Posted by: Patricia Salkin | June 16, 2013

VA Sup. Court Overturns Circuit Court’s Decision to Grant Variances in Historical District

James and Christine Garner (Garner) purchased a lot at 122 Prince Street in an historic district in Alexandria, VA. They designed a single family home to construct on the site and sought side and rear yard setback variances. The property the Garner’s sought to build on adjoined to the west a structure that is one of the City’s only remaining examples of late 18th century rough sawn wood used as sidings. The Old and Historic Alexandria District Board of Architectural Review (BAR) stated that preserving a view of this wall was a factor in their determination to issue a certificate of appropriateness for any design the Garners would submit.

In 2003 the Garner applied for their first variance, a side yard variance of five feet and a rear yard variance of sixteen feet. The City recommended denial of the application because it opined the strict application of the Zoning Ordinance would not result in undue hardship to the property because “[t]he lot is level and there is no condition of the lot which restricts the reasonable use or development of a new single-family dwelling” and that the lot is large, suitable for development and buildable without a variance. The City also determined the variance would be detrimental to the adjacent property to the east, which belongs to the Martins (appellants) because they would now view 44.3 feet of building wall.

The Garner’s reapplied for a modified variance in 2005, requesting the city grant a side yard variance of five feet and a rear yard variance of fourteen feet, only representing a two foot change in the rear yard setback and no change with regards to the side yard from their 2003 application. The City once again recommended denial of the application finding  no justification for hardshipbecause a new house may be constructed on the property in compliance with setback regulations. Following a hearing by  the Alexandria Board of Zoning (BZA)  on the application, the Garner’s withdrew it.

After being denied the variances to build a home in accordance with their plans, the Garners sought a determination from the Zoning Administrator that they could utilize a portion of the abutting alley in calculations of the size of their east side yard. The Administrator determined the Garners could not count the alley as part of their side yard. The Garners appealed the decision to the BZA, which affirmed and then appealed that decision to the circuit court. Prior to trial, the City and the Garners entered into a “Stay of Litigation Agreement” which provided the City’s agreement that its planning and zoning department would support the Garner’s application for a three-foot side variance (without counting the alleyway) in exchange for the Garner’s agreement to stay the litigation.

In 2011 the Garners applied for the agreed upon 3-foot side variance and a 13-foot rear yard variance. The BAR “found the height, mass, scale and architectural style to be appropriate for the historic character of the block and the general design and arraignment of the building on the east side of the site adjacent to the alley was consistent with historic settings, streetscape and environs.” The City’s report on the property noted the importance of Prince Street as “Captain’s Row” and noted it supported the variances because “not only because the result is a good development compatible with its historic context, but also because the applicants’ case meets the legal standards for the grant of the variance.” The City also justified the variances because the ordinances were meant for “old” structures and praised the proposed building for its potential of being the only single detached house on a block of row houses, which would maintain the historic sense of open space. Despite staunch opposition at the public hearing for these variances, the BZA voted to approve the application. Following that decision Martin appealed. The circuit court upheld the decision to grant the variance and Martin appealed.


The Virginia Supreme Court begins its discussion of the case by analyzing the Alexandra City Charter, first by determining its standard of review is that the decision of the BZA is correct “unless the board has applied erroneous principles of law…” Therefore it was important to begin by determining the basis under which the BZA was authorized to grant a variance. The BZA may grant a variance “when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship; provided that the spirit of the ordinance shall be observed and substantial justice done.” However, the property owner is required to show one of the following conditions and one of the following justifications in order to be granted a variance.

“When 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, or where by reason of the exceptional topographical condition or other extraordinary situation, or condition of such piece of property, or of the use or development of property immediately adjacent thereto, the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of 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, 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.”

Additionally, an applicant must show the “existence of at least one of [these] several “special conditions” which would cause compliance with a zoning ordinance to result in an ‘unnecessary hardship’ but the board of zoning appeals must find that the [following] three enumerated tests are satisfied: (1) That the strict application of the ordinance would produce undue hardship; (2) That such hardship is not shared generally by other properties in the same zone and the same vicinity and is not created by the owner of such property; and (3) That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the zone will not be changed by the granting of the variance.”

The Court determined that in order for the BZA to grant a variance it must find “(1) the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of property or the granting of such variance will alleviate a clearly demonstrable hardship, as distinguished from a special privilege or convenience, (2) all variances are in harmony with the intended spirit and purpose of the ordinance, (3) the strict application of the ordinance would produce an undue hardship, (4) the hardship is not shared generally by other properties in the same zone and the same vicinity, and (5) the condition or situation of the property…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 Court reviewed the primary justifications, advanced by the Garners for their 2011 application to determine whether the BZA could properly have found them to satisfy all requirements outlined in the City Charter. First, the Garners contended they faced a unique hardship because the home they sought to build was on a vacant lot and subjected to the city-wide zoning ordinance and the Historic District Ordinance. The Court rejects this argument because the zoning laws were enacted to regulate new buildings (contrary to the assertion made by the City in determining the zoning laws were supposed to regulate old buildings) and therefore granting a variance to erect a new structure would effectively render the Ordinance meaningless

Next the Garners argued their lot is exceptionally wide and shallow compared to the other lots on their block and therefore face a hardship because they have less land to build a home to satisfy the rear yard requirements. The Court again rejects this argument stating that if the Garner’s argument is to be accepted it would justify variances for the one-third of properties that are even shallower than the Garner’s but yet still conform to the zoning requirements. The Court said that  this effectively nullifies the zoning ordinance requiring a rear yard “thereby conflicting with the intended spirit and purpose of the ordinance.”

Finally, the Garner’s argument that their property is “undevelopable” because alternative designs would not comply with both the Historic District Ordinance and the Zoning Ordinance is premised on the BAR’s desire to consider the visibility of the neighboring, historic wall in deciding whether to approve any home design and therefore creates a unique challenge to satisfy both ordinances. The Court rejects this argument because, as admitted by the Garners, they had the option of submitted a conforming design that would not require variances but did not do so. Therefore, it is mere speculation the Court says, that the BAR would not approve the design or any other design that conforms to the zoning ordinance. “Thus there was no factual support for the Garners’ claim that their property, by being located next to the historic wall, makes it uniquely more difficult to build a structure that satisfies the BAR and conforms to the RM zoning regulations.”

Martin v. City of Alexandria, 2013 WL 2443357 (Va. 6/6/2013)

The opinion may be accessed at:


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