(a)

General authority. This chapter shall be enforced by the zoning administrator who shall be appointed by the council. The zoning administrator shall serve at the pleasure of the council. Compensation for the administrator shall be fixed by resolution of the council.

(b)

Authority on behalf of council; duties. The zoning administrator shall have all necessary authority on behalf of the council to administer and enforce this chapter and carry out the duties prescribed in this article and elsewhere in this chapter, including, in specific cases, the authority to make findings of fact in connection with the administration, application and enforcement of this chapter and, with concurrence of the town attorney, conclusions of law regarding determinations of vested rights accruing under the provisions of article XI of this chapter. Duties of the zoning administrator shall include the following:

(1)

Interpretation of chapter. Subject to appeal to the board of zoning appeals as provided in this chapter, the zoning administrator shall be the final authority in the interpretation of the provisions of this chapter.

(2)

Review and issuance of zoning permits and certificates of zoning compliance. The zoning administrator shall review all applications for zoning permit and certificates of zoning compliance required by this article and shall approve or disapprove each based on compliance or noncompliance with the provisions of this chapter.

(3)

Review and approval of site plans. The zoning administrator shall review all site plans submitted under the provisions of this chapter and shall approve or disapprove each site plan based on compliance or noncompliance with the provisions of this chapter.

(4)

Enforcement and correction of violations. The zoning administrator shall use best efforts to prevent violations of this chapter and to detect and secure the correction of violations in accordance with the provisions of this article.

(5)

Maintenance of records and map. The zoning administrator shall maintain records of all official actions taken with respect to administration and enforcement of this chapter and shall retain copies of all zoning permit applications, certificates of zoning compliance, site plans and related information as a permanent record. The zoning administrator shall also maintain the official zoning map.

(6)

Other duties. The zoning administrator shall have such additional duties as specifically described elsewhere in this chapter.

(Code 2003, § 195-9; Ord. of 8-12-2013)

All departments, officials and public employees of this jurisdiction which are vested with the duty or authority to issue permits or licenses shall conform to the provisions of this chapter. They shall issue permits for uses, buildings or purposes only when they are in harmony with the provisions of this chapter. Any such permit, if issued in conflict with the provisions of this chapter, shall be null and void.

(Code 2003, § 195-10; Ord. of 8-12-2013)

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Final site plan means the plan required for issuance of a building and/or land disturbance permit.

Preliminary site plan means the plan to accompany rezoning or conditional use permit requests; however, final rezoning or conditional use permit approval shall be contingent upon approval of a final site plan.

(b)

Intent. Zoning permits/site plan reviews are intended to ensure compliance with this chapter and proper design in types of development which can have deleterious effects on their surroundings. These effects are subject to modification or reduction through the physical design of such development. Review of the design, therefore, is aimed at the greatest possible benefit to the community as a result of building and site design.

(c)

Permit required; application. Buildings, signs, and structures shall be constructed, reconstructed, erected, enlarged, structurally altered, moved or converted to accommodate a different use only after a zoning permit has been obtained from the zoning administrator. Applications for zoning permits shall be submitted to the zoning administrator by the owner of the property involved or by an agent of the owner or tenant of the property, with the written consent of the owner. Applications shall be submitted on forms developed by the zoning administrator for such purposes. A zoning permit issued by the zoning administrator shall indicate only that the requested use is permitted by right by this chapter. The issuance of a zoning permit shall not negate full compliance with site plan review requirements.

(d)

Developments subject to site plan review. The following types of development shall require a site plan review prior to issuance of any zoning permit, including petitions for a rezoning request or for a conditional use permit request:

(1)

All commercial and industrial facilities, including off-street parking.

(2)

All institutional facilities, such as schools, hospitals and clubs.

(3)

All residential developments, involving more than two dwelling units in one building or on one lot.

(4)

Conditional use permits (as specified in this chapter).

(e)

Plan requirements. The zoning administrator shall require an appropriate number of clearly legible copies for preliminary site plans and final site plans. The preliminary site plan shall be prepared by a professional engineer, certified land surveyor, licensed architect, certified landscape architect or other similarly qualified person and shall include the following:

(1)

Name and address of the petitioner and the owner.

(2)

Name and location of the development.

(3)

Property lines by metes and bounds.

(4)

Existing and proposed zoning.

(5)

Type of proposed zoning.

(6)

The owner, present use and existing zoning of all abutting property.

(7)

Existing and proposed streets, easements, rights-of-way and other reservations.

(8)

Ingress and egress points.

(9)

Proposed parking areas, materials for same and number of spaces.

(10)

Existing and proposed buildings.

(11)

Date, scale of not less than one inch equals 100 feet, and north point.

