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Building & Zoning – Zoning Ordinance - Article 9

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ARTICLE 9. BOARD OF ZONING APPEALS

Sec. 9-1. Membership and organization.

     9-1.1. Establishment of board; membership. Pursuant to the provisions of section 15.1-494 of the Code of Virginia, 1950, as amended, a board of zoning appeals is hereby created which shall consist of five (5) members who shall be residents of the county and shall be appointed by the circuit court. One (1) of the members of the board shall be appointed from among the members of the county planning commission. The terms of the members of the board, reappointments, the filling of vacancies and procedures for the removal of members shall be as set forth in section 15.1-494 of the Code of Virginia, 1950, as amended.

     9-1.2. Officers. The board of zoning appeals shall elect from among its members a chairman, a vice chairman, who shall serve in the absence of the chairman, and a secretary, all of whom shall serve annual terms and may succeed themselves.

     9-1.3. Staff and support services. With the approval of the county board of supervisors and within the limits of funds that may be appropriated for such purposes, the board of zoning appeals may employ or contract for such clerical, technical or legal services necessary for it to carry out its responsibilities.

Sec. 9-2. Procedures.

     9-2.1. Adoption of rules. The board of zoning appeals shall adopt rules necessary for the conduct of its affairs in keeping with the applicable provisions of this article and the provisions of title 15.1 of the Code of Virginia, 1950, as amended. Copies of such rules shall be available to the public.

     9-2.2. Forms for applications and appeals. The board of zoning appeals shall see that forms necessary for applications and appeals are available, which forms shall be provided to applicants by the zoning administrator.

     9-2.3. Meetings. The board of zoning appeals shall, in accordance with its rules, schedule regular meetings which shall be open to the public. The board may also hold such special meetings as it deems necessary in accordance with its rules.

     9-2.4. Public hearings. The board shall make no decision on any application or appeal until it has conducted a public hearing after giving public notice as required by the provisions of section 15.1-431 of the Code of Virginia, 1950, as amended, which provisions shall be incorporated within or attached to the rules of the board.

     9-2.5. Quorum. A quorum of not less than a majority of all members of the board shall be required for the conduct of any hearing and the taking of any action.

     9-2.6. Records. The board of zoning appeals shall keep minutes of its proceedings, including the vote of each member on each question, and shall keep records of its official actions. Minutes and records shall be public and shall be filed in the office of the board. The board shall submit an annual report of its activities to the county board of supervisors. 

Sec. 9-3. Powers and duties. 

     Pursuant to the provisions of section 15.1-495 of the Code of Virginia, 1950, as amended, the board of zoning appeals shall have such powers and duties as set forth in this section.

     9-3.1. Appeals. The board of zoning appeals shall have the power to hear and decide appeals from any order, requirement, decision or determination made by the zoning administrator or any other administrative officer in the administration or enforcement of this Ordinance.

     9-3.2. Variance.

  1. The board of zoning appeals shall have the power to authorize upon application in specific cases, such variance as defined in section 15.1-430 (p) of the Code of Virginia, 1950, as amended, from the terms of this Ordinance as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship, provided that the spirit of this Ordinance shall be observed and substantial justice shall be done.
     

  2. No variance shall be authorized by the board unless a property owner can show to the satisfaction of the board that:
     

    1. The property was acquired in good faith;
       

    2. By reason of the exceptional narrowness, shallowness, size or shape of the property at the time of the effective date of this Ordinance or subsequent amendment thereto, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property or of the condition, situation or development of property immediately adjacent thereto, strict application of the terms of this Ordinance would effectively prohibit or unreasonably restrict the utilization of the property; or that the granting of the variance requested will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant.
       

  3. No variance shall be authorized by the board unless it finds from the evidence presented that:
     

    1. Such variance will be in harmony with the intended spirit and purpose of this Ordinance;
       

    2. The strict application of this Ordinance would produce undue hardship, and that such hardship is not shared generally by other properties in the same zoning district and the same vicinity as the subject property;
       

    3. The authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance;
       

    4. The condition or situation of the property concerned is not of so general or recurring nature as to make reasonably practicable the formulation of a general regulation to be adopted by the board of supervisors as an amendment to this Ordinance;
       

    5. The variance will not include a departure from the use regulations set forth in this Ordinance.
       

  4. In the authorization of a variance, the board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be satisfied.

     9-3.3. Interpretation of official zoning district map. The board of zoning appeals shall have the power to hear and decide applications for interpretation of the official zoning district map where there is any uncertainty as to the location of a district boundary, and where the rules for interpretation of district boundaries set forth in Article 2 of this Ordinance do not satisfactorily resolve such uncertainty. After notice to the owners of the property affected by any such question, and after public hearing with notice as required, the board may interpret the map in such way as to carry out the intent and purpose of this Ordinance for the particular section or district in question. The board shall not have the power to change substantially the locations of district boundaries established by this ordinance.

