Can a Virginia Board of Zoning Appeals ignore the procedural rules in the local zoning ordinance, or tell only some applicants about a reconsideration option?

Subject

Whether a Virginia local Board of Zoning Appeals (BZA) may (1) deviate from procedural rules in a local zoning ordinance, including by hearing matters that the local governing body has reserved to itself, and (2) discreetly disclose the existence of a "reconsideration" option to only a limited and subjective group of denied applicants.

Plain-English summary

A BZA is a creature of statute with powers limited to those expressly granted. Section 15.2-2309 sets out its primary duties: hearing appeals from zoning administrator decisions, granting variances, and interpreting district maps. The opinion quotes the Code as allowing a BZA to make procedural rules "consistent with ordinances of the locality and general laws of the Commonwealth."

Delegate Tata's first question was whether a BZA could hear a case that the local zoning ordinance directed to be heard by City Council instead. AG Miyares said no. BZAs cannot deviate from procedural rules in the local ordinance. Specifically, where a local governing body has reserved certain matters to itself (such as special exceptions under § 15.2-2286, or appeals of proffered conditions under § 15.2-2301), the BZA cannot reach over and hear them.

The second question was about a "reconsideration" practice in which a BZA might quietly tell some denied applicants that they could reapply or seek reconsideration, while not disclosing that option to others. The AG said this practice runs into the Virginia Freedom of Information Act. BZAs are public bodies under FOIA (prior AG opinions established this). FOIA requires public notice of meetings, public records of proceedings, and majority votes for valid action. A BZA cannot create a "secret menu" of reconsideration options known only to favored applicants. If the BZA wants to offer reconsideration as a procedural option, it must do so openly, with the existence and process disclosed to all denied applicants.

The opinion leaves open whether Virginia law permits BZA reconsideration of its decisions. It quotes two circuit court opinions noting the question without resolving it. The AG took no position on whether reconsideration is permitted, only on the public disclosure question if it is offered.

The opinion also flagged that individual BZA members can have limited ex parte communications with applicants before a hearing under § 15.2-2308.1(A), but those communications must avoid discussing facts or law of the case and remain subject to FOIA and the State and Local Government Conflict of Interests Act.

What this means for you

If you are a BZA member or zoning administrator

The opinion holds that a BZA is a creature of statute whose powers are limited to those expressly granted, and that it may not deviate from procedural rules in the local zoning ordinance or statute. It quotes the Code as requiring a BZA's procedural rules to be "consistent with ordinances of the locality and general laws of the Commonwealth," and says the BZA may not hear matters reserved to the governing body. On the second question, it holds that because BZAs are public bodies under FOIA, the existence of any reconsideration option would be open to the public, so a BZA cannot discreetly disclose it to a limited and subjective group of denied applicants.

If you are a property owner with a BZA application

The opinion holds that matters a governing body has reserved to itself do not come before the BZA, and that a BZA cannot offer a reconsideration option to only some denied applicants without public disclosure under FOIA. The opinion expressly does not decide whether a BZA may reconsider its decisions at all, noting that the Supreme Court of Virginia has not resolved the question and that two circuit courts (Fairfax Supervisors, In re Chesapeake) flagged it.

If you are a local government attorney advising a BZA

The opinion holds that BZA bylaws must be consistent with the local ordinance and the Code, that a BZA cannot deviate from the procedural rules in either, and that selective, non-public disclosure of a reconsideration option conflicts with FOIA. It notes that an individual member's ex parte communications under § 15.2-2308.1(A) must avoid discussing the facts or law of the case and remain subject to FOIA and the State and Local Government Conflict of Interests Act.

If you are a state legislator

The opinion notes an unresolved question in Virginia law (whether a BZA may reconsider its own decisions) and cites two circuit court decisions that flagged it without resolving it. The opinion takes no position on the question and does not call for legislation.