(12)

Limits of established 100-year floodplain.

(13)

Major natural features.

(14)

Required setbacks and areas for landscaping and buffering.

(15)

Location of existing water, storm and sanitary sewer lines.

(16)

Existing and proposed topography.

(17)

Location of proposed water mains, fire hydrants, pipe sizes, grades and direction of flow.

(18)

Generalized erosion control measures.

(19)

Location of proposed utility lines, indicating where they already exist and whether they will be underground.

(20)

Location of proposed storm and sanitary sewer systems, both surface and subsurface, showing pipe sizes, grade flow and design loads.

(21)

Vicinity map at a scale no smaller than one inch equals 600 feet, showing all streets and property within 1,000 feet of the subject property.

(22)

Existing and proposed curblines and sidewalks.

(23)

Location of proposed signs.

(24)

Proposed location and materials for disposal of refuse and other solid waste.

(25)

Recreation and/or open spaces.

(26)

Name and address of persons preparing the site plan.

(27)

Proposed buildings and structures, to include:

a.

Distance between buildings;

b.

Number of stories;

c.

Area in square feet of each floor;

d.

Number of dwelling units or guest rooms;

e.

Structures above height regulations.

(28)

Proposed location of outdoor lighting.

(29)

Landscaping plan as more particularly described in section 36-686.

(30)

Any additional information deemed necessary by the zoning administrator to ensure compliance with the provisions of this chapter.

(f)

Preliminary site plan fee. The preliminary site plan shall be accompanied by a check payable to the town in the amount set forth in section 36-8.

(g)

Final site plan requirements. The final site plan shall include, in addition to the items specified for a preliminary site plan, the following:

(1)

Name and address of owners of record of all adjacent properties.

(2)

Current zoning boundaries, including surrounding areas to a distance of 300 feet.

(3)

Final erosion and sediment control plans and stormwater management plans.

(4)

Location of watercourses, marshes, rock outcroppings, wooded areas and single trees with a diameter of ten inches measured three feet from the base of the trunk.

(5)

Location of buildings existing on the tract to be developed and on adjacent tracts within a distance of 100 feet, indicating whether existing buildings on the tract are to be retained, modified or removed.

(6)

Proposed streets and other ingress and egress facilities (indicating curblines, sidewalk lines, public right-of-way lines and profiles and cross sections of streets).

(7)

Layout of off-street parking.

(8)

Proposed location, direction, power and time of use of outdoor lighting (not required of industrial development).

(9)

Location, size and design of proposed signs.

(10)

Elevations of buildings to be built or altered on site.

(h)

Administrative responsibility.

(1)

Duties. The zoning administrator shall be responsible for checking zoning permit applications and site plans for general completeness and compliance with this chapter. The zoning administrator shall see that all examination and review of the zoning permit applications and site plans are completed by other appropriate approving authorities with prior written approval by the zoning administrator; particular information may be omitted from required plans when, due to the limited nature of scope of the development, the zoning administrator determines such information is not necessary for the evaluation of the site plan or for maintaining a record of the matter.

(2)

Application process. The zoning administrator shall approve or disapprove the zoning permit applications and site plans in accordance with this chapter and other appropriate approving authority recommendations. The zoning administrator shall then return two copies of the zoning application and/or site plan, together with modifications, noting thereon any changes that will be required, to the applicant not later than 45 days from the date of submission, except under abnormal circumstances.

(3)

Adjustment in approved site plan. After a site plan has been approved by the zoning administrator, minor adjustments of the site plan which comply with the spirit of this article and other provisions of this chapter with the intent of other appropriate approving authorities in their approval of site plans and with the general purpose of the comprehensive plan for development of the area may be approved by the zoning administrator with concurrence of the other appropriate approving authorities. Minor adjustment from an approved site plan without the zoning administrator's approval, or any major deviations, shall void the site plan and require the applicant to resubmit a new site plan for consideration.

(4)

Building and occupancy permits. No building permit shall be issued for a building in an area in which site plan review is required unless the construction proposed by such building permit is in conformance with the approved site plan. No occupancy permit shall be issued in such an area for a use which is not in conformance with the approved site plan or zoning permit. Failure to comply with an approved site plan shall constitute a violation of this chapter.

(5)

Appeal. An appeal of any decision made by the zoning administrator concerning a zoning permit application or site plan review procedure may be made to the board of zoning appeals.

(Code 2003, § 195-11; Ord. of 8-12-2013)

Land may be used or occupied and buildings structurally altered or erected may be used or changed in use only after a certificate of occupancy has been issued by the administrator. Such a permit shall state that the building or the proposed use, or the use of the land, complies with the provisions of this chapter. A similar certificate shall be issued for the purpose of maintaining, renewing, changing or extending a nonconforming use. A certificate of occupancy either for the whole or a part of a building shall be applied for simultaneously with the application for a zoning permit. The permit shall be issued within ten days after the erection or structural alteration of such building or part has conformed with the provisions of this chapter.

