(a)

A board of zoning appeals ("BZA") consisting of five members shall be appointed by the Circuit Court of Accomack County. Members of the BZA may receive such compensation as may be authorized by the board of supervisors. Members shall be removable for malfeasance, misfeasance, or nonfeasance in office, or for other just cause by the appointing authority upon written charges and a hearing held after at least 15 days notice. A member whose term has expired shall serve until his successor is appointed and qualifies for office. Appointments for vacancies occurring for reasons other than by expiration of term shall in all cases be for the unexpired term.

(b)

The term of office shall be for five years, except that of the first five members appointed, one shall serve for five years, one for four years, one for three years, one for two years, and one for one year. Members shall hold no other public office in the county, except that one of the five appointed members shall be an active member of the planning commission. Members may be reappointed to succeed themselves.

(c)

Any member of the BZA shall be disqualified to act upon a matter concerning property in which the member has a legal interest or where the member otherwise has a personal interest in a transaction or contract under the State and Local Government Conflict of Interests Act ("Act"). Any such member shall not be disqualified where the Act provides an exemption or where the Act allows, and the member elects, disclosure in lieu of disqualification.

(d)

The BZA shall elect annually from its own membership a chairman and vicechairman. The chairman shall conduct meetings of the BZA and shall have such other powers as assigned under section 106-255 of this chapter. The vice-chair shall act in the absence of the chairman. Officers may succeed themselves. The BZA may elect as its secretary either one of its members or a qualified individual who is not a member of the BZA. A secretary who is not a member of the BZA shall not be entitled to vote on any matter.

(Ord. of 11-16-2022(2))

The BZA shall have the following powers and duties:

(1)

To hear and decide appeals from any order, requirement, decision, or determination made by an administrative officer, including the zoning administrator, in the administration or enforcement of this chapter or of any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the BZA's judgment of whether the administrative officer was correct. The determination of the administrative officer is presumed to be correct. At the public hearing on the appeal, the administrative officer shall explain the basis for his determination, after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence. The BZA shall consider any applicable ordinances, laws, and regulations as applied to the facts of the case.

(2)

To authorize upon appeal or original application in specific cases a variance, as defined in Code of Virginia, § 15.2-2201, from the terms of this chapter, provided that the applicant proves by a preponderance of the evidence that his application meets the standards and criteria for a variance set out in state law as follows:

a.

The applicant shows that (i) the strict application of the terms of the ordinance would unreasonably restrict the utilization of the property, or (ii) the granting of the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon existing on the effective date of the ordinance from which the variance is sought, or (iii) the variance will alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with disability;

b.

The property interest for which the variance is requested was acquired in good faith and any hardship was not created by the applicant;

c.

The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of the geographical area under consideration;

d.

The condition or situation of the property at issue is not of so general or recurring a nature as to make reasonably practicable general regulation to be adopted as an amendment to this chapter;

e.

The granting of the variance does not result in a change in use or allow a use that is not otherwise permitted on such property, or constitute a change in the zoning classification of the property;

f.

The relief or remedy sought by the applicant is not available through a special exception/special use permit or the process for modification of this chapter at the time of the application; and

g.

The variance is not contrary to the purpose of the ordinance in question.

In authorizing a variance the BZA may impose such conditions regarding the location, character and other features of the proposed structure as it may deem necessary in the public interest, and may require a guarantee or bond to insure that the conditions imposed are being and will continue to be complied with. The property for which the variance is granted shall be treated as conforming under state law and this chapter; however, any such structure permitted by the variance may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance is required. Where the expansion is proposed within an area of the site or part of the structure for which a variance is required, the approval of an additional variance shall be required.

(3)

Interpretation. The BZA shall have the authority 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 any such question, and after public hearing with notice as required by Code of Virginia, § 15.2-2204, the BZA may interpret the map in such a way as to carry out the intent and purpose of the ordinance for the particular section or district in question. The BZA shall not have the power to change substantially the location of district boundaries as established by ordinance.

(4)

Special exceptions/special use permits.

a.

The BZA shall have the authority to accept, hear and decide applications for special exceptions/special use permits as may be authorized by the chapter. The BZA shall have the authority to grant special exceptions and issue special use permits pursuant to this chapter and Code of Virginia, § 15.2-2310. Such applications shall be made to the zoning administrator or other authorized official in accordance with rules and regulations adopted by the BZA. No such special exception/special use permit shall be authorized except after notice and hearing as required by Code of Virginia, § 15.2-2204.

b.

