Virginia Beach Fire Damage Rules: The Clocks and the Ceiling

What Section 15.2-2307 Provides

The statute deals with vested rights and nonconforming uses, and several of its subsections bear directly on a burned house.

A zoning ordinance shall permit the owner of any residential or commercial building damaged or destroyed by a natural disaster or other act of God to repair, rebuild or replace the building so as to eliminate or reduce the nonconforming features to the extent possible, without the need to obtain a variance as provided in section 15.2-2310.

Where such a building is damaged greater than fifty per cent and cannot be repaired, rebuilt or replaced except to restore it to its original nonconforming condition, the owner shall have the right to do so.

Why Does the Fifty per Cent Figure Appear at All?

It marks the point at which restoring the original nonconforming condition becomes the only practical route. Below it, the expectation is that you reduce the nonconformity as far as you reasonably can while putting the building back. Above it, where nothing short of restoring the original condition will work, the statute confirms you may do exactly that. It is a protection rather than a threshold you fail.

The First Clock

The limitation that owners most often discover too late. Unless the building is repaired, rebuilt or replaced within two years of the date of the natural disaster or other act of God, it may thereafter only be repaired, rebuilt or replaced in accordance with the ordinance as it then stands.

So the protected right to restore is a right with an expiry attached. Two years is generous by the standards of most deadlines in this field and it is not generous against an insurance dispute, an estate, a contractor shortage and a period of indecision run end to end.

The Second Clock

Running separately and on the use rather than on the building. A zoning ordinance may provide that nonconforming land, buildings and structures and their uses may be continued only so long as the then existing or a more restricted use continues, and such use is not discontinued for more than two years, and so long as the buildings are maintained in their then structural condition.

An empty, unrepaired house is capable of falling foul of all three limbs of that at once. It is not being used, it is not being maintained in its then structural condition, and time is passing.

Is the Fire Itself a Discontinuance?

Ordinarily a discontinuance implies an intent to abandon the use rather than an involuntary interruption, and a fire is plainly not a voluntary decision to stop using a house. That is the general principle rather than a guarantee about your locality's ordinance and your facts, and it is precisely the sort of question a Virginia land use lawyer answers properly and a buyer should not attempt to.

What Forfeits the Protection

The statute is explicit that the uses of nonconforming buildings shall conform to the regulations whenever the square footage of the building is enlarged, or the building is structurally altered as provided in the Uniform Statewide Building Code.

A zoning ordinance may further provide that no nonconforming use may be expanded, and that no nonconforming building may be moved on the same lot or to any other lot not properly zoned to permit the use.

The practical instruction follows directly: an owner rebuilding under this protection who takes the opportunity to add square footage may lose the very status the rebuild depended on.

We publish no determinations about whether a particular property is nonconforming, whether a particular fire qualifies as an act of God, or whether a clock has expired on any address. Those are questions for the zoning administrator and for a Virginia land use lawyer, and they are worth asking early.

What the Rebuild Must Comply With

Work to repair, rebuild or replace requires a building permit and must comply with the Uniform Statewide Building Code at section 36-97 and following, and with the local floodplain regulations adopted as a condition of participation in the National Flood Insurance Program.

The building code point is worth dwelling on because it runs against the pattern in most of the country. The USBC is a statewide code, so the technical requirements for the work itself do not change between Virginia Beach, Norfolk, Chesapeake or Suffolk. Zoning does change, and zoning is where the constraints in this file live.

The Local Half: Oceana

In 2005 Naval Air Station Oceana was included in the Base Realignment and Closure Commission's list of recommended closures, over safety concerns about commercial and residential development in areas near the base where noise and accident potential are elevated.

Virginia Beach responded with a programme of zoning ordinances and economic incentives. Land use in the AICUZ and the accident potential zones is regulated by Article 18 of the City Zoning Ordinance, the AICUZ Overlay Ordinance, and the city adopted the APZ-1 and Clear Zone Master Plan in 2008 to guide the future use of property in those areas.

