before the trial court, the decision of a board of
zoning appeals is presumed to be correct. Steele v. Fluvanna
County Board of Zoning Appeals
, 246 Va. 502, 506, 436 S.E.2d
453, 456 (1993); Masterson v. Board of Zoning Appeals, 233
Va. 37, 44, 353 S.E.2d 727, 732-33 (1987). The trial court’s
review is limited to a determination whether a board has applied
erroneous principles of law or, when a board’s discretion is
involved, whether the decision is plainly wrong and in violation
of the purpose and intent of the zoning ordinance. Id.; Packer
v. Hornsby
, 221 Va. 117, 120, 267 S.E.2d 140, 141 (1980); Alleghany
Enterprises, Inc. v. Board of Zoning Appeals
, 217 Va. 64, 67,
225 S.E.2d 383, 385 (1976).

We first hold that Beagle’s purchase of the property at a low
price with the intent to seek a variance does not constitute an
absence of "good faith," as that term is used in Code ? 15.1-495(2). The very
purpose of the statute is to afford any property owner an
opportunity to seek a variance when a strict application of the
zoning ordinance would effectively prohibit or unreasonably
restrict the owner’s use of the property, or would cause a
demonstrable hardship approaching confiscation of the property. See
Code ? 15.1-495(2).
The purchase price of the property is irrelevant to this

Likewise, Beagle’s knowledge that the previous owner of the
property had been denied a variance does not affect his
"good faith" status under the statute. A board of
zoning appeals’ decision whether to grant a variance must be
exercised with regard to the particular facts of an application,
including the precise extent of the relief sought. See Board
of Zoning Appeals v. Fowler
, 201 Va. 942, 947-48, 114 S.E.2d
753, 757-58 (1960); Azalea Corp. v. City of Richmond, 201
Va. 636, 640, 112 S.E.2d 862, 865 (1960); Board of Zoning
Appeals v. Combs
, 200 Va. 471, 475, 106 S.E.2d 755, 758
(1959). While the denial of a prior application may be a relevant
consideration regarding the extent of relief that is appropriate,
nothing in the language of Code ? 15.1-495(2) precludes
a property owner from seeking a variance when a prior application
has been denied.

Spence next argues that since Beagle purchased the property
knowing that he needed a variance to build a house, the mere fact
of his purchase constitutes a self-inflicted hardship that bars
him from obtaining a variance. We reject this argument because,
under Spence’s analysis, nonconforming property could never be
developed by obtaining a variance after the property is sold and,
therefore, Code ? 15.1-495(2)
would be rendered meaningless with regard to such property. No
language in Code ? 15.1-495(2)
supports this result.

Nevertheless, Spence argues that three of our decisions compel
a conclusion that Beagle’s hardship is self-inflicted. His
reliance on these decisions is misplaced because each of those
cases involved property owners who had acted in violation of
applicable zoning ordinances. In Steele v. Fluvanna County
Board of Supervisors
, 246 Va. 502, 436 S.E.2d 453, we held
that the construction of a house in violation of side yard
setback requirements, although done inadvertently, was a
self-inflicted hardship. We stated that "a self-inflicted
hardship, whether deliberately or ignorantly incurred, provides
no basis for the granting of a variance." 246 Va. at 507,
436 S.E.2d at 457.

In Alleghany Enterprises, Inc. v. Board of Zoning Appeals,
217 Va. 64, 225 S.E.2d 383, a property owner sought a variance to
allow use of his property as an automobile sales lot. The
property was zoned for residential use but was located adjacent
to the owner’s motor vehicle business. We held that any hardship
the property owner suffered was self-inflicted because, after
purchasing property zoned for residential use, he violated the
zoning ordinance by using the property for purposes not allowed
in that land use classification. 217 Va. at 68-69, 225 S.E.2d at

In Board of Zoning Appeals v. Combs, 200 Va. 471, 106
S.E.2d 755, we reinstated a board of zoning appeals’ decision
denying an occupancy permit to a property owner who had
constructed an apartment over an existing garage in violation of
a zoning ordinance. We held that any hardship the owner suffered
was self-inflicted. 200 Va. at 477, 106 S.E.2d at 759.

Unlike the property owners in Steele, Alleghany,
and Combs, Beagle did not violate a zoning ordinance
provision and then seek relief from the consequences of that
unlawful act. Instead, Beagle followed the procedures prescribed
by Code ? 15.1-495(2)
and the City’s zoning ordinance to obtain a variance before
attempting to use the property. Beagle did not create his own
hardship but only sought relief allowed by Code ? 15.1-495(2) based on
the configuration and the physical characteristics of his
property. Thus, we conclude that the trial court did not err in
upholding the Board’s decision.

For these reasons, we will affirm the trial court’s judgment.