Before issuance of a special exception/special use permit, the BZA shall consider the following:

1.

Whether the proposed use will adversely impact the general character of the surrounding neighborhood;

2.

Whether the proposed use will adversely impact public facilities;

3.

Whether the proposed use will facilitate the preservation and creation of an attractive and harmonious community;

4.

Whether the proposed use will adversely impact the environment or scenic, historic and waterfront areas;

5.

Whether the proposed use will adversely impact property rights and values of adjoining and nearby property owners;

6.

Whether the proposed use will promote the public health, safety, and general welfare;

7.

Whether the proposed use is in conformance with good zoning practice and with state and local laws, ordinances, and regulations; and

8.

Whether granting the special exception/special use permit, with or without conditions, is justified by public necessity and convenience.

c.

The BZA shall have the authority to establish such conditions as it may deem necessary to assure and protect the health, safety, convenience, and welfare of the general public. Conditions may include, but need not be limited to, requirements for additional lot area, increased setbacks, enhanced landscaping and buffering, special lighting, noise and odor control, restrictions on hours of operation and duration of the use, environmental controls, and location of streets including ingress and egress.

d.

The BZA shall not extend or renew any special exception/special use permit, unless the applicant complies with the procedures as set forth in section 106-253 of this chapter.

e.

All special exceptions/special use permits granted by the BZA shall expire two years after the date of issuance unless construction or the use for which said permit was granted has actually commenced or unless the special exception/special use permit is extended by state law or by action of the board of supervisors.

f.

The BZA may require a guarantee or bond with sufficient surety to ensure that any of the conditions imposed pursuant to this article are being and will continue to be complied with.

g.

A special exception/special use permit shall not be required for a temporary field office on a construction site. Such a use shall be considered as permitted by right.

h.

No special exception/special use permit shall be required if prohibited under Code of Virginia, Chapter 22 of Title 15.2.

i.

The BZA shall not consider the same or substantially the same application for a special exception/special use permit within three months of the date the previous application was acted on.

j.

The BZA shall have the power to revoke a special exception/special use permit if it determines that there has not been compliance with the terms and conditions of the special exception/special use permit. No special exception/special use permit may be revoked except after a public hearing and notice as provided in Code of Virginia, § 15.2-2204.

(Ord. of 11-16-2022(2))

The BZA shall not have the power to rezone property or to base its decisions on the purpose and intent of local ordinances duly adopted by the board of supervisors.

(Ord. of 11-16-2022(2))

(a)

Applications for special exceptions/special use permits may be made by any property owner, or authorized tenant or agent thereof. The application shall contain a site plan and a description of site conditions. In the case of a temporary use, the applicant shall agree in writing to remove any and all structures or improvements supporting the use from the subject property on or before the expiration of any temporary special exception/special use permit granted by the BZA.

(b)

Applications for variances may be made by any person, property owner, tenant, governmental official, department, board, or bureau and shall be decided in strict accordance with state law.

(c)

All such applications shall be made to the zoning administrator, or other designated administrative officer, in accordance with state law and with rules and regulations adopted by the BZA. Any applicant for a special exception/special use permit or variance shall attempt to obtain written comments from the owners and occupants of adjoining properties. The applicant shall certify the accuracy of the information provided.

(d)

The application and accompanying maps, plans or other information required by the BZA shall be transmitted promptly to the secretary of the BZA, who shall place the matter on the docket. The zoning administrator shall also transmit a copy of the application to the county's planning commission, which may send a recommendation to the BZA or appear at the hearing.

(e)

No application for a special exception/special use permit or variance shall be considered or acted upon by the BZA until after notice and hearing as required by Code of Virginia, § 15.2-2204.

(Ord. of 11-16-2022(2))

(a)

An appeal to the BZA may be taken by any person aggrieved or by any officer, department, board or bureau of the county or municipality 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, including the interpretation and application of the ordinances set out in this chapter. Any written notice of a zoning violation or a written order of the zoning administrator shall include a statement informing the recipient that he may have a right to appeal the notice of violation or written order within 30 days and that the decision shall be final and unappealable if not appealed within 30 days. The notice 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.

(b)

The 30-day appeal period shall not commence until the statements required in subsection (a) above are given and any written order is sent by registered or certified mail, or posted at, the last known address or usual place of above of the property owner or its registered agent. There shall be a rebuttable presumption that the property owner's last known address is that shown on the county's current real estate tax assessment records or the address of a registered agent that is shown in the records of the state corporation commission.