     9-3.4. Special exceptions. The board of zoning appeals shall have the power to hear and decide applications for such special exceptions as may be authorized elsewhere in this Ordinance. In the granting of any such special exception, the board may impose such conditions relating to the use provided for as it may deem necessary in the public interest, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be satisfied.

     9-3.5. Prohibition on rezoning of property. No provision of this article shall be construed as granting the board of zoning appeals the power to rezone property, which power shall be vested in the board of supervisors. 

Sec. 9-4. Appeal procedure.

  1. An appeal to the board of zoning appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the county affected by any decision of the zoning administrator or by any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this Ordinance.
     

  2. An appeal shall be taken within thirty (30) days after the decision appealed from by filing with the zoning administrator and with the board, a notice of appeal specifying the grounds thereof. Copies of the notice of appeal shall also be submitted to any other individual, officer, department or agency involved in the appeal. The zoning administrator shall forthwith transmit to the board all papers and other materials constituting the record upon which the action appealed from was taken.
     

  3. An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board that, by reason of facts stated in the certificate, a stay would in his or her opinion cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order granted by the board or by a court of record, on application and with notice to the zoning administrator, and for good cause shown. 

Sec. 9-5. Applications for variances, special exceptions and interpretation of the official zoning district map.

  1. Applications for variances, special exceptions and interpretation of the official zoning district map may be made by any property owner, tenant, government official, department, board or bureau on forms provided for such purpose by the board of zoning appeals.
     

  2. Applications shall be submitted to the zoning administrator in accordance with rules adopted by the board. The zoning administrator shall transmit all applications and accompanying maps and documents to the secretary of the board who shall place the matter on the docket of the board. The zoning administrator shall also transmit copies of all applications to the county planning commission, which may send a recommendation to the board or appear as a party at the hearing.
     

  3. Substantially the same application for a variance, special exception or interpretation of the official zoning district map which has been decided by the board shall not be considered again by the board within twelve (12) months of the date of its decision, except that the board may, pursuant to its rules, reconsider an application if it finds that new or additional information is available which would have a direct bearing on the case and which could not reasonably have been presented at the initial hearing. 

Sec. 9-6. Public hearings and decisions.

  1. The board of zoning appeals shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within ninety (90) days of the filing of the application or appeal. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify an order, requirement, decision or determination appealed from.
     

  2. The concurring vote of not less than three (3) members of the board shall be necessary to reverse any order, requirement, decision or determination of an administrative officer, or to decide in favor of the applicant in any matter upon which it is required to pass under this Ordinance, or to effect any variance from the provisions of this Ordinance.
     

  3. The chairman of the board or in his or her absence the acting chairman may administer oaths and compel the attendance of witnesses. 

Sec. 9-7. Expiration of variance or special exception.

     A variance or special exception granted by the board of zoning appeals shall lapse and be of no effect if, after the expiration of one (1) year from the date of such action by the board, no construction or change in use pursuant to such variance or special exception has taken place, provided that the board may, for good cause shown, specify a longer period of time in conjunction with its action to grant a variance or special exception.

Sec. 9-8. Amendment of variance or special exception.

     The procedure for amendment of a variance or special exception granted by the board of zoning appeals, including any changes in the conditions attached thereto, shall be the same as for a new application.

Sec. 9-9. Enforcement of decisions.

     Decisions of the board of zoning appeals shall be administered and enforced by the zoning administrator. Noncompliance with any action taken by the board, including conditions imposed by the board, shall constitute a violation of the provisions of this Ordinance.

Sec. 9-10. Appeals from decisions of the board.

     Appeals from decisions of the board of zoning appeals shall be presented to the circuit court of the county in accordance with the procedures set forth in section 15.1-497 of the Code of Virginia, 1950, as amended. Any person or persons jointly or severally aggrieved by any decision of the board, or any taxpayer or any officer, department, board or bureau of the county may present to the circuit court a petition specifying the grounds on which aggrieved within thirty (30) days after the filing of the decision in the office of the board.

Sec. 9-11. Fees.

     A filing fee in such amount as established by general rule by the board of supervisors shall be submitted with each appeal to the board of zoning appeals and each application for a variance, special exception or interpretation of the official zoning district map.

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