(Code 2003, § 195-12; Ord. of 8-12-2013)

(a)

Intent of special use provisions. The special use permit procedure is intended as a means for the council, after view and recommendation by the planning commission, to authorize certain uses which, although generally appropriate in the district in which they are permitted, have potentially greater impacts on neighboring properties or the community in general than uses which are permitted by right. The special use permit procedure provides the opportunity for the council to review each proposed special use and impose such conditions as reasonably necessary to ensure the use will be compatible with the surrounding area and will be consistent with the purposes of this chapter.

(b)

Special use permit required.

(1)

When required. A use indicated as permitted subject to a special use permit in this chapter shall be considered a special use, and shall be authorized only upon approval of a special use permit by the council in accordance with the provisions of this article.

(2)

Relation to other permits. Zoning permits, certificates of zoning compliance, site plans and other reviews and approvals required by this chapter are required for special uses in the same manner as for other uses. No zoning permit or certificate of zoning compliance for a special use or for a building devoted to a special use shall be issued unless a special use permit has been approved.

(3)

Existing uses. A use lawfully existing at the effective date of the ordinance from which this chapter is derived or subsequent amendment thereto which is specified as a special use in the district in which it is located and for which no special use permit has been approved shall not be considered a nonconforming use because of its classification as a special use. However, no zoning permit or certificate of zoning compliance or other approval involving expansion of such use or reconstruction, enlargement or moving a building devoted to such use shall be issued unless a special use permit is approved.

(c)

Application for special use permit.

(1)

Submission of applications. Applications for special use permits shall be submitted to the zoning administrator and may be filed by the owner of the property or, with the written consent of the owner, the contract purchaser of the property or an agent of the owner.

(2)

Applicant's report. Every application for a special use permit shall be accompanied by a report from the applicant describing the proposed special use and explaining the manner in which it complies with the requirements and standards of this article.

(3)

Content of plan. Every application for a special use permit shall be accompanied by plans, with such number of copies as determined by written policy of the zoning administrator, drawn to scale and showing the following:

a.

Area, shape and dimensions of the property involved and existing and proposed street lines, easements, watercourses, drainageways and floodplains;

b.

Existing and proposed uses of land, buildings and structures, and the number and types of dwelling units on the property, where applicable;

c.

Dimensions and heights of proposed buildings, structures or additions, and existing buildings and structures to remain, and the dimensions of yards and setbacks with respect to property lines and existing and proposed street lines;

d.

Elevation drawings of proposed buildings, structures or additions, and existing buildings and structures;

e.

Existing and proposed driveways providing access to the site and the arrangement, dimensions and improvement of off-street parking and vehicular circulation areas;

f.

Buffers, screening, fencing, major landscaping, pedestrian walkways and similar features, existing wooded areas, significant trees and other vegetated areas to be retained, location and improvement of trash receptacle areas and location, type, height and intensity of outdoor lighting, if provided;

g.

Existing permanent signs to remain and proposed permanent signs, including location, lettering, dimensions, lighting, and means of attachment or support.

(4)

Waiver of plan elements or additional plans. The zoning administrator may waive plan elements that are unnecessary to determine compliance with this chapter or to maintain a record of the case. The zoning administrator may require such additional information as necessary to determine compliance with this chapter or to assist the planning commission and council in evaluating potential impacts of a proposed special use.

(d)

Procedure for issuance of special use permits.

(1)

Review by zoning administrator. The zoning administrator shall review each application for a special use permit and forward the application to the planning commission. At such time as requested by the commission, the zoning administrator shall submit to it a report indicating the manner in which the proposed special use complies or does not comply with the provisions of this chapter and any recommendations the zoning administrator may have regarding approval, disapproval or suggested conditions or limitations to be attached.

(2)

Action by planning commission. The planning commission shall review each special use permit application for compliance with the provisions of this chapter and shall provide a recommendation to the council in accordance with the following:

a.

The commission shall give notice and hold at least one public hearing as required by Code of Virginia, § 15.2-2204. A joint public hearing may be held with the council. The commission may continue any public hearing or, after closing a public hearing, the commission may continue the matter for consideration and action at a subsequent meeting, but shall not reopen the public hearing without giving additional notice.

b.

After holding a public hearing, the commission may recommend approval or disapproval of the special use permit or that conditions be imposed to ensure compliance with requirements of this chapter. In making its recommendation, the commission shall consider at least the criteria specified in this article.

c.

