This article serves to present clearly the responsibilities of the public bodies which administer this ordinance. The responsibilities include those delegated by Section [Title]15.2, Chapter 22, Articles 1—8, of the Code of Virginia, 1950, as amended, as well as those responsibilities left to local option and assigned by enactment of this ordinance.

The Amherst County Board of Zoning Appeals, hereinafter referred to as the board of appeals, is hereby reestablished.

1402.01. Membership. A board consisting of five (5) members, who shall be residents of Amherst County, shall be appointed by the circuit court of the county, with appointments and terms of office as follows:

1.

The board of appeals members appointed hereunder shall serve respectively for terms of one (1) year, two (2) years, three (3) years, four (4) years and five (5) years. Subsequent appointments shall be for terms of five (5) years each. Members may be reappointed to succeed themselves.

2.

No member shall hold any public office in the county; however, one (1) member may be a member of the commission.

3.

A member whose term expires shall continue to serve until his successor is appointed and qualified.

4.

The secretary of the board of appeals shall notify the circuit court at least thirty (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.

5.

Any member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the circuit court after hearing held after at least fifteen (15) days' notice.

6.

A member when he knows he will be absent from or will have to abstain from any application at a meeting shall notify the chairman twenty-four (24) hours prior to the meeting of such fact.

1402.02. Rules of procedure. The board of appeals shall observe the following procedures:

1.

The board of appeals shall adopt rules and forms in accordance with the provisions of this ordinance and consistent with other ordinances of the county and general laws of the commonwealth for the conduct of its affairs.

2.

The board of appeals shall elect a chairman and vice-chairman from its own membership 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. The election of officers shall be held at the first meeting of the board of appeals after July 1 of each year.

3.

The board of appeals shall keep a full public record of its proceedings and other official actions, shall file the same in the office of the board of appeals, and shall submit a report of its activities to the board of supervisors at least once each year.

4.

All meetings of the board of appeals shall be open to the public.

5.

Any member of the board of appeals shall be disqualified to act upon a matter before the board with respect to property in which the member has an interest.

6.

The meetings of the board of appeals shall be held at the call of the chairman and at such other times as a quorum of the board of appeals may determine. The board by resolution may fix a schedule of regular meetings, and may also fix the day or days to which any meeting shall be continued if the chairman, or vice chairman if the chairman is unable to act, finds and declares that weather or other conditions are such that it is hazardous for members to attend the meetings. Such findings shall be communicated to the members and the press as promptly as possible. All hearings and other matters previously advertised for such meeting in accordance with Va. Code Section 15.2-2312 shall be conducted at the continued meeting and notice shall be given in accordance with the Virginia Freedom of Information Act.

7.

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

8.

For the conduct of any hearings and the taking of any action, a quorum shall be at least three (3) members.

9.

A favorable vote of at least three (3) members of the board of appeals shall be necessary to reverse any order, requirements, decision, determination of any administrative official or to decide in favor of the applicant on any matter upon which the board of appeals is required to pass.

10.

A tie vote among those present and voting defeats the motion, resolution or issue voted upon.

1402.03. Duties and powers. The board of appeals shall have the following duties and powers:

1.

To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of Article 7, of Chapter 22, of Title 15.2 of the Code of Virginia, or provisions of this ordinance adopted pursuant thereto. The determination of the administrative officer shall be presumed to be correct. At a hearing on an 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 board of appeals shall consider any applicable ordinances, laws, and regulations in making its decision. For the purposes of this subsection, determination means any order, requirement, decision, or determination made by an administrative officer. Notice and hearing shall be held as provided by Section 15.2-2204 of the Code of Virginia, 1950, as amended. 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 of appeals may give such notice by first-class mail rather than by registered or certified mail.

2.

To authorize upon appeal or original application in specific cases a variance as defined in this ordinance, provided that the burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that his application meets the standard for a variance as set out in this subsection. A variance shall be granted if the evidence shows that the strict application of the terms of the ordinance would unreasonably restrict the utilization of the property or that the granting of the variance would alleviate a hardship due to the physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance, and (i) the property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance; (ii) the granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; (iii) 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 ordinance; (iv) the granting of the variance does not result in a use that is not otherwise permitted on such property or a change in the zoning classification of the property; and (v) the relief or remedy sought by the variance application is not available through a special exception.