(c)

Such appeal shall be taken within 30 days after the decision appealed from by filing with the zoning administrator, or other designated administrative officer, and with the BZA, a notice of appeal specifying the grounds thereof. Upon receiving a complete application and fee, the zoning administrator, or other designated administrative officer, shall forthwith transmit to the BZA all the papers constituting the record upon which the action on appeal was taken.

(d)

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

(e)

A decision by the BZA on an appeal shall be binding on the owner of the property that is the subject of the appeal only if the owner has been provided notice of the zoning violation or written order of the zoning administrator. The owner's actual notice of such notice of violation or written order, or active participation in the appeal hearing, shall waive the owner's right to challenge the validity of the BZA's decision due to failure of the owner to receive the notice of violation or written order.

(f)

If the BZA's attempt to reach a decision on an appeal results in a tie vote, the matter may be carried over until the next scheduled meeting at the request of the person filing the appeal.

(Ord. of 11-16-2022(2))

(a)

The BZA shall adopt, and may alter and rescind, rules and regulations as it may consider necessary, provided such rules and regulations are consistent with this chapter and the laws of the commonwealth.

(b)

The BZA may, by resolution, fix a schedule of regular meetings, and may also fix the day or days to which any meeting shall be continued if the chairman is finds and declares that weather or other conditions are such that it is hazardous for members to attend the meeting. Such findings shall be communicated to the members and the press as promptly as possible. No further advertisement is required.

(c)

The BZA may set fees for applications and appeals filed with the BZA. Such fees shall not exceed the costs of advertising the appeal for public hearing and other reasonable costs.

(d)

Applications may be mailed or delivered to the BZA in care of the zoning administrator, who shall transmit a copy to the secretary of the county's planning commission and to any individual, official, department or agency of the county that may be concerned with the subject matter of the application.

(e)

Meetings shall be called by the chairman or by majority vote of the BZA.

(f)

Any ex parte communications prior to a hearing shall conform with Code of Virginia, § 15.2-2308.1.

(g)

Any materials relating to a particular case shall be made available to the applicant, appellant, or aggrieved person no more than three business days of providing such materials to a member of the BZA. Any materials provided to a member for the BZA shall be made available for public inspection.

(h)

The chairman or, in his absence, the vice-chairman, may administrator oaths and compel the attendance of witnesses.

(i)

The BZA shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact. It shall keep records of its examination and other official actions, all of which shall be immediately filed in the office of the BZA and shall be a public record. The minutes of the BZA shall be posted on the Accomack County website within seven days of approval.

(j)

All meetings of the BZA shall be open to the public.

(k)

The BZA shall offer an equal amount of time to the applicant, appellant, or other aggrieved persons, and the county staff to address the application under consideration.

(l)

The BZA may refuse to consider any application or appeal until such time that the applicant or appealing party complies with these rules and regulations.

(m)

To the extent permitted by state law, the BZA may postpone or delay a final decision on an appeal or on any application for special exception/special use permit or variance or appeals in order to obtain additional information or wherever there is a legal question involved. The applicant shall not be required to re-advertise the application unless required by state law of deemed necessary by the BZA.

(Ord. of 11-16-2022(2))

(a)

The BZA shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof, and provide due notice to the parties in interest, as required by state law. No appeal of an administrator's determination, request for variance, application for an interpretation of the zoning district map, or application for a special exception/special use permit shall be heard until after notice and hearing as provided by Code of Virginia, § 15.2-2204; however, when giving required notice to the owners or their agents, or occupants of abutting property and property immediately across the street from the property affected, the BZA may give such notice by first-class mail instead of registered or certified mail.

(b)

A quorum for taking action shall be not less than a majority of all the members of the BZA. No action of the BZA shall be valid unless authorized by a majority vote of those present and voting.

(c)

A favorable vote of three members of the BZA shall be necessary to reverse any order, requirement, decision, or determination of any administrative official or to decide in favor of the applicant on an application for a variance or a special exception/special use permit. In the event of a tie vote in any appeal taken under section 106-254 above, the matter shall be carried over until the next scheduled meeting at the request of the person filing the appeal.

(d)

The BZA shall render a decision within 90 days of the filing of the application or appeal. In exercising its power, the BZA may (i) reverse or affirm, wholly or partly, or may modify, the order, requirement, decision, or determination of an administrative officer; (ii) approve, approve with conditions, or deny an application for a variance; and (iii) approve, approve with conditions, or deny an application for a special exception/special use permit.

