Board of Zoning Appeals
Creation, Membership and Organization
The Board of Zoning Appeals shall consist of five residents of the town appointed by the Campbell County Circuit Court. Their terms of office shall be for five years each, and the term of one member shall expire each year. The secretary of the board shall notify the court at least 30 days in advance of the expiration of any term of office, and shall also notify the court promptly if any vacancy occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves. Members of the board shall hold no other public office in the town except that one may be a member of the planning commission. A member whose term expires shall continue to serve until his or her successor is appointed and qualified.
With the exception of the secretary, the board shall elect from its own membership its officers who shall serve annual terms as such and may succeed themselves. The board may elect as its secretary either one of its members or a qualified individual who is not a member of the board. A secretary who is not a member of the board shall not be entitled to vote on matters before the board. For the conduct of any hearing a quorum shall be not less than a majority of all the members of the board. No action of the board shall be valid unless authorized by a majority vote of those present and voting. The board may make, alter, and rescind rules and forms for its procedures, consistent with articles of the town and general laws of the commonwealth. The board shall keep a full public record of its proceedings and shall submit a report of its activities to the town council at least once a year.
Wthin the limits of funds appropriated by the town council, the board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the board may receive such compensation as may be authorized by the town council. Any board member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court which appointed him or her after a hearing held after at least 15 days notice.
Powers and Duties
The Board of Zoning Appeals shall have the following powers and duties:
- To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this chapter. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The board shall consider the purpose and intent of any appplicable ordinances, laws and regulations in making its decision.
- To authorize, upon appeal, variances under the provisions of sections 86-733 through 86-736.
- To hear and decide appeals from the decision of the Zoning Administrator after notice and hearing as provided by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and peoperty immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.
- To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by the question, and after public hearing with notice as required by Code of Virginia, § 15.2-2204, the board may interpret the map in such a way as to carry out the intent and purpose of this chapter for the particular section or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.
- No provision of this section shall be construed as granting the board the power to rezone property or to base board decisions on the merits of the purpose and intent of ordinances duly adopted by the town council.
Applications for Variances
Applications for variances may be made by any property owner, tenant, government official, department, board or bureau. Applications shall be made to the zoning administrator in accordance with rules adopted by the board. The application and accompanying maps, plans or other information shall be transmitted promptly to the secretary of the board who shall place the matter on the docket to be acted upon by the board. No variances shall be authorized except after notice and hearing as required by Code of Virginia, § 15.2-2204. The zoning administrator shall also transmit a copy of the application to the planning commission which may send a recommendation to the board or appear as a party at the hearing. If an application for a variance is denied, the board shall not consider substantially the same application for a period of one year.
An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the town affected by any decision of the zoning administrator or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this chapter. Notwithstanding any Charter provision to the contrary, any written notice of a zoning violation or a written order of the zoning administrator shall include a statement informing the recipient that he or she may have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within 30 days. The appeal period shall not commence until the statement is given. The zoning violation or written order shall include the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal. The appeal shall be taken within 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. The zoning administrator shall then trasmit to the board all the papers constituting the record upon which the action appealed from was taken. The fee for filing an appeal shall not exceed the costs of advertising the appeal for public hearing nad reasonable costs.
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 on notice to the zoning adminstrator and for good cause shown.
In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer by subject to change, modification or reversal by any zoning administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his or her position in good faith reliance on the action of the zoning administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer or through fraud. The 60-day limitation shall not apply in any case where, with the concurrence of the town attorney, modification is required to correct clerical or other nondiscretionary errors.
Procedure on Appeal
The board 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 make its decision within 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. The concurring vote of a majority of the membership of the board shall be necessary to reverse any order, requirement, decision or determination of an adminstrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter or to effect any variance from this chapter. The board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the board and shall be public records. The chairperson of the board, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses.
Requirements for Granting of Variance; Powers Regarding Variances
The board of zoning appeals shall, upon appeal under the procedure set forth in sections 86-733 through 86-735, authorize such variances from the terms of this chapter as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement of the provision will result in unnecessary hardship; provided, however, that the spirit of this chapter shall be observed and substantial justice done, as follows: When a property owner can show that his or her property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance from which this section is derived, 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, the strict application of utilization of the property or where the board is satisfied, upon the evidence heard by it, that the granting of such variance will alleviate a clearly demonstrable hardship, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of this chapter.
No such variance shall be authorized by the board unless it finds that:
(1) The strict application of this chapter would produce undue hardship.
(2) The hardship is not shared generally by other properties in the same zoning district and the same vicinity.
(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 chagned by the granting of the variance.
No variance shall be authorized except after notice and hearing as required by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.
No variance shall be authorized unless the board finds that the condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this chapter.
In authorizing 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 complied with.