When the Virginia Supreme Court issued the opinion in Martin v. City of Alexandria on June 7, 2013, it gave some guidance of the current state of the legal standard for a Board of Zoning Appeals to grant a variance.  This helped a great deal.

Local governments attorneys, Boards of Zoning Appeals and landowners have debated for several years the legal effect of the General Assembly’s 2009 amendment of Virginia Code section 15.2-2309 to strike “approaching confiscation” from the phrase, “clearly demonstrable hardship approaching confiscation.”  Acts 2009, c. 206, effective July 1, 2009. This amendment followed behind the Virginia Supreme Court’s decision in Cochran v. Fairfax County Board of Zoning Appeals, 267 Va. 756, 594 S.E.2d 571 (2004), which most local government attorneys believe merely restated existing law on the difficulty of meeting the standard to justify a variance.

So what did striking “approaching confiscation” from the statute do, exactly?

Some folks asserted that striking “approaching confiscation” broadened the ability of a BZA to grant variances significantly.  They pointed out, like the Martins did in this case, that the Virginia General Assembly must have done SOMETHING by striking these restrictive words and that it gave a great deal more flexibility to BZAs to grant variances.  They pointed out that the Cochran opinion concluded that “undue hardship,” as described in the statute meant that a variance was

Others asserted that the standard was changed very little.  While it is true that the General Assembly may have done something by striking those restrictive words, “approaching confiscation.” it changed NONE of the remainder of the statute, which retains a very high bar to those seeking a variance.  And, if one reads Cochran carefully, the Court only mentions “approaching confiscation” once and then it is quoting the statute, NOT interpreting or applying its meaning.  Instead, the opinion focuses on the need to prove “undue hardship,” which remained in the statute after the 2009 amendment.

The Virginia Supreme Court, in the Martin case, confirmed that the standard is still quite high.  It discussed of the requirements of the statute, and, like in Cochran, focused on the lack of “undue hardship.”  Yet, unlike in Cochran, it also mentioned and applied all of the other portions of the variance statute.  And, interestingly, while the Court cited a number of variance cases pre-dating Cochran (many of which were also cited in Cochran), the Martin opinion does not mention Cochran at all.

The Virginia Supreme Court has confirmed that the bar is still set quite high for a landowner to get a variance, and, while not mentioning Cochran, it appears to be alive and well and is still good law despite the 2009 statutory amendment.