Action by the commission shall be in the form of a motion, giving the reasons for its action and the vote of each member, and shall be recorded in the commission's records. Each motion and recommendation to the council shall include a statement of the relationship of the proposed use to the comprehensive plan.

d.

In any case where the commission is unable to adopt a motion to recommend approval, approval with conditions or disapproval, it shall forward a written report to the council stating such fact and summarizing its discussions on the matter.

e.

Failure of the commission to provide a recommendation or report to council within 100 days after the first meeting of the commission after the special use permit application was referred to the commission shall be considered a recommendation of approval, unless the application has been withdrawn by the applicant.

(3)

Action by council. The council shall take action on each special use permit application in accordance with the following.

a.

The council shall give public notice as required by Code of Virginia, § 15.2-2204, and shall hold at least one public hearing. A joint public hearing may be held with the planning commission.

b.

After receiving the recommendation of the planning commission and after holding a public hearing, the council may approve and disapprove the special use permit application and may impose conditions that it deems reasonable and necessary to ensure the special use will comply with the requirements of this chapter. Action of the council shall be by resolution, which shall include the reasons for its action.

c.

Conditions imposed in connection with any residential special use permit where affordable housing, as defined in Code of Virginia, § 15.2-2201, is proposed by the applicant shall be consistent with the objective of providing affordable housing. When imposing conditions on residential projects specifying materials and methods of construction or specific design features, the council shall consider the impact of the conditions upon the affordability of housing.

d.

The council shall take action on every special use permit application within one application, unless the application is withdrawn by the applicant prior to expiration of such period. For purposes of this provision, the date of submission of an application shall be the date upon which the zoning administrator certifies that the application is complete.

e.

The council may require a guarantee or bond to ensure that conditions imposed will be satisfied.

f.

The council may specify a date for expiration of a special use permit as a condition of approval.

(e)

General requirements for approval of special use permits. A special use permit shall be approved by the council only if it finds that the proposed special use and related plans:

(1)

Will not be contrary to the purposes of this chapter;

(2)

Will not be in conflict with the objectives of the comprehensive plan for the town;

(3)

Conform with all applicable provisions of this article and all other applicable requirements of the district in which such use is located; and

(4)

Include satisfactory provisions for or arrangement of the following, where applicable:

a.

Sewer, water and other public utilities.

b.

Ingress and egress, including access for fire and other emergency vehicles;

c.

Off-street parking; loading and vehicular circulation, including adequate consideration of the safety of motorists and pedestrians;

d.

Yards, open spaces, relationship among buildings and other elements of the site;

e.

Retention of natural vegetation and topographic features; and

f.

Landscaping, buffers, screening, fences and other features to protect adjacent properties from potential adverse effects of the special use.

(f)

Modifications or amendments to approved special use permits.

(1)

Minor modifications. Minor modifications to approved plans or building details of an approved special use permit may be authorized by the zoning administrator when such modifications do not alter the boundaries of the property; conflict with specific requirements of this chapter or conditions of the approved special use permit; significantly decrease the width or depth of any yard, setback or buffer area; or significantly alter points of access to the property or the internal arrangement of site plan elements.

(2)

Amendment. Any change to an approved special use permit other than a minor modification as described in subsection (f)(1) of this section shall require an amendment subject to the same procedures and requirements as a new application.

(g)

Expiration of special use permits. An approved special use permit shall become null and void if no application for a building permit to construct the authorized improvements has been submitted within one year of the date of approval by the council. A special use permit for which no building permit is required shall become null and void if the use is not established within one year of the date of approval by the council. The council may specify a longer period in its approval of a special use permit.

(h)

Discontinuance of special use permits. A special use permit shall run with the land, unless the council imposes a more restrictive condition regarding succession of rights in conjunction with approval, provided that any use established pursuant to an approved special use permit shall not be reestablished if replaced by a different use or if discontinued for a continuous period of two years or longer.

(i)

Compliance with approved plans; revocation.

(1)

Violation of chapter. Failure to comply with approved plans or conditions of a special use permit shall constitute a violation of this chapter.

(2)

Revocation. Upon determination by the zoning administrator of any violation of a special use permit, such permit may be subject to revocation if the violation is not corrected within 90 days of written notice to the owner of the property by the zoning administrator. If the violation is not corrected within the specified time and the zoning administrator is not satisfied that appropriate means are being taken to correct the violation, the council shall have the authority to revoke the special use permit after notice and hearing as provided by Code of Virginia, § 15.2-2204.

(j)

Reconsideration. Whenever a special use permit application is denied, substantially the same application shall not be considered again by the council within one year from the date of denial.

