Your project is stalled. The zoning administrator says your plans don’t comply. Special exceptions and variances serve very different purposes under Virginia law. Choosing the wrong one can waste months and fees and, in some cases, force applicants to start over. To avoid those pitfalls, you need to understand the legal standards, who decides your application, and how courts treat appeals.

Special Exceptions Authorize Uses, Not Dimensional Relief

A special exception (sometimes called a special use permit or conditional use permit) allows a use that the zoning ordinance does not permit by right but specifically authorizes if certain conditions are met. The Virginia Code defines a special exception as “a special use that is a use not permitted in a particular district except by a special use permit granted” under the zoning statute. In other words, the governing body (usually a board of supervisors or city council) determines whether the proposed use is appropriate at that location and may impose conditions to mitigate impacts. A special exception could be the appropriate vehicle for uses that may be suitable in some locations but not in all; the Planning Commission and governing body review the application through a two‑step public hearing to ensure the surrounding area is not adversely affected.

Because granting a special exception is a legislative act, the board exercises broad discretion to balance private proposals against public welfare. Courts defer to that discretion under the “fairly debatable” standard: if evidence supports competing views, the legislative decision must be upheld. In Manors, LLC v. Board of Supervisors of Albemarle County, the Court of Appeals reiterated that granting or denying a special exception is legislative and therefore reviewed under the fairly debatable standard. The court explained that legislative acts are presumed reasonable; the applicant can rebut this presumption with probative evidence of unreasonableness, but the board need only show that an objective and reasonable person could reach a different conclusion. In Board of Supervisors of Rappahannock County v. Long, this principle resulted in reinstatement of a board’s denial of a contractor’s yard: the court found that land‑use impacts, such as scenic and property‑value concerns, made the denial at least fairly debatable. Special exception applications are rarely overturned on appeal if the record contains competent evidence of impact.

Practical guidance for special exceptions

• Focus on impacts. Demonstrate compatibility with the comprehensive plan and small‑area plans through traffic and noise studies, stormwater analyses, lighting plans, and landscaping. Provide credible evidence of how the project will not harm adjacent properties or community character.
• Engage stakeholders early. Meet with neighbors, homeowners and civic associations, and county staff before filing. Early engagement can head off opposition and shape conditions that satisfy decision‑makers.
• Expect and propose enforceable conditions. Boards often impose conditions addressing hours of operation, buffering, or other impacts. Offer reasonable, measurable conditions to show you take mitigation seriously.

Variances Provide Dimensional Relief, Not New Uses

A variance is a limited safety valve for dimensional requirements (such as lot width, height, setbacks, or coverage) when unusual site conditions make strict enforcement unreasonable. The Virginia Code defines a variance as “a reasonable.” deviation from those provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk, or location of a building … when the strict application of the ordinance would unreasonably restrict the utilization of the property”. The statute emphasizes that a variance “shall not include a change in use.” Localities echo this limitation. Arlington County notes that variances can address relief from lot area, height limits, coverage, or setback rules, but cannot change the zoning district or allow a use not permitted by the ordinance.

Variances are decided by the Board of Zoning Appeals (BZA), not the governing body, and the BZA operates as a quasi‑judicial body bound by statutory criteria. After the General Assembly amended § 15.2‑2309 in 2015, the strict “undue hardship” test was replaced with a more flexible standard: the applicant must show that strict application of the ordinance would unreasonably restrict utilization of the property or create a hardship due to physical conditions and that (i) the property was acquired in good faith, (ii) the hardship is not self‑created, (iii) the variance is the minimum necessary, (iv) there is no substantial detriment to adjacent property, and (v) the relief does not allow a use change. Arlington’s guidelines summarize these criteria, noting that variances require evidence of hardship tied to physical conditions and cannot substitute for special exceptions or rezonings.

Virginia courts strictly enforce the statutory limits on BZA authority. In Avonlea LLC v. Moritz (2024), the Court of Appeals held that a BZA may only grant variances from provisions regulating the shape, size, or area of a lot or building; because Alexandria’s ordinance merely regulated access to parking and not the dimensions of a structure, the BZA lacked authority to grant relief. The court emphasized that the BZA is a creature of statute, and any variance must be confined to dimensional provisions. This decision underscores that applicants cannot use variances to circumvent ordinances governing site operations or access.

Practical guidance for variances

• Compile a meticulous record. Because the BZA acts quasi‑judicially, assemble surveys, photographs, expert analyses, and alternative designs to show unique physical conditions and that the requested relief is the least necessary to allow reasonable use.
• Prove uniqueness and lack of self‑creation. Demonstrate that the hardship arises from the lot’s shape, topography, or pre‑existing constraints and is not shared by neighboring lots. Purchasing a property with known constraints is not fatal but designing around avoidable conflicts and then seeking relief often is.
• Demonstrate minimal impact. Show that granting the variance will not materially affect adjacent properties or the zoning scheme. Neighbor support letters can help.

