The Court of Appeals Describes Limits to the Authority of a Board of Zoning Appeals.
Avonlea LLC v. Moritz, Record No. 0952-23-4 (Va. Ct. App. Sept. 3, 2024)
Avonlea LLC owned two adjacent properties in Old Town Alexandria. One had a house; the other was empty. Avonlea wanted to construct a parking area on the empty property that could be accessed from the street, but a local zoning ordinance provided that “access to all parking [within Old Town Alexandria] shall be provided from an alley or interior court.” So, Avonlea applied for a variance, arguing that the ordinance prevented “reasonable use” of its property since that property could not be accessed from an alley or interior court. The Board of Zoning Appeals for the City of Alexandria (BZA) granted the variance, but the Director of Planning and Zoning of the City of Alexandria Karl Mortiz, among others, petitioned the circuit court for a writ of certiorari to review the variance, which the circuit court issued. The court then overturned the variance, finding that the BZA lacked statutory authority to grant a variance as that statute “did not regulate the types of activities that are subject to a variance.” Avonlea appealed, but the Court of Appeals affirmed.
The Court found that the BZA is a “creature of statute,” and as such, is limited by the powers granted to it by the legislature. The General Assembly allowed the BZA to grant a “variance” to local zoning ordinances. State statute and Alexandria ordinance define “variance” the same: “A reasonable deviation from those provisions regulating the shape, size, or area of a lot…or the size, height, area, bulk or location of a building.” Here, the Alexandria ordinance from which Avonlea sought an exception regulates only “access to…parking.” It does not regulate whether a building may be constructed. Thus, the BZA had no authority to grant a variance to that ordinance.