It’s getting hot in here: Things are getting tough at the BZA

By: Andrew McRoberts, Editor. This was posted Wednesday, December 9th, 2009

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The General Assembly, Virginia Supreme Court and the Virginia State Bar have combined to make the job of our local Boards of Zoning Appeals (BZAs), and that of the local government attorney who deals with them, much more complicated. As a long-time county attorney and currently counsel to the Stafford County BZA, I have seen this first hand.

Let me briefly mention some of the more significant ways that life at the BZA has become more complicated and difficult over time:

1993. First statutory authorization of zoning administrator vested rights determinations, complex legal and factual cases that are quite adversarial when appealed to the BZA. 1993 Acts ch. 672 (amending former Virginia Code § 15.1-491, now § 15.2-2286(A)(4)).

1995. The so-called “sixty-day rule” is adopted. 1995 Va Acts ch. 424 (amending Virginia Code § 15.1-496.1, now § 15.2-2311(c)). The complicated and curious statutory exception to the settled general “no estoppel against local government” has been raised more and more by landowners in recent years. See, e.g., Goyonaga v. Board of Zoning Appeals of Falls Church, 275 Va. 232, 244, 657 S.E.2d 153 (2008)

2003. Virginia State Bar issued LEO 1785 (November 14, 2003), which declared it unethical for a local government attorney to provide any legal services to a BZA (even review the advertisement) and later represent the zoning administrator in that case. This caused many local government attorneys (including this one) to take the position that they would not represent the BZA at all. Many local governments decline to hire their BZAs counsel when requested. Given the complex nature of what a BZA is expected to do, this has sometimes caused or exacerbated a division between the local BZA and the governing body. See, e.g., Board of Zoning Appeals of Fairfax County v. Board of Supervisors of Fairfax County, 276 Va. 550, 550, 666 S.E.2d 315 (2008).

2004. BZAs used to issue variances more frequently as a “relief valve” in many communities. Cochran v. Fairfax County Board of Zoning Appeals, 267 Va. 756, 756, 594 S.E.2d 571 (2004) largely shut the valve by clarifying the tough standard to qualify for a variance. This has caused more appeals of zoning administrator determinations to the BZA, which are frequently quite adversarial between the locality and the landowner.

2006. As BZAs were called upon to hear increasingly complex and numerous appeals from zoning administrator determinations, they were given less deference on appeal. 2006 Va. Acts c.446 (amending Virginia Code § 15.2-2314). Since July 1, 2006, BZAs are only given a presumption of correctness on factual determinations, and all legal issues are presented to the circuit court de novo. And, of course, when an appeal goes to circuit court, the BZA gets named as a party.  Note: This was amended in 2010 to name necessary parties on appeal, and no longer include the BZA as a party on appeal.

2009. The General Assembly reacts to Cochran and deletes two words from Virginia Code section 15.2-2309 — “approaching confiscation.”  HB 2326, 2009 Acts of Assembly chapter 206. No caselaw so far has said what this means or will mean.  Although it undoubtedly must mean something, the rest of the stringent requirements and terms are still in the statute unamended.  As one example, the BZA must still affirmatively find “undue hardship” notwithstanding the 2009 amendment.  Without guidance, additional uncertainty about the variance standard is another way it is tough to be a BZA member.  The bar has been lowered in some way, but how? And how much?  UPDATE: It turned out not much when the Supreme Court decided Martin v. City of Alexandria in 2013, which I blogged about at the time.

There is going to be greater detail in an article I will publish in the coming year.  McRoberts, Andrew R., Boards of Zoning Appeals in Virginia: Quasi-Judicial and Increasingly Difficult, Journal of Local Government Law, Vol. XX No.2, Winter 2010, p.12.

What are your thoughts on the plight of our BZAs and the increasing complexity of their job? What’s a better way for local governments deal with them? Y0ur comments are welcome in the form below. Please let us hear from you!

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Comments:

  • Hi Andrew,

    I have to say it is good to read that someone else out there is thinking about this. It is certainly getting harder and harder for members of BZAs to correctly understand, interpret and follow legal precedent, particularly when many BZA members have little or no legal education or background. This seems to almost always lead toward discussions and presentations that are for the most part off-track, and decisions that can often be fairly inconsistent with the reasoning behind earlier precedent.

    I think we need to look more closely at who should appoint members of the BZA (i.e. which branch of government) and what a BZA member’s background should be. BZAs are quasi-judicial bodies and at least a majority of a BZA’s members should have an adequate legal background.

    Anyways, I look forward to the future article you mentioned and enjoy following your blog!

    Happy Holidays.

    Posted by: Tad Lunger | December 30th, 2009 at 2:19 pm
     
  • Hi Andrew,

    It’s none other than Steve Brechtel from KA writing to you here. I came across your BZA article above via a LinkedIn update, and couldn’t help but respond.

    I am still sore (and probably will be for life!) at the ZBA (that’s what they call it in CT where we have our cottage). It is a long story, but my attorney told me after we lost back in 2006 that he will never take another case in Old Lyme, CT again! In all, with $9k going to legal, it cost me roughly $30k to take a simple wooden platform taken down because it resembled a deck (non-conforming property).

    I wrote a letter and got it published in “The Day” (local New England paper). Nearby New London, CT soon after made national news when the “Eminent Domain” case was made against 20 or so homeowners.

    I can send you the letter I wrote (I thought it was pretty good!) regarding how “Boss Hogg-like” these ZBAs/BZAs behave. When it came right down to it, I and others agreed it came down to favoritism. I wasn’t liked or known in the small town by any of the 70+ yr-old people on that committee. The 92-yr old woman who still presided over the committee ruled with an iron fist, and I have some very funny stories of residents who were approved for some very major additions, etc, while I was declined for a very simple non-deck. Real joke.

    Thus, regarding your last paragraph questioning the reader what they think, I would say in my situation the cart comes before the horse. . .meaning, I would turn the question on its back: “What is the plight of the resident who is subjectively reviewed by the BZA, and when it comes down to it, really has no recourse (unless money is no object)?”

    My attorney did say if I continued to fight it, I would very likely win. However, that would’ve been at least another $20k in legal fees without any guarantee. It turns out my plight isn’t very different from many of the other part-time beach residents (who pay full yearly taxes), as the minority (40%) control the majority (60%). I had googled Old Lyme one day back in ’06 and discovered several academics & college students had written papers on how local BZAs make arbitrary decisions without any regard to previous rulings or precedence, let alone already-established covenants or grand-fathered rules of that community.

    Please feel free to call or email me if you’d like to discuss in more detail. I hope all is well with you and say hello to Connie for me.

    Happy Holidays!

    Regards,

    Steve Brechtel
    s.brechtel@sbcglobal.net
    (203) 980-9689

    Posted by: Steve Brechtel | December 15th, 2009 at 5:19 am
     

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