Common questions

Q: Can a BZA grant a special exception in addition to a variance?
A: Not if the local governing body has reserved special exceptions to itself under § 15.2-2286. The BZA's authority to grant variances is statutorily expressed in § 15.2-2309 (variances and certain administrative appeals); special exceptions are a different mechanism that the governing body typically controls.

Q: What is the difference between a variance and a special exception?
A: A variance is granted when strict application of the zoning ordinance would create an unnecessary hardship; the BZA evaluates the variance against statutory criteria. A special exception is a use that the ordinance permits subject to discretionary review and conditions; the governing body (council or board) typically grants special exceptions.

Q: Can a BZA member talk to me about my application before the hearing?
A: Virginia Code § 15.2-2308.1(A) permits limited ex parte communications before the hearing, so long as the BZA member does not discuss facts or law of the case.

Q: Can a BZA reconsider its own decision?
A: The opinion does not decide whether a BZA may offer reconsideration. It quotes two circuit court opinions that noted the question without resolving it.

Background and statutory framework

Virginia BZAs are creatures of statute with powers limited to those expressly granted. Section 15.2-2309 sets out their primary duties. The opinion explains that a governing body may reserve certain matters, including special exceptions under § 15.2-2286, to itself in its zoning ordinance. A BZA's procedural rules must be consistent with local ordinances and state law.

The opinion states that a BZA has only powers expressly granted by statute. It quotes the Code's rule that BZA procedures must be consistent with local ordinances and state law.

The AG says prior opinions of the office have held that BZAs are public bodies under FOIA. The opinion quotes FOIA's requirement that public bodies give notice of meetings and states that a BZA must keep a full public record of its proceedings. Selective disclosure of a reconsideration option to a limited group of denied applicants is not permitted.

The AG quotes a Fairfax circuit court opinion asking whether finality forecloses reconsideration and a Chesapeake circuit court opinion noting that the Supreme Court of Virginia had not expressly foreclosed reconsideration. The AG expressly leaves the question unanswered.

Citations and references

Statutes:

• Va. Code Ann. § 15.2-2308.1 (ex parte rules)
• Va. Code Ann. § 15.2-2309 (BZA powers and duties)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-013-Tata-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
June 23, 2022
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Anne Ferrell Tata
Member, Virginia House of Delegates
Post Office Box 1442
Virginia Beach, Virginia 23451

Dear Delegate Tata:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You pose two questions regarding the powers and limitations of a local Board of Zoning Appeals ("BZA"). In your first question, you ask if a BZA has authority to deviate from procedural rules found within an applicable local zoning ordinance. You specifically ask whether a BZA may retain a case for hearing/voting even if the applicable zoning ordinance "clearly states that the case in question has circumstances requiring it to be heard/voted at the level of City Council instead."

In your second question, you ask whether it is legal for a BZA to discreetly (i.e., non-publicly) disclose the existence of a possible "reconsideration" option, only to a limited and subjective roster of denied BZA applicants without any written or verbal public disclosure made to either (i) all BZA applicants or (ii) denied BZA applicants.

Response

It is my opinion that (1) BZAs do not have the authority to deviate from procedural rules found in applicable zoning local ordinances and statutes; and (2) BZAs cannot "discreetly disclose" the existence of "reconsideration" options to a limited and subjective group of denied applicants.

Applicable Law and Discussion

I first note that the Attorney General historically does not opine on the interpretation of local ordinances:

This Office historically has followed a policy of responding to official opinion requests only when such requests concern an interpretation of federal or state law, rule or regulation. In instances when a request requires an interpretation of a local ordinance, the Attorney General has declined to respond in order to avoid becoming involved in matters solely of local concern and over which the local governing body has control.

Accordingly, I have limited the analysis herein to the scope of authority and rules of procedure of BZAs under state law, and this opinion does not weigh in on the specifics of any local ordinance or the facts of any local proceedings.

