Agenda - Planning Commission - 07/10/2006

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June I0, 2006 --Page 3 Setback Requirement--Preservation act and zoning ordinance create overlapping setback requirements After subdivision, landowner claims setbacks disrupt property use Citation: Cherrystone Inlet LLC v. Board of Zoning Appeals of Northampton County, Supreme Court of V~rginia, No. 05]699 (2006) V~GIN~ (04/21/06) -- In 2004, Chercystone Inlet LLC (Cherrystone) acquired several lots from the Bremley Estate, parta of which extended to the low water mark of Cherrystone Inlet. In 1988, the Chesapeake Bay Preservation Act (Act) imposed a building setback upon the BromAey lots, mandating lots to be 110 feet landward from the shoreline. In addition, the local zoning ordinance imposed a setback of 60 feet from a nearby road. Because the distance from the shoreline to the road was much less than 170 feet on most of the lots, the setbacks overlapped, which precluded the construction of residential building. Cherrystone knew that when it bought the property. Four days after purchasing the property, Cherrystone subdivided it into five new lots. Only one lot had sufficient depth to permit consa'uction; the other lots required variances. The Board of Zoning Appeals of Northampton County denied Cherrystone's request for the necessary variances. Cherrystone sued, and the trial court ruled in favor of the board. Cherrystone appealed, arguing that the overlapping setbacks that the Act and the ordinance imposed un~easonably interfered with its land use. DECISION: ~ mrmed. The board properly denied the variances because Cherrystone did not show that the Iota for which it sought variances were lots of record when the Act became effective in I988. Under local law, that failure alone precluded the.issu- ance of variances based on the lots' shallowness. Further, Cherrystone did not show that the effect of the ordinance upon its property would -- without the variances sought-- interfere with all reasonable beneficial uses of the property, taken as a whole. Without considering other uses that the ordinance might allow, it was evident that -- rather than subdividing the land into lots, four of which were unbuildable -- Cherrystone could have treated the property as a single 6.594-acre parcel. A residential building could have been erected on the part of Cherrystone's parcel that the overlapping setbacks did not affect. Cherrystone could have used the remaining land as a valuable waterfront amenity -- appurtenant to that building. see also: Cochran v. Board of Zoning Appeals, 594 S.E. 2d 571 (2004). see also: Spence v. Board of Zoning Appeals, 496 $.E. 2d 61 (1998). © 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more inlormation please call (61D 54-24048. 173