(k)

Appeals. Appeals from any decision of the council regarding the special use permit may be taken to the circuit court by any aggrieved party in accordance with the provisions of Code of Virginia, § 15.2-2285.

(Code 2003, § 195-13; Ord. of 8-12-2013)

If in any district established under this chapter a use compatible with the district is not specifically permitted and an application is made by a property owner to the administrator for such use, the administrator may refer the application to the planning commission which shall make its recommendations to the council within 60 days. If the recommendation of the planning commission is approved by the council, this chapter shall be interpreted to list the use as a permitted use in that district. The addition of any compatible use to a zoning district shall be subject to section 36-60 if so deemed by the council.

(Code 2003, § 195-14; Ord. of 8-12-2013)

Pursuant to the authority granted by Code of Virginia, § 15.2-2308, the town board of zoning appeals is hereby created to serve the county and the town.

(Code 2003, § 195-15; Ord. of 8-12-2013)

The board shall consist of five members appointed by the circuit court of the county, with the appointments and terms of office as follows:

(1)

Two members from the town shall be initially appointed for two- and four-year terms respectively. Two members from the county shall be initially appointed for two- and four-year terms respectively. One at-large member shall be appointed for a five-year term.

(2)

At the request of either governing body, the circuit court may appoint not more than three alternates to the board. The qualifications, terms, and compensation of alternate members shall be the same as those of regular members.

(3)

Subsequent appointments shall be for terms of five years each. Members may be reappointed to succeed themselves.

(4)

Appointments to fill vacancies shall be only for the unexpired portion of the term.

(5)

Members shall hold no other public office in the locality except that one may be a member of the joint planning commission.

(6)

The board shall elect a chairperson and a vice-chairperson from its own membership who shall serve annual terms and may succeed themselves. The board shall also elect a secretary who may be either one of its own 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, and thereafter at the board's meeting immediately following January 1 of each year.

(7)

The secretary for the board shall notify the circuit 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.

(8)

Any board regular member or alternate may be removed for malfeasance, misfeasance, or nonfeasance in office, or for other just cause, by the court which appointed them, following a hearing held after at least 15 days' notice.

(9)

In the event of a vacancy or term expiration, the respective governing body shall provide formal recommendation of a replacement member or reappointment to the circuit court for consideration.

(10)

When a regular member knows that they will be absent from a meeting, they shall notify the chairperson of the board 24 hours, or as soon as possible if circumstances prohibit such notice, prior to the meeting of such fact. The chairperson shall select an alternate, if provided, to serve in the absent member's place, and the records of the board shall so note.

(11)

Members of the board may receive such compensation as may be authorized by the respective governing bodies.

(Code 2003, § 195-16; Ord. of 8-12-2013)

The board shall observe the following procedures:

(1)

The board may make, alter, and rescind rules of procedure provided that they are in accordance with the provisions of this chapter and consistent with other local ordinances and the general laws of the commonwealth for the conduct of its affairs.

(2)

The board shall keep a full public record of its proceedings and shall submit a report of its activities to the governing bodies at least once each calendar year.

(3)

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

(4)

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

(5)

The meetings of the board shall be held at the call of the chairperson or secretary, and at such other times as a quorum of the board may determine.

(6)

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

(7)

A quorum shall not be less than a majority of the members of the board.

(8)

A favorable vote of the majority of members of the board shall be necessary to reverse any order, decision, or determination of any administrative official or to decide in favor of the applicant on any matter upon which the board is required to pass.

(9)

Appeal procedure.

a.

Who may file appeal. An appeal to the board of zoning appeals pursuant to this chapter 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 by any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this article. Notwithstanding any provisions herein, any written notice of a zoning violation or a written order of the zoning administrator shall include a statement informing the recipient that said recipient may have a right to appeal the notice of a zoning violation or a written order of the zoning administrator within 30 days 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. A written notice of a zoning violation or a written order of the zoning administrator that includes such statement sent by registered or certified mail to, or posted at, the last known address of the property owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall be deemed sufficient notice to the property owner and shall satisfy the notice requirements of this section.

b.

Filing an appeal. An 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 forthwith transmit to the board all papers and other materials constituting the record upon which the action appealed from was taken. A copy of the notice of appeal shall also be transmitted to any other individual, officer, department or agency involved in the appeal.

c.

Stay of proceedings. 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 the opinion of the zoning administrator cause imminent peril to life or property, in which case proceedings shall not be stayed other 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.

(10)

Application for variance interpretation of zoning map of special exception.

a.

Who may file application. An application for a variance or interpretation of the official zoning map may be made by any property owner, tenant, government official, department, board or bureau, on forms provided for such purpose by the board and available from the zoning administrator.

b.

