A board of zoning appeals is hereby established with the powers, duties and procedures to hear appeals as provided in the Code of Virginia, § 15.2-2308.

(Ord. of 6-26-2000, § 20-400)

There shall be a board of zoning appeals which shall consist of five members, each to be a resident of the town and each to be appointed by the circuit court of the county for terms of five years except the original appointments shall be made for such terms that the term of one member shall expire each year. Members of the board shall hold no other public office in the town, except one member may be a member of the town planning commission.

(Ord. of 6-26-2000, § 20-402(a))

Vacancies shall be filled by such court for the unexpired portion of the term. The secretary of the board shall notify the court promptly if any vacancy occurs.

(Ord. of 6-26-2000, § 20-402(b))

A member or alternate may be removed by such court for malfeasance, misfeasance or nonfeasance in office, or for other just cause, upon hearing held by such court, after 15 days' written notice of such hearing.

(Ord. of 6-26-2000, § 20-402(c))

The secretary of the board shall notify the court at least 30 days in advance of the expiration of any term of office. A member whose term expires shall continue to serve until his successor is appointed and qualified. Members may be reappointed to succeed themselves.

(Ord. of 6-26-2000, § 20-402(d))

At the request of the town council, the 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. A regular member when he knows he will be absent from a meeting shall notify the chair 24 hours prior to the meeting of such fact. The chair shall select an alternate to serve in the absent member's place and the records of the board shall so note.

(Ord. of 6-26-2000, § 20-402(e))

The board shall elect one of its members as chair and one of its members as vice-chair. The officers shall serve annual terms and may succeed themselves. The chair shall preside at all meetings of the board and in the chair's absence, the vice-chair shall preside.

(Ord. of 6-26-2000, § 20-404(a))

The town zoning administrator shall act as secretary of the board.

(Ord. of 6-26-2000, § 20-404(b))

The town manager shall appoint a recording secretary whose duty it shall be to keep the minutes and other records of the actions and deliberations of the board.

(Ord. of 6-26-2000, § 20-404(c))

The board may adopt, make, alter and rescind rules and forms for its procedures, consistent with ordinances of the town and general laws of the commonwealth as it may deem necessary in order to carry into effect the provisions of this chapter.

(Ord. of 6-26-2000, § 20-406(a))

Meetings of the board shall be held at the call of the chair and at such other times as the board may determine. Such chair, or in the chair's absence the vice-chair, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public.

(Ord. of 6-26-2000, § 20-406(b))

The recording secretary shall keep minutes of the board's proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of the board's examinations and other official actions, all of which shall be immediately filed in the office of the zoning administrator and shall be of public record.

(Ord. of 6-26-2000, § 20-406(c))

A quorum shall consist of three board members; one of which shall be either the chair or vice-chair. A majority vote, but not less than three votes, shall be necessary to reverse any order, requirement, decision or determination of an administrative official or to decide in favor of an applicant on any matter on which the board is required to pass.

(Ord. of 6-26-2000, § 20-406(d))

The board shall submit a report of its activities to the town council at least once each year.

(Ord. of 6-26-2000, § 20-406(e))

The board of zoning appeals 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 in the administration or enforcement of this chapter.

(2)

To authorize upon appeal or original application 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 of this chapter will result in unnecessary hardship; provided that the spirit of this chapter shall be observed, public safety and welfare secured, and substantial justice done, as follows: When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance from which this chapter is derived, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of the piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the strict application of the terms of this chapter would effectively prohibit or unreasonably restrict the utilization of the property or where the board is satisfied, upon 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.

(3)

No such variance shall be authorized by the board unless it finds:

a.

That the strict application of this chapter would produce undue hardship.

b.

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

c.

That the authorization of the 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.

(4)

No variance shall be authorized except after notice of hearing as required by section 74-6. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across from 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.

(5)

No variance shall be authorized unless the board finds that the condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this chapter.

(6)

In authorizing a variance, the board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.

(7)

To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by section 74-6. 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.

(8)

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. After notice to the owners of the property affected by the question, and after public hearing with notice as required by section 74-6, the board may interpret the map in such way as to carry out the intent and purpose of this chapter for the particular section or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by this chapter.

(9)

No provisions of this section shall be construed as granting the board the power to rezone property. The board shall not have the power to change substantially the locations of district boundaries as established by this chapter.

(10)

To hear and decide application for special exceptions as may be authorized in this chapter. The board may impose such conditions relating to the use for which the permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. No special exception may be granted except after notice and hearing as provided by section 74-6. 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.

