Middleburg BZA reviews variance standards, hearing procedures ahead of July 1 case

The Middleburg Board of Zoning Appeals on June 4 reviewed the statutory tests for appeals and variances, hearing procedures and limits on ex parte communications as it prepares to hear a variance application on July 1.

A refresher from town staff focused on the BZA’s limited, quasi‑judicial role under state law and the multi‑step legal test an applicant must meet to obtain a variance. "It's simply whether my interpretation of that rule or application of that rule, is correct or not," Zoning Administrator Will said, describing appeals of administrative decisions. He added that the zoning administrator’s interpretation is "presumed to be correct" and that an appellant must rebut that presumption.

The refresher explained that a request for a variance has two stages: first, the board must determine whether the request meets the definition of a variance (a dimensional deviation related to shape, size or area); second, if the definition is met, the applicant must satisfy the statutory criteria. Will specifically noted that a use variance — a request to change the permitted use of a property — is not allowed under Virginia law: "A use variance is not permissible in Virginia." He cited the relevant code sections referenced in the staff materials (transcript: "section 15.2 dash 22 0 1" and "15.2 dash 23 0 9").

Staff emphasized several practical points the board will use when it hears the July 1 application: the board should make on‑the‑record findings tied to the statutory elements when granting or denying relief; variances run with the land (with a limited exception for ADA accommodations); a high number of variance applications can indicate a regulatory problem better addressed by amendment; and the board may impose reasonable conditions to reduce impacts on adjacent properties.

Members also discussed procedural rules for quasi‑judicial hearings. Staff advised that the cleanest hearing format is: staff presentation, applicant presentation, public comment, applicant rebuttal, then close the public hearing and move to deliberation. During deliberation the board may ask questions of staff, the applicant or members of the public who remain in the room. On ex parte communications, staff said members should not discuss the facts or law of a pending application with non‑legal staff, applicants, attorneys or witnesses before the hearing and should disclose any prohibited contacts at the start of the hearing.

The board also covered vote and quorum rules that apply to variance and appeal decisions. To approve a variance requires an affirmative majority of the BZA’s membership (three votes on a five‑member board). Staff noted that if only three members attend, an applicant may ask to defer because a decision by only those present would effectively require unanimous approval from those in attendance.

Votes at a glance: The board approved minutes from its May 31, 2023 meeting (motion recorded; outcome: passed, tally 4 yes, 0 no, 1 absent). The board also re‑elected Eric Holmes as chair and Deb Rossell as vice chair (motion recorded; outcome: passed, tally 4 yes, 0 no, 1 absent). The transcript indicates Troe/Trove Littleton was absent for those votes.

Staff told members a staff report and draft motions with recommended findings and check‑box guidance would be distributed in the next week or two to help structure the July 1 hearing.

The meeting concluded with scheduling confirmations for the July 1 hearing and no further substantive items.