No variance shall be considered except after notice and public hearing as set forth in Section 15.2-2204 of the Code of Virginia, 1950, as amended. 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 of appeals may give such notice by first-class mail rather than by registered or certified mail.

In authorizing a variance the board of appeals 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 insure that the conditions imposed are being and will continue to be complied with. The property upon which a property owner has been granted a variance shall be treated as conforming for all purposes; however, the 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 under this ordinance. 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.

To hear and decide, upon appeal or original application, 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 Section 15.2-2204 of the Code of Virginia, 1950, as amended, the board of appeals may interpret the map in such way as to carry out the intent and purpose of the ordinance 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 of appeals may give such notice by first class mail rather than by registered or certified mail. The board of appeals shall not have the power to change substantially the locations of district boundaries as established by this ordinance.

4.

No provision of this ordinance shall be construed as granting the board of appeals the power to rezone property or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by the board of supervisors.

1402.04. Financing the board of appeals. Within the limits of funds appropriated by the board of supervisors, the board of appeals may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the board of appeals may receive such compensation as may be authorized by the board of supervisors.

1402.05. Appeals to the board of appeals. Requests for special exception permits, administrative review, or variances shall follow procedures specified by Article X herein.

1402.06. Appeal of decision of board of appeals.

1.

Any person or persons jointly or severally aggrieved by any decision of the board of appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the county may file with the clerk of the circuit court for the county a petition that shall be styled "In Re: date Decision of the Board of Zoning Appeals of Amherst County" specifying the grounds on which aggrieved within thirty (30) days after the final decision of the of the board of appeals.

2.

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of appeals and shall prescribe therein the time within which a return thereto must be made and served upon the secretary of the board of zoning appeals, which shall not be less than ten (10) days and may be extended by the court. 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 of appeals and on due cause shown, grant a restraining order.

3.

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

4.

The board of appeals 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 the portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

5.

In the case of an appeal from the board of appeals to the circuit court of an order, requirement, decision, or determination of a zoning administrator or other administrative officer under Section 1402.03.1, the findings and conclusions of the board of appeals on questions or fact shall be presumed to be correct. The appellant may rebut the presumption by proving by a preponderance of the evidence, including the record before the board of appeals, that the board of appeals erred in its decision. The court shall hear any arguments on questions of law de novo.

6.

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

7.

In the case of an appeal from the board of appeals to the circuit court, any party may introduce evidence in the proceedings in the court in accordance with the Rules of Evidence of the Supreme Court of Virginia.

8.

Costs shall not be allowed against the locality or the governing body 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 board 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 cost 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 board may request that the court hear the matter on the question of whether the appeal was frivolous.

(Ord. of 10-18-05(8); Ord. of 12-19-06(2); Ord. No. 2019-0002, § 1, 5-21-19)

The commission shall serve in an advisory capacity to the board of supervisors and the board of appeals in the administration of this ordinance. Specially, the commission will have the following responsibilities:

1403.01. Review applications for amendments to the text of this ordinance or to the official zoning map and make recommendations to the board of supervisors as necessary and in accordance with Section 1004 herein.

1403.02. Review application for special exception permits and make recommendations to the board of appeals or board of supervisors as necessary and in accordance with Section 1003 herein.

1403.03. Review and make comments and/or recommendations on special matters referred to the commission by the board of supervisors or board of appeals as required in this ordinance or for the purpose of carrying out the intent of this ordinance.

The board of supervisors shall have the following responsibilities in the administration of this article:

1404.01. Review and decide requests for amendments to the text of this ordinance as specified in Section 1004 herein.

1404.02. Review and decide requests for amendments to the official zoning map as specified in Section 1004 and Article V herein.

1404.03. Review and decide requests for zoning permits for special exceptions.

(Ord. of 12-19-06(2))