The Board of Zoning Appeals is hereby created. The board shall consist of five (5) members and three (3) alternates, all of whom shall be residents of the Town of Big Stone Gap and one (1) member shall be a member of the Town Planning Commission. Members and alternates are to be appointed by the members of the Circuit Court of Wise County and shall serve without compensation, and shall hold no other public office in the Town except for the member of the planning commission. A member or alternate whose term expires shall continue to serve until his successor is appointed and qualifies. All members and alternates shall be appointed for terms of five (5) years each and the term of each of the five (5) members shall be made for such terms that the term of one (1) member shall expire each year. Vacancies shall be filled by appointment for the unexpired term. The Board shall adopt rules for the conduct of its business, such rules to be made available to the public. For the conduct of any hearing a quorum shall be not less than three (3) members or alternates and an affirmative vote of three (3) members or alternates of the board shall be required to overrule any decision, ruling or determination of the official charged with enforcement of this Ordinance, or to approve any special exception or variance. The Board shall keep a full public record of its proceedings and shall submit a report of its activities to the Town Council at least once each year.

A member appointed from the Planning Commission shall be appointed in the same manner as the other members of the Board. In the event that this member's term on the Commission shall expire prior to the expiration of the term of the Board of Zoning Appeals and in the event he is not reappointed on the Commission, his position on the Board of Zoning Appeals shall become vacant conterminously with the expiration of this appointment to the Commission.

(Ord. No. 28-1998, § 1, 10-13-98; Ord. No. 10-2009, 5-12-09)

Applications for special exceptions may be made by any property owner, tenant, government official, department, board or bureau. Such application shall be made to the Administrator in accordance with rules adopted by the Board. The application and accompanying maps, plans or other information shall be transmitted promptly to the Secretary of the Board who shall place the matter on the docket, advertise a public hearing thereon as prescribed below in this section, and give written notice of such hearing to the parties in interest. The Administrator shall also transmit a copy of the application to the Planning Commission which may send a recommendation to the Board or appear as a party at the hearing.

An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the Town affected by any decision of the Administrator. Such appeal shall be taken within thirty (30) days after the decision appealed from by filing with the Administrator, and with the Board, a notice of appeal specifying the grounds thereof. The Administrator shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

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

The Board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties and decide the same within sixty (60) days. Public notice of hearing shall consist of a publication once a week for two (2) successive weeks in a newspaper published or having general circulation in the town, specifying the time, place and nature of hearing, which hearing is to be held not less than five (5) days nor more than twenty-one (21) days after final publication. In exercising its powers the Board may reverse or affirm, wholly or partly, or may modify, the order, requirement, decision or determination appealed from.

The Board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the Board and shall be public records. The Chairman of the Board, or in his absence the Acting Chairman, may administer oaths and compel the attendance of witnesses.

The Board of Zoning Appeals shall have the following powers:

1.

To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the administration or enforcement of this Ordinance.

2.

To hear and decide on applications for special exceptions upon which the Board is specifically authorized to pass under this Ordinance.

3.

To authorize upon appeal in specific cases such variance from the specific terms of this Ordinance as will not be contrary to the public interest, when, owning [owing] to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship; provided that the spirit of the Ordinance shall be observed, public safety and welfare secured, and substantial justice done as hereinafter provided.

4.

To hear and decide applications for interpretation of the Zoning District Map where there is any uncertainty as to the location of a district boundary.

In order to provide for adjustments in the relative locations of uses and buildings of the same or different classifications, to promote the usefulness of these regulations, as instruments for fact finding, interpretation, application and adjustment, and to supply the necessary elasticity to their efficient operation, special use exceptions and, limited as to location and especially in locations described in this article, special yard and height exceptions are permitted by the terms of these regulations. The following buildings and uses are permitted as special exceptions if the Board finds that, in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property permitted [in] this Ordinance.

4.1.

Special Use Exceptions.

1.

Temporary and conditional permits for a period of six (6) months or less for the various uses as they are so listed in the district regulations.

2.

Other special use exceptions as they are listed in the district regulations.

3.

Exceptions to parking and loading requirements as follows:

(a)

Off-street parking areas, adjacent to or at a reasonable distance from the premises on which parking areas are required by the parking regulations of Article 6 where practical difficulties, including the acquisition of property, or undue hardships are encountered in locating such parking areas on the premises and where the purpose of these regulations to relieve congestion in the streets would best be served by permitting such parking off the premises.

