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Building Heights and Historic Preservation, a Blow for the NIMBY's - Anne Owens v. City Council of the City of Norfolk, et al.

After an astounding nearly two-years of litigation, Virginia’s Fourth Circuit found for a private property owner and the City of Norfolk in August following a challenge by a private citizen of the City’s ability to modify height restrictions in the City’s Ghent historic districts. Apparently, in the Ghent historic districts in Norfolk, maximum building heights may be altered through a legislative act by the City Council through a special exception process which culminates in the enactment of a “Certificate of Appropriateness”. In anticipation of the Christ and Saint Luke’s Episcopal Church being awarded such a certificate to increase the height of a proposed building addition from 35 feet to 53 feet, a private citizen filed a complaint challenging the process via its enabling legislation and on constitutional grounds. 

The crux of the complaint was based on two basic premises: (i) the City did not have the appropriate authority to legislatively approve the increase in building height because such an act would amount to an “illegal variance” (i.e. such a special exception requires at least some kind of judicial or quasi-judicial review by the Board of Zoning Appeals), and (ii) the Certificate of Appropriate process followed by the City failed to provide her adequate equal protection and due process protections.

The interesting twist in this case from a land use/zoning perspective is the Court expounds on the extent of the City’s legislative authority to modify Zoning Ordinances through the Commonwealth’s historic preservation statute § 15.2-2306. According to Judge Thomas, through § 15.2-2306, the General Assembly has empowered localities to enact historic preservation ordinances, the ordinances “may” provide for a separate review board to administer the ordinance, and an ordinance “shall” specify which parties would have the right to appeal a determination.  Simply put, the City’s Zoning Ordinance provided for all of these things (i.e. that the City’s Planning Commission would be this review board, that only a party applying for a Certificate of Appropriateness would have the right to appeal if denied, etc.)  Therefore, the enabling legislation, § 15.2-2306, clearly allows an avenue for legislative special exceptions separate than the enabling legislation which contemplates quasi-judicial review by a Board of Zoning Appeals for variances.

Here's a PDF of the Judge Thomas’ unsigned letter opinion.