Application procedure. Applications shall be submitted to the zoning administrator in accordance with rules adopted by the board. The application and accompanying maps, plans or forms shall be provided for such purpose by the board and available from the zoning administrator.

c.

Reconsideration of application. Substantially the same application for a variance, interpretation of the official zoning map or special exception which has been decided by the board shall not be considered again by the board within one year 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.

(Code 2003, § 195-17; Ord. of 8-12-2013)

State Law reference— Appeal to zoning board of appeals, Code of Virginia, § 15.2-2311; procedure on appeal, Code of Virginia, § 15.2-2312.

(a)

The board 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 and enforcement of this chapter.

(2)

To authorize upon appeal in specific cases such variance 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 provisions will result in unnecessary hardship, provided that the spirit of this chapter shall be observed and substantial justice done as follows:

a.

When a property owner can show that the property of said owner 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 chapter is derived or, where by reason of exceptional topographic conditions or other extraordinary situation or conditions of such piece of property or of the use or development of property immediately adjacent thereto, the strict application of the terms of this chapter would effectively prohibit or unreasonably restrict the use 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 approaching confiscation, 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.

b.

No such variance shall be authorized by the board unless it finds that all of the following conditions apply:

1.

The strict application of this chapter would produce undue hardship;

2.

Such hardship is not shared generally by other properties in the same district and the same vicinity;

3.

Authorization of such variance will not be of substantial detriment to adjacent property and 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 council as an amendment to this chapter.

c.

No such variance shall be authorized except after notice and hearing as required by Code of Virginia, §§ 15.2-2204 and 15.2-2205. However, when giving any required notice to the owners, their agents, or the occupants of abutting 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 mail or certified mail.

d.

In authorizing a variance, the board 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 ensure that the conditions imposed are being and will continue to be in compliance.

(3)

To hear and decide appeals from the decisions of the zoning administrator as provided in this section.

(4)

To hear and decide applications for interpretation of the zoning map where there is any uncertainty as to the location of a district boundary, utilizing the rules for determining the boundaries as prescribed in section 36-4. 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 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 zoning 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 this chapter.

(b)

No provision of this chapter shall be construed as granting the board the power to rezone property, to grant conditional uses, or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by the governing bodies.

(Code 2003, § 195-18; Ord. of 8-12-2013)

State Law reference— Powers and duties of zoning board of appeals, Code of Virginia, § 15.2-2309.

Within the limits of funds appropriated by the governing bodies, 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 governing bodies.

(Code 2003, § 195-19; Ord. of 8-12-2013)

(a)

Any person jointly or severally aggrieved by any decision of the board or any taxpayer of officer, department, board or bureau of the council may present to the circuit court of the county a petition specifying the grounds on which aggrieved within 30 days after the filing of the decision in the office of the board.

(b)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten 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 appeals and on due cause shown, grant a restraining order.

(c)

The board shall not be required to return the original paper acted upon by it, but it shall be sufficient to return certified or sworn copies thereof of such portions thereof as may be called for by such 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.

(d)

If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, said court may take evidence or appoint commissioner of the court to take such evidence as the court may direct and report the same to the court with the finding of fact and conclusions of law, which shall constitute a part of the proceeding upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(e)

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 that the decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person who requested the issuance of the writ of certiorari to pay costs incurred in making a return of the record pursuant to the writ of certiorari.

(Code 2003, § 195-20; Ord. of 8-12-2013)

(a)

Authority to amend. Whenever the public necessity, convenience, general welfare, or good zoning practice require, and subject to the requirements set forth in Code of Virginia, §§ 15.2-2285 and 15.2-2286, the council may by ordinance amend, supplement, change or repeal the regulations, district boundaries, or classifications of property established by this chapter. All such ordinances shall be enacted in the same manner as all other ordinances.

(b)

Initiation of amendments. Amendments to the provisions of this chapter may be initiated by any of the following methods:

(1)

Resolution of the council. The council may, by its own resolution, initiate an ordinance to amend any of the provisions of this chapter, including the official zoning map. Every such resolution shall state the public purpose for the amendment.

(2)

Motion of the planning commission. The planning commission may, by adoption of a motion, initiate an amendment to any of the provisions of this chapter, including the official zoning map. Every such motion shall state the public purpose for the amendment. The motion shall be forwarded to the council, which shall cause an ordinance to be prepared for its consideration.

(3)

Petition of a property owner. A petition to change the zoning classification of property by amendment to the official zoning map may be filed by the owner of such property or, with the written consent of the owner, the contract purchaser of the property or an agent of the owner.

(c)

Rezoning application.

