2008

Goyonaga v. Bd. of Zoning Appeals

Supreme Court of Virginia

275 Va. 232, 657 S.E.2d 153

Under a current ordinance, landowners’ lot was substandard, and house did not conform to minimum setback requirement. Landowners obtained from Board a variance to enlarge and extend home, assuming responsibility to comply with zoning and building codes. To comply with the directive of a building inspector, the landowners demolished more than 75% of the original building. A stop work order was issued, as a Falls Church City code section prohibited replacing non-conforming structures that had less than 25% of the original building still remaining. Any new structure would have to comply with setback and lot size requirements of new construction in that zone. The landowners appealed the Board’s decision to the circuit court, asserting the decision was arbitrary, capricious and contrary to law. Trial court upheld the findings of the Board, as there was no evidence they were incorrect or improper, and the actions of building officials in initially granting a variance and building permit did not give the landowners a vested right to build a non-conforming structure. Supreme Court affirmed. Va. Code § 15.2-2307 provides that when an affirmative governmental act allows the development of a specific project, which is relied on and the owner incurs extensive obligations or substantial expenses, then that becomes a vested right to develop the property regardless of a subsequent amendment to the zoning ordinance. That statute did not apply to these facts. Further, Va. Code § 15.2-2311(C) did not apply either, as the zoning administrator’s approval of the building plans did not include authorization to effect a complete demolition of the building. The landowners did not have a vested right to continue a non-conforming use of their property.

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