Choosing the Correct Application: Ask Two Questions

1. Are you seeking approval of what you want to do or relief from how you must do it? If the proposed use is only allowed conditionally in the district, you need a special exception. If your use is permitted by right but a dimensional standard blocks your plan, a variance may be appropriate.
2. Does the decision‑maker have authority? A governing body cannot waive dimensional rules through a special exception; only the BZA may grant variances. Conversely, a BZA cannot authorize a use that the ordinance does not permit; such relief requires a special exception or rezoning. Filing the wrong application may lead to an automatic denial because the reviewing body lacks authority.

Appeals and Litigation Risk

The appeal paths for special exceptions and variances differ, but both require a strong record.

• Special exceptions: Because these are legislative acts, denials or approvals are presumed valid. Courts will not disturb a legislative decision if it is “fairly debatable,” meaning that reasonable minds could reach different conclusions based on the evidence. Applicants seeking to overturn a denial must show that the board acted unreasonably by failing to consider impacts or disregarding the record. Conversely, opponents challenging an approval must provide probative evidence that the decision lacked a reasonable basis. The record must address all ordinance criteria and public concerns.
• Variances: Appeals from BZA decisions proceed by writ of certiorari to the circuit court. The Code provides that the BZA’s decision is presumed correct; a petitioner must show by a preponderance of the evidence that the BZA erred in its decision[8]. Because the BZA functions quasi‑judicially, courts are more willing to examine whether the statutory criteria were met. A well‑documented hardship can rescue a variance denial on appeal, while a variance granted without statutory authority (as in Avonlea) is vulnerable.

Recent high‑profile litigation illustrates the stakes. In Morgan v. Board of Supervisors of Hanover County, neighbors challenged a rezoning and special exception for a 1.1‑million‑square‑foot Wegmans distribution center in Brown Grove. The Virginia Supreme Court unanimously held that the neighbors had standing to challenge the approvals. The plaintiffs allege the county violated state and local law by granting a special permit and exception and by limiting public participation. Although construction is nearly complete, the project remains in litigation. The case underscores that special exceptions and rezonings can face court review years after approval, especially when procedural compliance and public notice are questioned.

Common Pitfalls that Derail Projects

• Wrong filing, wrong forum. Filing a special exception when the issue is dimensional (or vice versa) leads to near‑automatic denial because the decision‑maker lacks authority. Similarly, trying to convert a use through a variance invites reversal.
• Thin evidentiary record. For special exceptions, failure to address compatibility criteria (traffic, noise, visual impacts, and comprehensive plan consistency) makes denials more defensible and approvals more vulnerable. For variances, absence of detailed surveys, topographic data, or alternative analyses undermines claims of unique hardship.
• Self‑created hardship. Designing a project that violates known standards and then seeking a variance is often fatal. Courts and BZAs look for good‑faith acquisition and non‑self‑created conditions.
• Neglecting stakeholder outreach. Unaddressed neighbor and civic concerns can mobilize opposition. Public support or at least the absence of organized opposition is often decisive for special exceptions.
• Inflexible design. Refusing to adjust building placement, height, or operation to comply with standards or conditions can convert a negotiable case into a denial.

Bottom Line and Best Practices

• Diagnose the problem early. Map your development objectives against the zoning ordinance. Determine whether the relief sought relates to the use (special exception) or dimensional standards (variance) and confirm the decision‑maker’s authority.
• Build a robust record. For special exceptions, demonstrate compatibility through professional studies, community engagement, and enforceable conditions. For variances, document unique physical constraints, explore alternatives, and show that the requested relief is minimal and necessary.
• Plan for potential appeals. Assume that approvals may be challenged or denials appealed. A thorough record that ties each criterion to evidence will improve your chances under the fairly debatable and certiorari standards.
• Engage experienced counsel. Early consultation with land‑use counsel can clarify strategy, avoid procedural missteps, and protect your investment.

The distinction between a special exception and a variance is not merely academic—it determines who hears your case, what standards apply, and how courts will review the outcome. A misfiled application can stop a project cold, while a carefully prepared and correctly targeted submission can see your plans through. If you have questions about which relief is appropriate for your project or need assistance navigating Virginia’s land‑use process, please contact Andrew Gregg at (703) 284‑7254 or agregg@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Any views expressed herein are those of the author and may not reflect the views of the firm or its clients.