(1)

A petition on behalf of a property owner to change the zoning classification of property shall be in the form of an application for rezoning addressed to the council and filed with the zoning administrator. The application shall be accompanied by the required fee and a certified plat of the property proposed to be rezoned. The application shall include indication of the current and proposed zoning classification of the property and a statement of the applicant's reasons for requesting rezoning.

(2)

The zoning administrator shall review the application for compliance with the requirements of this section. When the zoning administrator is satisfied that submission requirements are met, the application shall be forwarded to the council, with a copy to the planning commission. The council shall cause an ordinance to be prepared for its consideration of the rezoning application.

(d)

Action by the planning commission.

(1)

Review and recommendation for amendment by council. No amendment to this chapter shall be acted upon by the council unless it has been referred to the planning commission for its review and recommendation in accordance with this section.

a.

Public notice and hearing. Before taking action on any amendment, the planning commission shall give public notice and hold at least one public hearing as required by Code of Virginia, § 15.2-2204. A joint public hearing may be held with the council. The commission may continue any public hearing or, after closing a public hearing, the commission may continue the matter for further consideration at a subsequent meeting, but shall not reopen the public hearing without giving additional notice.

b.

Report of zoning administrator. The zoning administrator shall submit a written report and recommendation to the commission prior to its action.

c.

Recommendation of commission. The commission may recommend that the council adopt or reject the amendment or may recommend changes in the amendment. In making its recommendation, the commission shall consider at least the matters listed in this chapter.

d.

Form of action by commission. Action by the commission shall be in the form of a motion, giving the reasons for the action and the vote of each member. All actions shall be recorded in the commission's records. Each recommendation to the council shall include a statement of the relationship of the proposed rezoning to the comprehensive plan.

(2)

Written report to council for approval or disapproval of amendment. In any case where the commission is unable to adopt a motion to recommend approval or disapproval, it shall forward a written report to the council stating such fact and summarizing its deliberations on the matter.

(e)

Action by council. The council shall take final action on all proposed amendments in accordance with the following provisions:

(1)

Public notice and hearing. Before taking action on any ordinance to amend this chapter, the council shall give public notice as required by Code of Virginia, § 15.2-2204, and shall hold at least one public hearing on the proposed amendment. A joint public hearing may be held with the planning commission. In the case of a proposed amendment to the zoning map, the public notice shall state the general usage and density range of the proposed amendment and the general usage and density range, if any, set forth in the applicable part of the comprehensive plan for the property involved.

(2)

Final action. After receiving a report from the planning commission and after giving notice and holding a public hearing, the council may adopt or reject the proposed amendment, or may take appropriate changes to the amendment, provided that no land be rezoned than was described in the public notice without referral to the planning commission and an additional public hearing after public notice as required by Code of Virginia, § 15.2-2204.

(3)

Continuance or withdrawal. Final action on any proposed amendment may be continued by the council for good cause, provided that all resolutions, motions or petitions for amendments shall be acted upon by the council within one year of the date of the resolution, motion or petition. This provision shall not apply if the petitioner requests or consents in writing to action beyond such period or if a petition is withdrawn by providing written notice to the council.

(f)

Reconsideration by rezoning application. Whenever a rezoning application is denied, substantially the same application shall not be considered again by the council within one year from the date of the denial, except:

(1)

When a new application, although involving all or a portion of the same property, is for a different zoning classification than the original application; or

(2)

When a new application is submitted after a finding by the council that conditions or circumstances that provided the basis for denial of the original application have changed to an extent sufficient to justify reconsideration.

(Code 2003, § 195-21; Ord. of 8-12-2013)

(a)

Purpose of conditional zoning.

(1)

Pursuant to applicable provisions of Code of Virginia, § 15.2-2297 et seq., the purpose of conditional zoning is to recognize that frequently, where competing and incompatible uses conflict, traditional zoning methods and procedures are inadequate, and that in such cases more flexible and adaptable zoning methods are needed to permit differing land uses, and at the same time to recognize the effects of change.

(2)

It is, therefore, the intent of this division to provide a more flexible and adaptable zoning method to cope with such situations, whereby a change in the zoning classification of property may be allowed subject to certain conditions proffered by the petitioner for the protection of the community that are not generally applicable to land similarly zoned. It is the intent of the council that the provisions of this division shall not be used for the purpose of discrimination in housing.

(b)

Procedure for conditional zoning.

(1)

Conditions may be proffered. In conjunction with an application for rezoning of property and as a part of a proposed amendment to the zoning map as described in section 36-34(b)(5), the owner of such property may voluntarily proffer in writing reasonable conditions in addition to the regulations specified for the zoning district by this chapter, provided such conditions meet the criteria in this division.

