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becomes immediately obvious that the applicant is not complying with those conditions. "You mean to say that the BZA is powerless to do anything about it?" he asked.
Crigler answered that the BZA must instruct its administrator “to go out and make a determination" with the applicant having the right to appeal the administrator’s decision. The BZA is not powerless, he insisted, adding that in the DeMent case, the BZA failed to act according to Virginia law.
“As I understand the record, this (revocation) was done in conjunction with the Zoning Administrator,” said Judge Snead.
“No sir,” Crigler responded. He argued that the Zoning Administrator “never issued a statement” that the special use permit was revoked and never gave DeMent the right to appeal.
“Well, now we’re talking about administrative details, aren’t we?” asked Snead, adding that “law should follow common sense.”
Strict Construction
Citing again the ordinance provision prohibiting the issuance of a building permit in a flood plain, Davis contended that the special use permit granted DeMent by the BZA was, “in effect," a building permit. According to the Commonwealth Attorney, Virginia's Supreme Court has ruled that the BZA can’t issue a variance unless it is within the framework of the statute and ordinances. The BZA, he argued, "has no discretion. Strict construction applies here...They can only grant a variance when it is shown that the ordinance places a hardship on a particular property" as opposed to a class of property. Robert Fitzgerald, attorney for the BZA, contended that the ordinance must be read in its entirety rather than relying solely on the section that prohibits building in a flood plain. He said it's necessary to consider everything that pertains to the area where the DeMent property is located. Fitzgerald noted that DeMent’s property is zoned RB-1 as are the entire villages of Sperryville, Flint Hill and
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