(b)

Waiver or reduction of the parking and loading requirements in any district whenever the character or use of the building is such as to make unnecessary the full provision of parking or loading facilities.

(c)

Waiver or reduction of loading space requirements where adequate community loading facilities are provided.

(d)

Waiver or reduction of loading space requirements for uses which contain less than ten thousand (10,000) square feet of floor area where construction of existing buildings, problems of access, or size or slope of lot make impractical the provision of required loading space.

4.

In any Industrial District, those potentially hazardous uses upon which the Board is required to pass under Article 4.

5.

A determination, in cases of uncertainty, of the district classification of any use not specifically named in these regulations; provided, however such use shall be in keeping with uses specifically permitted in the district in which such use is to be classified.

4.2.

Special Yard Exceptions.

1.

An exception in the yard regulations on a lot where, on the adjacent lot, there is a front, side, or rear yard that does not conform with such yard regulations in a way similar to the exception applied for, but not to encroach upon an existing or proposed right-of-way.

2.

An exception in the depth of a rear yard on a lot in a block where there are nonconforming rear yards.

3.

An exception where there are irregularities in depths of existing front yards on a street frontage on the side of a street between two (2) intersecting streets, so that any one (1) of the existing depths shall, for a building hereafter constructed or extended be the required minimum front yard depth.

4.

A fence more than three and one-half (3½) feet high in a required front yard in an Industrial District where such fence is necessary for the protection of the property of a permitted use.

4.3.

Special Height Exceptions.

1.

An exception to the height regulations in an Industrial District.

Subject to the provisions of Section 3 of this Article, the Board shall have the power to grant the following variances:

1.

A variation in the yard requirements in any district so as to relieve practical difficulties or particular hardships in cases, when and where, by reason of exceptional narrowness, shallowness, size or shape of a specific piece of property, at the time of the enactment of such regulation or restriction, or by reason of exceptional topographical conditions or other extraordinary situation or condition of such piece of property, or of the use or development of property immediately adjacent thereto, the strict application of each regulation or restriction, would result in peculiar and exceptional practical difficulties to, or exceptional hardship upon the owner of such property. Such grant or [of] variance shall comply, as nearly as possible, in every respect with the spirit, intent, and purpose of the zoning plan; it being the purpose of this provision to authorize the granting of variation only for reasons for clearly demonstrable and exceptional hardship as distinguished from variations sought by applicants for purposes or reasons of convenience, profit, or caprice.

No variance shall be authorized by the Board unless it finds:

1.

That the strict application of the Ordinance would produce undue hardship.

2.

That such hardship is not shared generally by other properties in the same zoning district and the same vicinity.

3.

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

No variance shall be authorized unless the Board finds that the condition or situation of the property concerned or the intended use of the property 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 the Ordinance.

Where, in these regulations, special exceptions are permitted, provided they are approved by the Board where the Board is authorized to decide appeals or approve certain uses, and where the Board is authorized to approve variances, such approval, decision, or authorization shall be limited by such conditions as the case may require, including the imposition of any of the following specifications:

1.

No outside signs or advertising structures except professional or directional signs or limitation of signs as to size, type, color, location or illumination.

2.

Amount, direction, and location of outdoor lighting.

3.

Amount and location of off-street parking and loading space.

4.

Cleaning or painting.

5.

Gable roof or other type, exits or entrances, doors, and windows, no store fronts, no structural changes.

6.

Construction materials.

7.

Connected or disconnected with other buildings.

8.

Paving, shrubbery, landscaping, or ornamental or screening fences, walls, or hedges.

9.

Time of day or night for operating.

10.

Control or elimination of smoke, dust, gas, noise, or vibration caused by operations.

11.

Requirements for termination of a use based on lapse of time or such other conditions as the Board may specify.

12.

Such other conditions as are necessary.

After the Board of Zoning Appeals has approved a special exception or granted a variance, the special exception or variance so approved or granted shall lapse after the expiration of one (1) year if no substantial construction or change of use has taken place in accordance with the plans for which such special exception or variance was granted, or if the Board does not specify some longer period than one (1) year for good cause shown, and the provisions of these regulations shall thereafter govern.

The procedure for amendment of a special exception or variance already approved, or a request for a change of conditions attached to an approval, shall be the same as for a new application except that where the Administrator determines the change to be minor relative to the original approval he may transmit the same to the Board with the original record without requiring that a new application be filed.

Appeals to courts from a decision of the Board may be filed in the manner prescribed by law.