(e)

The BZA shall keep minutes of its proceedings and other official actions, which shall be filed in the office of the BZA and shall be retained as public records.

(Ord. of 11-16-2022(2))

(a)

Any person or persons jointly or severally aggrieved by any decision of the BZA, or any taxpayer or any officer, department, board or bureau of the county or municipality, may present to the circuit court of the county a petition specifying the grounds on which aggrieved within 30 days after the BZA's decision.

(b)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the BZA and shall prescribe therein the time within which a return thereto must be made and served upon the secretary of the BZA, or if no secretary exists, on the chair of the BZA, which shall not be less than ten days and may be extended by the court. Once the writ of certiorari is served, the BZA shall have 21 days or as ordered by the court to respond. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

(c)

The BZA shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(d)

Any review of a decision of the BZA shall not be considered an action against the BZA, and the BZA shall not be a party to the proceedings; however, the BZA shall participate in the proceedings to the extent required by state law. The board of supervisors, the landowner, and the applicant before the BZA shall be necessary parties to the proceedings. The court may permit intervention by any other person or persons jointly or severally aggrieved by any decision of the BZA.

(e)

Any party may introduce evidence in the proceedings in the court in accordance with the Rules of Evidence of the Supreme Court of Virginia.

(f)

The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(g)

In the case of an appeal from the BZA to the circuit court of an order, requirement, decision or determination of a zoning administrator or other administrative officer in the administration or enforcement of any ordinance or provision of state law, the findings, and conclusions of the BZA on questions of fact shall be presumed to be correct. The appealing party may rebut that presumption by proving by a preponderance of the evidence, including the record before the BZA, that the BZA erred in its decision. Any party may introduce evidence in the proceedings in the court. The court shall hear any arguments on questions of law de novo.

(h)

In the case of an appeal by a person of any decision of the BZA that denied or granted an application for a variance, the decision of the BZA shall be presumed to be correct. The petitioner may rebut that presumption by proving by a preponderance of the evidence, including the record before the BZA, that the BZA erred in its decision.

(i)

In the case of an appeal by a person of any decision of the BZA that denied or granted application for a special exception/special use permit, the decision of the BZA shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that the BZA applied erroneous principles of law, or where the discretion of the BZA is involved, the decision of the BZA was plainly wrong, was in violation of the purpose and intent of the zoning ordinance, and is not fairly debatable.

(j)

Costs shall not be allowed against the board, unless it shall appear to the court that it acted in bad faith or with malice in making the decision appealed from. In the event the decision of the BZA is affirmed and the court finds that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making the return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the county may request that the court hear the matter on the question of whether the appeal was frivolous.

(Ord. of 11-16-2022(2))

(a)

Each applicant, at the time of making an application for a special exception/special use permit for a mobile home shall execute a statement or form that outlines the specific requirements and conditions set forth in this chapter with which the applicant shall comply, if the special exception/special use permit is granted. The execution of said statement or form shall indicate that the applicant understands the requirements and conditions and agrees to comply therewith.

(b)

Each applicant for a special exception/special use permit for a mobile home, except those in an approved mobile home park, shall attempt to obtain written comments from the occupants and owners of adjoining properties and shall present same to the BZA.

(c)

Any mobile home which is lawfully nonconforming or for which a permanent special exception/special use permit has been granted without any conditions to the contrary, shall be considered a permitted use and may be enlarged or expanded in conformance with the requirements of this chapter.

(d)

A temporary special exception/special use permit may be granted for a period of time not to exceed 36 months. The applicant shall apply for a renewal of the temporary special exception/special use permit at least one month prior to each 12-month period from date of permit.

(e)

The applicant shall apply at least two months prior to the termination date for a new special exception/special use permit to relocate the mobile home in a lawful site. If the special exception/special use permit was issued for a specific occupant, the applicant shall apply immediately upon termination of occupancy for a special exception/special use permit to relocate the mobile home to a lawful site.

(f)

In the case of demonstrated hardship, the BZA may extend a permit for use by a specific occupant. Any such extended permit shall terminate and become null and void on the date specified in the permit or when the approved occupant no longer resides in the mobile home, whichever is the first to occur.

(g)

Prior to issuance of a temporary special exception/special use permit, the applicant shall agree in writing to remove the mobile home to a legal location on or before the end of the period of time specified in the permit.

(h)

As used herein, the term "mobile home" shall include a "manufactured home," as defined in Code of Virginia, § 36-85.3.

(Ord. of 11-16-2022(2))