Pursuant to state law, a BZA is a creature of statute whose powers are limited to those expressly granted. Section 15.2-2309 of the Code sets out the primary powers and duties of BZAs. These include the authority "[t]o hear and decide appeals from any order, requirement, decision, or determination made by an administrative officer in the administration or enforcement" of the zoning statutes or local zoning ordinances. BZAs are also authorized to grant variances upon appeal or original application, and to interpret the district map where there is uncertainty about the location of a district boundary.

The Code establishes certain rules of procedure for BZA proceedings. Additionally, the Code provides that each BZA may "make, alter and rescind rules and forms for its procedures, consistent with ordinances of the locality and general laws of the Commonwealth." That is, a BZA may "direct [its] mode of procedure via by-laws." By-laws adopted by a BZA must be consistent with local ordinances and the Code of Virginia. Therefore, in my opinion, a BZA may not deviate from procedural rules set out in a local zoning ordinance or statute.

You also ask, more specifically, whether a BZA may hear and vote upon a matter that the local body has reserved unto itself in its zoning ordinance. For example, § 15.2-2286 of the Code provides that "the governing body of any locality may reserve unto itself the right to issue . . . special exceptions." Additionally, under Virginia Code § 15.2-2301, an appeal of a zoning administrator's decision concerning proffered conditions shall be heard by the local governing body, rather than the board of zoning appeals. Where a local governing body has reserved the right to hear such matters, it is my opinion that a BZA may not hear or vote upon such a matter.

Regarding your second question, generally under the Virginia Freedom of Information Act ("FOIA"), all meetings of public bodies shall be open. Prior opinions of this Office have held that BZAs are public bodies under FOIA, and therefore must comply with its rules. FOIA requires every public body to "give notice of the date, time, and location of its meetings." Furthermore, "[e]xcept for matters governed by § 15.2-2312, no action of [a BZA] shall be valid unless authorized by a majority vote of those present and voting" and a BZA "shall keep a full public record of its proceedings." Therefore, if a BZA offers a "reconsideration" option, the existence of such option would be open to the public under FOIA. Thus, it is my opinion that a BZA cannot discreetly disclose a "reconsideration" option to only a limited and subjective group of denied BZA applicants.

I note that Virginia Circuit Courts have questioned whether Virginia law permits BZAs to reconsider their decisions. See Fairfax Supervisors, 2018 Va. Cir. LEXIS 625, at *17 ("Unanswered nevertheless is whether finality under the West Lewinsville test alone forecloses the BZA's right to reconsider its decisions."); In re Chesapeake Zoning Appeals Bd. Decision, 103 Va. Cir. 233, 235-36 (City of Chesapeake, Oct. 11, 2019) ("[T]he Supreme Court of Virginia has not expressly foreclosed the ability of a BZA to reconsider its decisions."). This opinion does not address whether a BZA may offer a reconsideration option.

Your question is whether the BZA could discreetly disclose a reconsideration option to denied applicants. This opinion assumes that such disclosure would be made by the BZA as a whole, as opposed to an individual member. Regarding discussions between an individual BZA member and a denied applicant, Virginia Code § 15.2-2308.1(A) allows an individual BZA member to engage in ex parte communications with an applicant before the applicant's hearing, so long as there is no discussion of facts or law. While § 15.2-2308.1(A) allows ex parte discussions under these parameters, it is silent on discussions between individual BZA members and denied applicants. Assuming that a BZA member was otherwise permitted to speak with a denied applicant, any such communication would be subject to applicable provisions of law including, without limitation, FOIA and the Virginia State and Local Government Conflict of Interests Act.

Conclusion

For the reasons discussed herein, it is my opinion that a BZA is not authorized to deviate from procedural rules found in local ordinances.

It is also my opinion that BZAs cannot "discreetly disclose" the existence of "reconsideration" options to only a limited and subjective group of denied applicants because the existence of any "reconsideration" options would be considered open to the public under FOIA.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General