(2)

Submission of conditions. The owner may submit such conditions at the time of submission of the application for rezoning or at any other time before the planning commission, and the council shall not be obligated to accept any or all proffered conditions.

(3)

Modifications to conditions. In the event additions, deletions or other modifications to conditions are desired by the owner of the property that is the subject of the rezoning request, they shall be made in writing to the planning commission before the commission makes its recommendation to the council. The council may consider additional conditions, deletions or modifications to conditions after the planning commission makes its recommendation, provided that such are voluntarily proffered in writing prior to the public hearing at which the council is to consider the application for rezoning. In any case where modifications to conditions are proposed after the planning commission makes its recommendation, the council may refer the rezoning application back to the commission for further review and action.

(c)

Permitted conditions.

(1)

Criteria for proffered conditions. All conditions proffered shall meet the following criteria:

a.

The rezoning itself must give rise for the need for the conditions.

b.

The conditions shall have a reasonable relation to the rezoning.

c.

The conditions shall not include a cash contribution to the town.

d.

The conditions shall not include mandatory dedication of real or personal property for open space, parks, schools, fire departments or other public facilities, not otherwise provided for in Code of Virginia, § 15.2-2241.

e.

The conditions shall not include payment for or construction of off-site improvements, except those provided for in Code of Virginia, § 15.2-2241.

f.

The conditions shall be related to the physical development or physical operation of the property.

g.

The conditions shall be in conformity with the town's comprehensive plan.

h.

The conditions shall not be less restrictive than the provisions of this chapter and shall not require or permit a standard that is less than required by any law.

i.

The conditions shall be drafted in such manner as to be clearly understandable and enforceable.

(2)

Subsequent amendment to the zoning map. Once proffered and accepted as part of an amendment to the zoning map, the conditions shall continue in effect until a subsequent amendment changes the zoning on the property covered by the conditions, provided that the conditions shall continue in effect if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning ordinance.

(3)

Future amendments in case of certain proffers. In the event proffered conditions include a requirement for the dedication of real property of substantial value or construction of substantial public improvements, the need for which is not generated solely by the rezoning itself, then no amendments to the zoning map for the property subject to conditions, nor the conditions themselves, nor any amendments to the text of the zoning ordinance with respect to the zoning district applicable thereto initiated by the council, which eliminate, or materially restrict, reduce, or modify the uses, the floor area ratio, or the density of use permitted in the zoning district applicable to such property, shall be effective with respect to such property unless there has been mistake, fraud, or a change in circumstances substantially affected the public health, safety, or welfare.

(d)

Enforcement and guarantees.

(1)

Authority of zoning administrator. The zoning administrator shall be vested with all necessary authority on behalf of the council to administer and enforce conditions attached to a rezoning or amendment to the zoning map, including:

a.

The ordering in writing of the remedy of any noncompliance with conditions;

b.

The bringing of legal action to ensure compliance with conditions, including injunction, abatement or other appropriate action or proceeding; and

c.

Requiring a guarantee satisfactory to the council in an amount sufficient for and conditioned upon the construction of any physical improvements required by the conditions, or a contract for the construction of such improvements and the contractor's guarantee, in like amount and so conditioned, which guarantee shall be reduced or released by the council, or its agent, upon the submission of satisfactory evidence that condition of such improvements has been completed in whole or in part.

(2)

Denial of permits. Failure to meet all conditions attached to an amendment to the zoning map shall constitute cause to deny issuance of any required site plan, zoning permit, certificate of zoning compliance, or other use, occupancy, or building permit, as may be appropriate.

(e)

Records. The zoning map shall show by an appropriate symbol on the map of existence of conditions attached to the zoning. The zoning administrator shall keep in the office of the zoning administrator and make available for public inspection a conditional zoning index. The index shall provide ready access to each ordinance creating conditions, in addition to the regulations provided for in a particular zoning district.

(f)

Review of zoning administrator's decision.

(1)

Any rezoning applicant or any other person who is aggrieved by a decision of the zoning administrator made pursuant to the provisions of this article may petition the council for review of such decision by filing a petition with the zoning administrator and with the clerk of the council within 30 days of the decision. Such petition shall specify the grounds upon which the petitioner is aggrieved.

(2)

In deciding any such case, the council shall have the same authority as vested in the zoning administrator, but shall not modify or delete any condition attached to a zoning map amendment, except by formal amendment pursuant to the provisions of this article.

(g)

Amendment and variations of conditions. Amendments and variations of conditions attached to a zoning map amendment shall be made only after public notice and hearing in the same manner as an original zoning map amendment and in accordance with the provisions of this article and applicable provisions of Code of Virginia, title 15.2.

(Code 2003, § 195-22; Ord. of 8-12-2013)