Agenda - Planning Commission - 04/02/2009

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Zoning .Bulletin March 10,2009) Volu.me 3) No.5 (.~ . , Family Residential) zoning district. On August 12,2004, the county's Board of Supervisors (the "Board") approved ESDC's request. The Board also granted ESDC a special use permit for condominium devel- opment on the land. ESDC later submitted a site plan for the development of the rezoned land. ESDC proposed to build eight 8-unit multi-family residential buildings, which it described as "condominiums." The county's zoning administrator disapproved the site plan on the ground that newly constructed apartment buildings were prohibited in the "CD-Rl" district. ESDC appealed to the county's board of zoning appeals (the "BZA"). The BZA affirmed the decision of the zoning administrator. ESDC petitioned the circuit court, asking it to reverse the BZA's decision. The circuit court reversed the BZA's. decision. It held that under the Ordinance, condominiums of the type proposed by ESDC were permit- ted by grant of a special use permit by the Board. The BZA appealed. DECISION: Reversed. -- \ ) The court held that although the Ordinance permitted "condomini~ urn-type ownership" upon grant of a special permit for such use by the Board, and the Board had granted a special use permit to ESDC, ES- DC's project was prohibited. This was because a provision of the Ordi- nance unconditionally prohibited new construction of apartment build- ings in the "CD-Rl" district, and ESDC'sproject was for construction of apartment buildings. A special permit allowing a type of ownership did not alter that prohibition. Section 154.125(C) of the Ordiriance prohibited: "Apartments, new construction;" "Quadraplex structures;" and "Triplex structures." At the same time it permitted as of right: "Single family" uses; and "Apartments in existing buildings." And it permitted only with a spe- cial use permit: "Duplex structures;" "Townhouses or row houses;" "Zero lot line single-family units;" and "Condominium-type owner- ship (see VA Code)." The county had argued that "Condominium-type ownership" meant exactly what it said: that title to property in the district could be held in condominium form if a special use permit was granted authorizing that form of ownership. The county said its interpretation was fur- ther backed by the Ordinance's reference to the Code. of Virginia. The county said this was a cross-reference to the Condominium Act, which / prescribed the legal aspects of condominium as a form of ownership. Under its interpretation of the Ordinance, the county argued that the Board's grant of a special permit for a type of ownership did not af- @ 2009 Thomson Reuters 11 113