Jerry Winchester and his wife, Jane Kay, huddled all night on the second floor of their Fairfax County house during Hurricane Isabel last year, listening to the water rising "and everything floating around."
That afternoon the water was gone, but 35 years' worth of possessions were ruined, Winchester said, and the house would be salvageable only if it were jacked up and the wooden underpinnings and main floors and walls replaced.
But like many of their neighbors in the low-lying New Alexandria neighborhood, they vowed to stay -- in this case, by replacing the ruined Cape Cod with a modular home. They put down a $1,000 deposit with the manufacturer and were ready to apply for a building permit after clearing a list of other permitting steps.
However, the home they chose is 16 inches wider than allowed under current county zoning regulations, which were written after their original home was built. That didn't seem to be a big deal. Just apply for a zoning variance, which is a case-by-case exception to the rules; the county had granted them all the time.
Not anymore. Because of a Virginia Supreme Court ruling this spring, the Fairfax County Board of Zoning Appeals has rejected or deferred every variance request since April.
That's about 110 disappointed sets of homeowners. Last year, in contrast, the panel approved in full or in part 161 variances and amendments to existing variances, and denied 33. Before the court ruling in April, the board had approved 56 requests and denied eight in 2004.
"It's been almost a year since I've been out of my home," said Winchester, an AT&T retiree. "I'm 69 years old. If this would have happened 30 years ago I would probably be in jail" for an angry reaction, "but I've mellowed a lot. I just grit my teeth at these things."
The April 23 state Supreme Court decision says explicitly that under state law, local zoning appeals boards have the authority to grant variances only in the case of "unnecessary hardship," which the court defined as that which denies "all reasonable beneficial use of the property." That's a stricter standard than the Fairfax appeals board had been following. The court cited the definition in vacating variances granted in Fairfax and Pulaski counties and in reinstating a variance granted in Virginia Beach.
"No one can meet this test," said Brian McCormack, a private attorney who represented the Fairfax zoning appeals board in the Supreme Court case, "because anyone who has a house already has a reasonable beneficial use of the property. That's the Catch-22."
Other boards in the state are still granting variances, including those in Arlington County and Alexandria, because their members have decided that they still need flexibility, zoning staffs say. In Loudoun and Prince William counties, where variances are less common because most of the neighborhoods were developed after the zoning laws were passed, not much has changed.
John and Candi Carpenter of Annandale figured their situation qualified as a hardship. At an Aug. 10 hearing, John told the Fairfax board that he had cancer and only a limited time to live. He couldn't wait for a variance that board members indicated he would have easily received just six months ago.
"The time constraint is very difficult for me," Carpenter, 53, a retired Navy pilot, said during the hearing.
Carpenter said afterward that he was diagnosed with malignant melanoma nine years ago and that it has recurred. He wants a variance to expand his one-car garage, he said, because he can't work on two beloved vintage cars unless there are two bays. Currently, his 1968 Shelby GT350 and 1967 Mustang convertible are stacked on a lift to fit in the space.
The small lot won't accommodate a two-car garage without extending into the side yards beyond the allowed limits, he said. The neighbors don't object, he added.
Carpenter told the zoning panel that the hobby is the only relief he has from his illness. "It's one of the things that work for me. I guess I could turn to drugs or something else."
Carpenter's personal situation seemed to make members of the appeals board shift in their seats, and it spurred several to express their regrets about the ruling's impact.
Board member V. Max Beard said having to deny Carpenter's request "is very upsetting to me" and one of several "very sad situations" before the board.
Member Nancy Gibb said: "This is the kind of variance we used to grant. . . . It will have no adverse impact on the neighborhood and would improve the use of Mr. Carpenter's property immensely."
Zoning appeals board members, as well as some local lawyers and remodelers, say Fairfax County homeowners have been particularly affected by the ruling because it's one of the most developed counties in the state. Many homes predate current zoning laws, making most additions or improvements nonconforming uses.
"Many of the homes in Fairfax County were built before the most severe setbacks were imposed in 1978," said appeals board member James R. Hart. "If we can't grant variances . . . that precludes second-floor additions on existing ramblers and makes it very difficult to do any additions or decks or improvements."
To break the variance impasse, according to appeals board members, either the General Assembly must amend the law or the county Board of Supervisors must amend the zoning ordinance. "We have to obey what the court says," said member Hart. "The ruling doesn't allow us to grant variances."
During their hearings, they suggest that disappointed homeowners contact their local and state legislators for relief.
But according to many familiar with the process, the supervisors think the appeals board has been too liberal with variances in the past. The supervisors had a role in the court decision that changed the variance rules -- represented by the county attorney, they took the side of a group of McLean homeowners who had objected to variances being sought by a neighbor who wanted to build a large house.
Falls Church zoning lawyer Grayson P. Hanes said the case demonstrates the tension between the appeals board and the supervisors. "For as long as I've represented clients, the Board of Zoning Appeals variances, to the Board of Supervisors, have been like sunlight to Dracula. They see it as their ordinance, and they see a variance as a circumvention of the ordinance. They hate variances and they always have."
Gerry Connolly, chairman of the Board of Supervisors, said that the county attorney is "drafting an ordinance amendment and other measures that we might want to consider . . . to try to remedy the situation and make sure that our citizens have every opportunity to make the changes they want to make, without undue financial hardship."
He said, "We're most concerned about particular hardship cases in New Alexandria that were badly damaged by Hurricane Isabel. Those homeowners have legitimate needs . . . to make repairs and reconstruct their homes. And the county wants to make sure that those people are absolutely not harmed." Both the county supervisors and the zoning appeals board are out of session until next month; the General Assembly won't be back in session until January.
Connolly, however, indicated that changes would not go as far as the zoning appeals board has gone in the past.
The board, he said, had "strayed far afield of what the existing law permits. And until this case, it hadn't been challenged. The Supreme Court ruling says what you've been doing is illegal."
The McLean homeowners whose objections to a large new house led to the Supreme Court ruling say they weren't trying to change the whole system, just rein in one project. Don Cochran and his wife, Joann, along with others in their neighborhood, said the homeowner who requested the variance had no hardship and could have built an almost equally large house without it. When the appeals board granted the variance over their objections, they went to court.
"We had heard that the board of zoning appeals never granted a variance if the neighbors objected, so we never expected this to be approved," said Don Cochran.
Because the court ruling carries their name -- the Fairfax case was consolidated with two other cases -- they hear the words "Cochran ruling" uttered with disgust at every zoning appeals hearing.
"It's rather disarming to hear one's name mentioned over and over," Cochran said. And to hear it in connection with a case like the Carpenters' "is like talking against motherhood."