As a local government attorney experienced in this area, I can easily recite the many statutory prerequisites and standards for granting a variance in Virginia Code § 15.2-2309(2). These are significant hurdles. They include (i) unnecessary hardship, (ii) not contrary to the public interest, (iii) physical/topographic limitations, (iv) effective prohibition or unreasonably restricted use, (v) undue hardship (although no longer “approaching confiscation”), (vi) hardship not shared generally by other properties, (vii) no substantial detriment to adjacent property, (viii) no change in character of district, and (ix) situation not so general or reoccurring that it could be addressed by general zoning amendment.

In the Virginia Supreme Court decision of Cochran v. Fairfax County BZA, 267 Va. 756 (2004), the Virginia Supreme Court construed these statutory requirements to mean that “the BZA has no authority to grant a variance unless the effect of the zoning ordinance, as applied to the piece of property under consideration, would, in the absence of a variance, ‘interfere with all reasonable beneficial uses of the property, taken as a whole.’” Cochran, 267 Va. at 766.

Given this standard, the Cochran Court held against each of the landowners in the three consolidated cases. This result was despite “compelling reasons … in favor of each of the applications for variances: The desires of the owners, supported by careful planning to minimize harmful effects to neighboring properties; probable aesthetic improvements to the neighborhood as a whole, together with a probable increase in the local tax base; greatly increased expense to the owners if the plans were reconfigured to meet the requirements of the zoning ordinances; lack of opposition, or even support of the application by neighbors; and serious personal need, by the owners, for the proposed modification.” Cochran, 267 Va. at 767.

BZA members may (and do) ask: What about the applicant whose mother who is ill? What about a business owner that cannot afford to put the addition in another location? What about the huge costs to the individual homeowner whose bad builder simply overshot the setback?

Good questions, all. The legal answer is these substantive considerations rarely meet the legal standard for a variance given the stiff, largely objective nature of that standard. And appropriately so. The law ought to apply equally to all.

But the push and pull of tough law and difficult facts make variance applications particularly difficult for BZA members who must face the applicants and vote. Often, the applicants will have a compelling need but will simply not meet the legal standard.

In those cases, it is far easier to be a local government attorney who recites the legal standard than the BZA member who has to apply it.

The latest vested rights decision in the Commonwealth has been passed down from Judge C. Randall Lowe of the Twenty-eighth Judicial Circuit, sitting in the Washington County Circuit Court. The case is Commonwealth-Abingdon Partners, L.P. v. Town of Abingdon, Case No. CL08-47. You can read the opinion here.

In this case, a developer and contract owner intending to develop a Wal-Mart in the Town of Abingdon argued it had vested rights and did not have to comply with a recently-enacted historic overlay zoning district adopted by the Town. A subdivision plat had been “accepted” by the planning commission, then later recommended for denial. A site plan (the next item on the agenda) was never acted upon by the planning commission, since it relied upon approval of the subdivision of the property into six parcels.

The plaintiff argued a technical approval when the planning commission failed to take action on the site plan within sixty days. The Town argued that no approvals had been given.

The case turns on the wording of Virginia Code § 15.2-2307, of course, but specifically whether there was a “significant affirmative governmental act” which “remains in effect”, and whether the landowner showed “reasonable reliance” thereon. The court decided each of these issues in favor of the Town of Abingdon. The Court said that there was no significant affirmative government approval under Virginia Code § 15.2-2307, and even if it were, the landowners could not demonstrate “reasonable reliance” since the specific project shown on the site plan could not have been developed without the subdivision.

These questions arise from the Virginia Supreme Court’s reliance on the “Due Process Clause” – all caps, with no citation – to strike down the City’s noise ordinance for being unconstitutionally vague. The Court mentioned U.S. Supreme Court opinions whenever referring to this clause, so it appears the Court applied the Due Process Clause of the U.S. Constitution, found in the Fourteenth Amendment, Section 1.

If so, this presents the first question: Has Virginia’s highest court has ruled contrary to the United States Supreme Court in interpreting the federal Due Process Clause?

The justices in Washington, D.C. have repeatedly upheld some version of the “reasonable person” standard in Due Process Clause vagueness challenges. See Grayned v. City of Rockford, 408 U.S. 104 (1972), Cameron v. Johnson, 309 U.S. 611, 616 (1968), Kovacs v. Cooper, 336 U.S. 77, 79 (1949). For example, the nation’s highest court has opined that so long as an ordinance contains an “ascertainable standard” such as “the sensitivity of a hypothetical reasonable man,” the ordinance is not unconstitutionally vague. Coates v. City of Cincinatti, 402 U.S. 611, 613-614 (1971).

