Posted by: Patricia Salkin | April 16, 2009

Where Ordinance Allows Apartment Buildings, Condominium Units Are Also Permitted Unless Specifically Excluded

A developer asked the county to rezone a portion of land from “A1” (Agricultural 1) to “CD-R1” (Community Development – Single-Family Residential). The Board of Supervisors (the “Board”) approved the request and also granted the developer a special use permit for condominium development on the land. Subsequently, the zoning administrator disapproved the submitted site plan on the ground that newly constructed apartment buildings were prohibited in the “CD-R1” district. The Board of Zoning Appeals affirmed the decision of the zoning administrator. The Circuit Court reversed, finding that under the Ordinance, apartments/condominiums of the type proposed by the developer were permitted by grant of special use permit by the Board.

 

The Virginia Supreme Court reversed, finding that the trial court erred in reversing the board’s decision. The Court determined that the zoning ordinance unconditionally prohibited new construction of apartment building, regardless of the type of ownership proposed, and the board of zoning appeals correctly so ruled. Although the county board of supervisors might have amended the zoning ordinance to permit the proposed construction after following the proper procedure, it was not at liberty to disregard it. Acts of a local governing body that are in conflict with its own ordinances exceed its authority and are void and of no effect.

 

Northhampton County Baord of Zoning Appeals v. Eastern Shore Development Corp., 277 Va. 198, 671 S.E.2d 160 (1/16/2009).

 

The opinion can be accessed at: http://www.courts.state.va.us/opinions/opnscvwp/1080126.pdf

 

 


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