Wednesday, Mar 24, 2021

Fairfax County BZA Approves First Variance Request Under the ADA

On February 3, 2021, the Fairfax County Board of Zoning Appeals (BZA) approved its first variance request in accordance with the recently adopted American with Disabilities Act (ADA) legislation of the Virginia State Code. Relying upon Virginia State Code section 15.2-2309.2, which allows for variance applications on behalf of individuals with a disability, land use attorney, Kathryn R. Taylor, received a unanimous vote of approval from the BZA to allow a nonconforming recreational sports court to remain in its current condition and location.

In this case, the homeowners built a basketball court in the backyard of their home for the private use and enjoyment of their family. The basketball court is for their 8-year old son who suffers from a tri-diagnosis of Down syndrome, autism spectrum disorder, and apraxia. By providing this safe outdoor environment, their son is able to engage in requisite therapy and participate in appropriate recreational and developmental activities. However, unbeknownst to the family, when the basketball court along with its mesh netting enclosure were installed, they were too close to the rear lot line, thereby creating compliance issues with the County’s Zoning Ordinance. When it became clear that relocating the entire sport court area was not feasible, the homeowners, with the assistance of Ms. Taylor, sought a variance from the BZA as the most appropriate remedial action.

In 2018, the Virginia General Assembly adopted an amendment to Section 15.2-2309.2 of the Code of Virginia that expressly gives a board of zoning appeals the authority to grant a variance to “alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability.” Under this provision, Ms. Taylor argued that the son’s disabilities created a need for a reasonable modification to the rear yard setback requirements. A modification would permit the basketball court and its mesh netting enclosure to remain in its existing location, which would alleviate a hardship caused by a strict application of the Zoning Ordinance requirements. In the end, the BZA agreed and unanimously approved the variance request.

This was the first variance application reviewed by the Fairfax County Department of Planning and Development and subsequently heard and approved by the BZA in accordance with the newly adopted ADA statute.