Not surprisingly, the Fourth Circuit Court of Appeals has reached the same result. See Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 493 (4th Cir. 1983) (“we have no difficulty sustaining the Section [prohibiting “loud, disturbing … noise”] against the charge of vagueness.”); Asquith v. City of Beaufort, 139 F.3d 408, 411 (4th Cir. 1998) (upholding local noise ordinance against constitutional due process vagueness challenge because it had been interpreted by the state supreme court to prohibit noises “unreasonably loud under the circumstances.”)

Given this, is it possible that the Virginia Supreme Court intended to apply the state due process standard found in Article I, Section 11 of the Virginia Constitution? It does not appear so. The Court did not cite the Virginia Constitution, or even cite its own precedent which has interpreted the Virginia due process standard. However, if the Court did rely upon the Virginia Constitution, it seems that the federal Due Process Clause now provides a different standard of protection than its Virginia counterpart.

But, if so, this raises a second, more troubling question.

The Virginia Supreme Court has always declared Virginia’s due process protection to be “co-extensive” with the federal Due Process Clause of Section 1 of the U.S. Fourteenth Amendment. E.g., Willis v. Mullett, 263 Va. 653, 657 (2002). In its Tanner opinion, while the Virginia Supreme Court cited numerous federal cases to support its opinion, it did not address the “co-extensive” issue. In fact, the Court declined to discuss this issue when explicitly requested to do so. In its Petition for Rehearing, the City of Virginia Beach fairly presented the second question: Does the Virginia Constitution’s due process protection remain co-extensive with the U.S. Constitution’s Due Process Clause?

Two major, alternative questions remain after the Tanner decision: (1) Has the Commonwealth’s highest court interpreted the U.S. Constitution’s Due Process Clause differently than the U.S. Supreme Court? (2) Has the Virginia Supreme Court, without discussion or comment, uncoupled the formerly identical constitutional due process protections so they are no longer “co-extensive?”

As big an impact as the Virginia Supreme Court’s striking down the “reasonable person” test as a criminal standard will have on local noise regulation, the answers to these two questions may have an even greater long-term impact on constitutional jurisprudence.

In its opinion, the Virginia Supreme Court ruled that the City’s noise ordinance was facially unconstitutional because its use of the “reasonable person” standard did not provide “ascertainable standards” for potential defendants. The Virginia Beach ordinance at issue, in part, prohibited noise that was “unreasonably loud, disturbing and unnecessary.” This, the Court held, violated the “Due Process Clause” because it was too vague to give fair notice to prospective defendants of what conduct was prohibited. See the opinion at the Court’s website.

After some weeks, I am recovering from surprise and disappointment, but remain concerned with the aftermath of the opinion.

My concern does not arise solely from the Court’s choice to adopt a minority position, although I do note that a majority of state supreme courts have reached a contrary result. My concern relates to the impact of the ruling on the ability of local governments to regulate noise in the public interest. Do not underestimate the difficulty facing local government attorneys. As I write, many across the state are struggling to write an enforceable noise standard to replace the reasonable person test.

Two major types of standards appear to remain. First, ordinances may regulate noise by use of decibel levels. These ordinances are fairly common, but are notoriously difficult to write and even more difficult to prosecute. Second, ordinances may define examples of noise disturbances. These are also difficult to write, although the courts seem to accept them more readily than other types of noise ordinances. One thing local government attorneys may wish to consider in defining examples of noise disturbances is referencing another state statutory standard similar to disturbing the peace. However, none of these options are easy to draft or easy to prosecute.

In addition, beyond noise ordinances, I am concerned with the broader impact of the ruling on other ordinances and criminal statutes. Warrants have already been dismissed in at least one locality because the local ordinance, not having anything to do with noise, referenced the “reasonable person” standard. This bedrock of jurisprudence appears to be off limits for Virginia local governing bodies and even the Virginia General Assembly in defining criminal conduct. I predict this will be a significant issue in the aftermath of Tanner, and one not immediately obvious.

Next time: Tanner v. City of Virginia Beach, Part Two: Lingering Questions and the “Due Process Clause” Applied to Local Noise Ordinances