This Virginia City Tried to Stop Habitat From Humanity From Building Homes – Even After Those Homes Were Already Built
/What does the Warrenton Board of Zoning Appeals tell us about the lengths that NIMBYs will go to block low-income housing?
In Warrenton, Virginia, a local Habitat for Humanity organization was put in legal (and financial) limbo when, after constructing two single-family homes and one duplex, it discovered that the lot lines for the duplex’s parcel were recorded incorrectly in 1954, preventing it from being sold.
This infuriating case poses a critical question: When is housing approved actually housing approved?
Often, when we talk about housing obstruction, we talk about the entitlement process — i.e. development applications, planning commissions, and city council meetings. This makes sense as receiving approval to build housing often involves a great deal of pushback from NIMBY community members and local government officials wanting to score points with those NIMBY constituents.
But in other cases, even local approval is not enough.
Fauquier Habitat for Humanity serves the rural county of Fauquier in northern Virginia, building new houses for low-income families and operating a neighborhood revitalization program. Their current focus is the area on and adjacent to Haiti Street/Eva Walker Park in Warrenton, a city of 10,000 people just east of the Blue Ridge Mountains. In 2017, the organization acquired land in the neighborhood with property on it that had deteriorated to the point of uninhabitability. It saw an opportunity to create affordable housing and made plans to erect a new duplex on the footprint of the existing property, and the Town of Warrenton proudly approved this rehabilitation.
The organization, relying on that approval, worked diligently to complete the homes and find buyers for them, only to be told by the title company following completion that the 1954 lot line error would prevent sale. The lot was created as one parcel of record in 1955, but the property had a two-family dwelling (duplex) since at least 1924, predating the Town’s first zoning ordinance. As a result, the property did not meet current minimum lot size, lot frontage, or side setback requirements for a two-family dwelling according to Town Ordinance Section 3-4.3.4 Lot and Yard Regulations.
The organization was forced to submit an application for a variance. Without it, residents would be prevented from moving into these homes, Fauquier Habitat for Humanity’s progress on other homes would be blocked, and the organization would face financial liability for the homes. “I have to have homeowners in these homes,” Melanie Burch, CEO of Fauquier Habitat for Humanity, told the Fauquier Times. “I owe [the Department of Housing and Community Development] either four people in those units by Oct. 11 or $400,000.”
Local staff argued in their report that a variance should be granted because “the existing lot size and frontage, as well as the historic footprint and location of the structure, are physical conditions of the property that creates a hardship,” a hardship that would be resolved by granting the variance. In addition, the homes were clearly consistent with the Town’s needs and goals, according to the Warrenton 2040 Comprehensive Plan.
One would think that the Town having already approved these homes and allowing their construction, as well as Town Staff supporting the variance, would be enough for the Warrenton Board of Zoning Appeals to approve it. But there’s more. The lot-line error was the Town’s own mistake, one they had many years to correct. The mistake was brought to the Town’s attention back in 2009 — almost ten years before Fauquier Habitat for Humanity owned the land.
But on May 5, 2026, the Warrenton Board of Zoning Appeals, an appointed rather than elected body — following a 30-minute closed session with the Town Attorney — denied Fauquier Habitat’s request for a variance. In doing so, the Board shirked its responsibility and commitment to meeting the Housing Goals laid out in the Town’s Comprehensive plan, prevented new housing, and made a decision contrary to the recommendation of the Town’s own staff.
This decision could have meant a loss of $1.4 million in state funding, as well as the added costs of attorney’s fees, since Fauquier Habitat filed an appeal with the Fauquier County Circuit Court. Fortunately, the Town electeds and staff worked with Fauquier Habitat to override the Board of Zoning Appeals’ decision, resulting in a circuit court judge overturning the denial of the variance and allowing this project to finally move forward.
Despite this victory, it is notable that this is not the first time a locality has attempted to block development, even after permits have been issued and construction has been completed.
