## Facts

- A Fairfax County homeowner owned a single-family residential lot in an R-2 zoning district with an existing home that complied with required setbacks.
- The zoning ordinance required a 15-foot side-yard setback.
- The owner sought to demolish the existing home and build a substantially larger house placed 13 feet from a side property line, with exterior chimneys extending further into the setback.
- The owner applied to the Fairfax County Board of Zoning Appeals (BZA) for multiple variances from the side-yard setback requirements.
- It was undisputed the new house could be built without any variance by shifting the structure slightly on the lot to meet the setback (including clearance for the chimneys).
- The BZA granted the requested variances.
- Neighboring homeowners and the county’s governing body sought certiorari in circuit court to overturn the BZA decision; the circuit court upheld the variances.
- On appeal, the Supreme Court of Virginia consolidated this case with two other variance appeals presenting the same statutory standard question.

## Issues

1. What legal standard governs the granting of a zoning variance under Virginia Code § 15.2-2309, including the meaning of “unnecessary hardship” and the requirement that hardship be peculiar to the property and not self-inflicted?
2. Whether a variance may be upheld when the applicant can reasonably comply with the ordinance by changing the proposed structure’s placement or design.
3. Whether the BZA and circuit court erred in granting and affirming variances based on an owner’s preferred site plan rather than a property-based hardship.

## Decision

- The Supreme Court of Virginia reversed the circuit court judgment that had affirmed the Fairfax County BZA’s grant of variances.
- The Court held the applicant failed to prove an “unnecessary hardship” because the proposed house could be built in full compliance by relocating it on the lot.
- The Court reaffirmed that variances are limited relief and may not be used to authorize departures from zoning policy based on convenience, value enhancement, or preferred design.
- In the consolidated opinion, the Court also reinstated a variance grant in one companion case and reinstated a variance denial in another, applying the same statutory test.

## Legal Principles

- A variance may be granted only upon proof that strict application of the zoning ordinance would cause an unnecessary hardship that is peculiar to the property, not shared generally in the zoning district, and not created by the owner.
- The applicant bears the burden to prove the statutory elements for a variance; the authority to grant variances must be exercised sparingly.
- No unnecessary hardship exists when the property can reasonably be used in compliance with the ordinance through feasible adjustments to the proposal (including siting changes).
- Even when hardship is shown, a variance is permitted only if it will not substantially harm adjacent property and will not change the character of the district.
- A board of zoning appeals may not use variances as a substitute for legislative rezoning or policy change.

## Conclusion

The court required strict compliance with Virginia’s variance statute and rejected variances based on an owner’s preferred placement or design where compliance was readily achievable; because the applicant could build a conforming house by shifting it on the lot, the Fairfax variances were unlawful and the circuit court’s affirmance was reversed.


Cochran v. Fairfax Cnty. Bd. of Zoning Appeals, 267 Va. 765, 594 S.E.2d 571 (2004)