Agenda - Planning Commission - 05/01/2008

Home

Zoning Bulletin The court also found nothing in the variance could be interpreted as relieving the Goyonagas from the zoning ordinance requirement that no more than 75% of a nonconforming structure could be demolished without losing the right of the nonconforming use. The court also concluded that the Goyonagas did not have a vest- ed right to continue the nonconforming use of their property after the existing home had been completely demolished to its foundation. Virginia Code ~ 15.2-2307 provided that a property owner who re- lied in good faith on a significant affirmative governmental act and incurred substantial expenses in pursuit of the project became vest- ed with the right to develop the property, regardless of a.subsequent amendment to a zoning ordinance. The Goyonagas argued that be- cause they relied on the approval of the building plans by the city zoning and building officials, they had acquired a vested right to con- tinue the nonconforming use of the property. The court found the zoning administrator's determination that the demolition violated the zoning ordinance was not a "subsequent amendment to the zoning ordinance" contemplated by the statute. Moreover, the court noted that the statute provided for the vesting of a right to a permissible use of property against any future attempt tomake the use impermissible by amendment of the zoning ordinance. The court found the statute was not intended to permit or provide for the vesting of a right to an impermissible use-like the Goyonagas nonconforming use-under the existing ordinance. The court noted that Virginia Code ~ 15.2-2311(C) did provide for the potential vesting of a right to use property in a manner that otherwise would not have been allowed. However, given the statuto- ry language, the court reiterated that such a right would only vest if the applicant relied in good faith on a significant affirmative govern- mental act and incurred substantial expenses in pursuit of the proj- ect. The court found that reasonable reliance was missing here. There was no evidence showing that the zoning administrator's approval of the building plans included an authorization to effect the complete de- molition of the existing structure. Moreover, the Goyonagas failed to show that they could have reasonably relied on the zoning adminis- trator's approval of the building plans as authorizing them to com- pletely demolish the home and replace it with a new, nonconforming structure because the building plans submitted by the Goyonagas to the city did not indicate the home was to be completely demolished. In any case, the court said, even if the zoning administrator was aware that complete demolition of the home was called for in the building plans, he did not have the authority to permit the Goyonagas to vio- late the zoning ordinance by completely demolishing a nonconforming structure and replacing it with anew, nonconforming construction. 4 34