Dallas, Texas
Last year, the Supreme Court of Texas ruled on a similar issue in Dallas, Texas. In PDT Holdings, Inc. v. City of Dallas (2025), PDT Holdings, Inc. and Phillip Thompson Homes, Inc. (“the Builder”) aimed to build a duplex townhome at 5230 Alcott Street in Dallas, “an irregularly-shaped, 6000-square-foot residential lot with an existing single-family structure destined for demolition.” Prior to preparing a construction plan, the Builder met with city officials several times to verify any applicable restrictions, and the Builder’s agent also conducted his own search for restrictions.
Hearing that there were none, the Builder submitted a construction plan to the City’s planning and zoning department for a permit to construct a three-story duplex with an overall height of around 36 feet. The City approved the plan and issued a permit. Construction began in October 2017.
But in January 2018, the City sent an inspector to assess the structure’s compliance with the City’s Development Code. The inspector determined that “the top of the parapet wall on the roof” slightly exceeded the 36-foot maximum height limit, and the City issued a stop-work order, suspending construction until the Builder amended the construction plan. While the Builder disagreed with the City’s citation, it amended the existing plan, changing only the parapet height but keeping everything else, including the structure’s overall height of 36 feet. The City approved the amended plan, issued another permit, and lifted its stop-work order. So far so good.
Six months later, and with the duplex 90 percent complete, the City issued another stop-work order. The City again cited an issue with the structure’s overall 36-foot height, but this time, the structure’s noncompliance was measured against a height restriction not originally mentioned: the residential-proximity-slope (RPS) ordinance. The City claimed that under that ordinance, a structure on the property could not exceed a height of 26 feet —10 feet lower than the height on the Builder’s approved plans and issued permits.
The Builder contacted city officials to discuss how the structure was noncompliant, but city officials offered no explanation and instead advised the Builder to apply for a variance from the Board of Adjustment (BOA). The Builder filed an application for a ten-foot variance, arguing that “extreme waste would otherwise result from the destruction of a near-complete residential structure.” But despite the City’s support, the BOA denied the variance. And without the variance, the duplex — 95 complete at a cost of over $1 million — was unusable because a certificate of occupancy would not be issued until a final inspection of the structure occurred, which could not be passed due to noncompliance with the RPS ordinance.
So the Builder sued. The trial court ruled in the Builder’s favor, estopping the City “from enforcing [...] [the RPS ordinance] or any ordinance related to the height of the structure [...] in existence at the time the plans were approved and permits were issued in 2017 and which the City did not raise prior to January 2018.” The City appealed and the Court of Appeals reversed, stating that nothing showed an “affirmative misrepresentation by the City,” and the Builder’s argument of reasonable reliance on the City’s actions was “unpersuasive” because the RPS ordinance was a matter of public record.
Following the Builder’s appeal of that ruling, the Supreme Court of Texas disagreed, finding that the city officials had affirmatively misled the builder about the height limit and that the Builder relied on these misrepresentations to their detriment.
While the facts differ in some ways, Fauquier Habitat faced a similar problem in Virginia:
It received all approvals and permits required under local ordinances,
relied upon those approvals to complete the construction of much needed homes,
and only until after substantial construction — in this case, completion of the homes — was the Town’s lot line error discovered, despite the fact that the Town has been aware of the error since 2009.
Situations like this breed distrust between localities and developers. If a developer does everything right by getting the appropriate permits and a locality can choose to deny or delay a project, anyway, then what becomes of the entitlement process?
The punchline is this: Cities shouldn't tie themselves into pretzels to avoid allowing housing to be built. All of these difficulties could have been avoided had the Warrenton Board of Zoning Appeals simply chosen to follow the recommendation of staff and issued the variance. Instead, it almost put years of work to waste — waste that would have left the local Habitat for Humanity facing an expensive bill and local residents without badly-needed housing. Luckily for those people who will move into the new homes, cooler heads prevailed — and so did the law.