What Does the Ordinance Actually Say?

That no use or structure is permitted on property within Accident Potential Zone 1 or the Clear Zone unless designated as Compatible in Table 2 of section 1804, provided that any use or structure not so designated shall be permitted as a replacement of the same use or structure where the replacement is of equal or lesser density or intensity than the original. That proviso is the whole of an owner's route back, and it is a ceiling rather than a permission to improve.

The Ceiling in Practice

Any office, business or industrial use existing before 14 February 2006 that is not compatible in APZ-1 may continue as nonconforming and may be replaced by another use, provided the new use is of equal or lesser intensity. Any nonconforming use may be changed or added onto provided the resulting operation is of equal or lesser intensity than the existing use.

To obtain an intensity and compatibility determination in APZ-1, an owner submits a letter to the zoning administrator describing both the existing use and the proposed one. That is the mechanism, it is available before anyone commits to a design, and it is free of the cost of finding out the hard way.

The Navy's Own Interests

Separately from the zoning, the United States Navy acquired easements and fee simple ownership over certain lands in the noise and accident potential zones around the base. The specific terms vary, and they generally prohibit all residential and people-intensive commercial development.

An owner whose parcel is burdened by such an easement faces a restriction that sits in the property records rather than in the zoning ordinance, and it is worth a title search establishing whether one exists before any rebuild is designed.

Noise Attenuation

A further requirement that catches rebuilds rather than repairs. Noise attenuation measures in accordance with the Uniform Statewide Building Code are required for new residential construction, including additions, located within the noise zones.

It is a construction cost rather than a prohibition, and it is one that a contractor unfamiliar with this city may not have allowed for in a quote.

Your Options, Compared

Repair within the window. Keeps the protected right, avoids the forfeiture triggers and, on a conforming house, engages none of this.

Rebuild the same footprint within the window. Available under the statute, and near the base capped at equal or lesser density or intensity.

Rebuild larger. The one route that can forfeit the status the rebuild relies on, and the one the Oceana ordinance is designed to prevent.

Wait past two years. Not a strategy. It converts a protected right into whatever the ordinance permits at that later date.

Across Virginia Beach and Hampton Roads

Exposure to the base varies enormously across the city. The neighbourhoods closest to it are covered under Oceana, London Bridge and the flight path neighbourhoods, the resort strip under the Oceanfront and resort area, and the north under Great Neck, Lynnhaven and Bayside. Further pages deal with Kempsville and Centerville, Sandbridge, Pungo and the southern rivers and the wider Hampton Roads cities.

Those localities include Norfolk, Chesapeake, Portsmouth, Suffolk, Newport News, Hampton, Poquoson, Williamsburg, Smithfield, Franklin and Gloucester, alongside the surrounding counties. The Uniform Statewide Building Code reaches all of them identically; their zoning ordinances do not.

The full index is on our service area index.

Rules Questions

When Exactly Did My Two Years Start?

From the date of the event. Establishing that date precisely is the single most useful thing an owner can do, and the fire report carries it.

Does a Repair Reset the Clock?

The statute speaks of the building being repaired, rebuilt or replaced within two years of the date of the event. What that requires in your circumstances is a question for a lawyer rather than an assumption.

Is My House Nonconforming at All?

The zoning administrator will tell you. A conforming house is not relying on any of these protections, which makes it a much simpler file.

Primary Sources

Code of Virginia section 15.2-2307 — vested rights not impaired; nonconforming uses
Code of Virginia section 15.2-2310 — variances, as referenced in the rebuild provision
Virginia Uniform Statewide Building Code, Code of Virginia section 36-97 and following
Virginia Beach City Zoning Ordinance Article 18 and section 1804 Table 2
Virginia Beach AICUZ programme and the APZ-1 and Clear Zone Master Plan (2008)