Lake George Corp. v. StandingLake George Corp. v. Standing
delivered the opinion of the court.
This is an appeal by Lake George Corporation (Lake George) challenging an order of the court below holding that the Board of Zoning Appeals оf the City of Virginia Beach (Board) did not have the power or jurisdiction to hear аn original application for a variance from the terms of the City’s zoning ordinance.
Lake George owns twelve parcels of unplatted land in the City of Virginiа Beach. Each parcel is 100 feet wide and 300 feet long, and lies along and is сontiguous to the western end of twelve blocks of land shown on the “Plat of Capе Henry Syndicate.” The lands of Lake George and that shown on the Plat of Cape Henry Syndicate are situated in the RD-2 zoning district, which requires that each lot have а 75-foot frontage on the street and 10,000 square feet of
Lake George desires to develop each of its twelve unplatted parcels into four lots with 50-foot street frontage and 7,500 square feet land area, thereby malting these lots conform with the sizes of adjoining lots on the Plat of Cape Henry Syndicate. Through its officers, Lake George requested Mr. John Gibbs, the building inspectоr and zoning administrator of the City, to issue four building permits for each of its twelve parcels. Gibbs denied the request.
Thereafter Lake George filed an original apрlication with the Board for a variance from the requirements of the zoning ordinance. After a hearing the Board granted the variance.
Upon the petition 1 of Patrick L. Standing, director of planning for the City, and 125 interested landowners, certiorari was granted by the сourt below to review the decision of the Board. After a consideration of the pleadings, evidence and exhibits, the court held that under the provisions of Code § 15.1-495 the Board had no jurisdiction to act upon an application for a variance except upon an appeal “from a prior adverse action or decision of the Building Inspector or Zoning Department Officеr,” and that the Board’s decision to grant the variance was null and void.
Lake George, by counsel, says that the provisions of Code § 15.1-495 (b) confer upon the Board original jurisdiction to grant a variance from the terms of the zoning ordinance when, оwing to special conditions, a literal enforcement of its provisions would result in unnecessary hardship. Council argues that the language of the statute refers tо an appeal from the terms of an ordinance, not to an appeal from a determination of the building inspector and zoning administrator.
The pertinent part of Code § 15.1-495 reads as follows:
“Boards of Zoning Appeals shall have the following powers and duties:
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“(b) To authorize upon appeаl in specific cases such variance from the terms of the ordinance аs will not be contrary to the public interest, when, owing to special conditions а literal enforcement of the provisions will result in unnecessary hardship; providеd thatthe spirit of the ordinance shall be observed * *
(Emphasis added.)
The Board is a creature of statute possessing only those powers еxpressly conferred upon it.
Under the terms of the statute quoted above the Board has jurisdiction to grant a variance only upon an appeal from a prior decision of a zoning officer. The statute does not confer upon the Board original jurisdiction to entertain an appeal from the terms of the zоning ordinance.
For decisions from other states construing similar stautory provisions, sеe
Mamaroneck Commodore, Inc.
v.
Bayly,
In the present case the proceeding before the Board was on an original petition filed by Lake George and not on an appeal from a prior order or decision. Since the procedure prescribed by statute was not followed, the Board was without power and jurisdiction to entertain thе application for a variance. Thus the decision of the Board was null and void.
For the reasons stated, the judgment of the court below is
Affirmed.
Notes
. Code § 15.1-497.