(11)

To revoke a special exception if the board determines that there has not been compliance with the terms or conditions of the permit. No special exception may be revoked except after notice and hearing as provided by section 74-6. 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.

(12)

To determine, 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.

(Ord. of 6-26-2000, § 20-408)

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

(a)

An appeal to the board may be taken by any person aggrieved by any officer, department, board or bureau of the town affected by any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this chapter or any ordinance adopted pursuant thereto. Notwithstanding any charter provision to the contrary, any written notice of a zoning violation or a written order of the zoning administrator dated on or after July 1, 1993, shall include a statement informing the recipient that he may have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within 30 days. The appeal period shall not commence until the statement is given. The 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 the papers constituting the record upon which the action appealed from was taken.

(b)

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

(c)

In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by the zoning administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer through fraud. The 60-day limitation period shall not apply in any case where, with the concurrence of the town attorney, modification is required to correct clerical or other nondiscretionary errors.

(d)

Any matter, once heard and determined by the board shall not be appealed again to the board for a period of one year.

(Ord. of 6-26-2000, § 20-410)

(a)

Application for variances and special exceptions. Applications for special exceptions and variances may be made by any property owner, tenant, government official, department, board or bureau. Applications shall be made to the zoning administrator in accordance with the rules adopted by the board. The application and accompanying maps, plans or other information shall be transmitted promptly to the secretary of the board who shall place the matter on the docket to be acted upon by the board.

(b)

Notice and advertisement. No special exceptions or variances shall be authorized except after notice and hearing as required by section 74-6.

(c)

Filling fees.

(1)

A person appealing to the board of zoning appeals, necessitating the publication of notices in the newspaper shall be required to pay, at the time the application is submitted, a fee determined by the secretary of the board.

(2)

A person applying for variances under the provisions of this chapter or applying for an amendment or a variance already approved shall be required to pay the publication of notices in the newspaper, at the time the application is submitted, a fee determined by the secretary of the board.

(3)

The payment of such money in advance to the secretary of the board as specified shall be deemed a condition precedent to the consideration of such appeal, variance request, or requested amendment to a variance already approved.

(d)

Hearing and decision. The board shall, within 30 days, fix a time and date for the hearing of the requested variance or appeal, give public notice thereof as required by law, as well as due notice to the parties in interest as provided by state law and decide the variance or appeal within 30 days after the hearing date. The board shall make its decision within 90 days of the filing of the application or appeal. Upon the hearing, any party may appear in person, or by agent, or by attorney. In exercising its powers, the board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify, any order, requirement, decision or determination as ought to be made and to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of a majority of the members of the board shall be necessary to reverse any order, requirement, decision or determination of the administrative officer to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, or to effect any variance from this chapter.

(Ord. of 6-26-2000, § 20-412)

Where the board is authorized to decide appeals, 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.

(2)

Limitation of signs as to size, type, color, location or illumination.

(3)

Amount, direction, and location of outdoor lighting.

(4)

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

(5)

Structures connected or disconnected with other buildings.

(6)

Exits or entrances, doors, and windows.

(7)

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

(8)

Time of day or night for operating.

(9)

No store fronts.

(10)

Control or elimination of smoke, dust, gas, noise, 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 regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest.

(Ord. of 6-26-2000, § 20-414)

The board may require satisfactory evidence and guarantee or bond that the conditions stipulated will be and will continue to be complied with. Any variance may be authorized and issued for either a limited or an indefinite period of time and shall be revocable by the board at any time for failure to adhere to the application conditions. Before revoking any such variance, however, the board shall afford the applicant an opportunity to be heard, giving him at least five days written notice of the time and place of such hearing, served as prescribed by law.

(Ord. of 6-26-2000, § 20-416)

After the board has approved a variance, the variance so approved or granted shall lapse after the expiration of one year if no substantial construction or change of use has taken place in accordance with the plans for which such variance was granted, or if the board does not specify some longer period than one year for good cause shown, the provisions of this chapter shall thereafter govern.

(Ord. of 6-26-2000, § 20-418)

Where a building permit has been issued and the construction of the building for which the permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of this chapter, by suit filed within 15 days after the start of construction by a person who had no actual notice of the issuance of the permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the administrative officer to the board of zoning appeals.

(Ord. of 6-26-2000, § 20-420)

(a)

Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the town, 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 of zoning appeals.

(b)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of zoning appeals 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 board and on due cause shown, grant a restraining order.

(c)

The board of zoning 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.

(d)

If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take evidence as it may direct and report the evidence to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings 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 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 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 board may request that the court hear the matter on the question of whether the appeal was frivolous.

(Ord. of 6-26-2000, § 20-422)