(a)

Zoning administrator. This chapter shall be administered and enforced by an officer to be known as the zoning administrator, who shall be appointed by the board of supervisors. The zoning administrator shall have all necessary authority, on behalf of the board, to administer and enforce this chapter, including the ordering, in writing, of the remedying of any condition found in violation of this chapter, and the bringing of legal action to ensure compliance with this chapter, including injunction, abatement or other appropriate action or proceeding. The zoning administrator shall be guided in all of his actions pursuant to this chapter by the purposes, intent and spirit of this chapter and the standards set forth in article I of this chapter. The zoning administrator shall be assisted in the enforcement of this chapter by the health officer, sheriff and all other officials of the county pursuant to their respective fields. Specifically, the duties and powers shall include:

(1)

To receive and/or review:

a.

Applications for variances.

b.

Notices of appeal to the BZA.

c.

Applications for zoning permits.

d.

Applications for commission permits.

(2)

To issue zoning permits where the requirements of this chapter have been met.

(3)

To issue interpretations of this chapter upon proper application. Such interpretations shall be binding as to the applicant and as to the specific facts presented in the application for interpretation after the completion of the thirty (30) day appeal period. In administering this chapter and rendering determinations as to the uses permitted or allowed by special exception permit in the various zoning districts, the zoning administrator shall have the power and authority to render decisions as to whether a specific proposed use, although not listed as permitted or allowed by special exception permit, is so substantially similar in substance and effect to a permitted use or a use allowed by special exception permit, that it should be allowed as if expressly permitted or allowed by special exception permit. Such interpretations shall include notification of appeal procedures and timelines.

(4)

To conduct inspections of buildings, structures and uses of land to determine compliance with the provisions of this chapter.

(5)

To maintain accurate records of proffered conditions as required by subsection 25-581(i)(4) of this chapter.

(6)

To enforce the provisions of this chapter, the decisions of the BZA and conditions and proffers subject to which approvals of the BZA, planning commission and board of supervisors were made.

(7)

To perform such other duties and functions as may be required by this chapter and the board of supervisors.

(8)

To maintain and make available for public inspection and copying the official zoning map, the zoning ordinance, and the minimum submission requirements adopted by board of supervisors resolution.

(9)

To maintain a compilation of the interpretations and opinions of the zoning administrator for public review.

The zoning administrator shall have the authority to make conclusions of law and findings of fact, with concurrence of the attorney for the governing body, in connection with the administration, application and enforcement of the chapter in specific cases, including determinations of rights accruing under section 15.2-2307 of the Code of Virginia.

In case of any dispute over the meaning of a word, phrase or sentence, whether defined in this chapter or not, the zoning administrator is hereby authorized to make a definitive determination thereof, being guided in such determination by the purposes and intent of this chapter, as set forth in section 25-2; provided, that an appeal may be taken from any such determination as provided in section 25-552 of this chapter.

(b)

Fees. Fees, as allowed by the Code of Virginia, section 15.2-2286 (6), for administrative review and processing of zoning permits, certificates of occupancy, site plans, rezoning requests, special exceptions, amendments, public hearings, advertising, variances and nonconforming uses shall be published under a separate fee schedule and reviewed annually by the zoning administrator prior to approval by the board of supervisors.

Application fees are hereby waived for the following:

(1)

Applications for amendment, special exception permit, or commission permit sought by the following governmental agencies:

a.

Botetourt County School Board.

b.

Fire and rescue companies serving Botetourt County.

c.

Any agency, board or division acting in the name of the Board of Supervisors of Botetourt County.

(c)

Submission requirements. The board of supervisors shall adopt by resolution regulations enumerating those materials required to be included with each application provided for in this chapter, which materials shall constitute the minimum submission requirements for such application and be consistent with the requirements of this chapter. Such submission requirements shall include a letter signed by the applicant and by the owner of the property granting the right of entry upon the property to the zoning administrator, law enforcement agents, and county inspectors for the purpose of inspecting, and bringing law enforcement to the property, during the term of any permit which may be issued. Such submission requirements shall also include, in the case of any application for a zoning map amendment, zoning ordinance modification, zoning concept development plan amendment, special exception permit, variance, site plan or zoning permit, the provision of satisfactory evidence from the treasurer's office that any real estate taxes due and owed to the county which have been properly assessed against the property have been paid. Revisions to the list of those materials required necessitated by an amendment to this chapter shall be attached to such amendment for concurrent consideration and adoption by resolution of the board of supervisors. If the application is a reclassification to a non-planned unit development district, a rezoning plat shall be required.

(d)

Inactive applications. Any zoning map amendment application, zoning modification application, or concept development plan amendment application officially accepted by the county for processing but which has had processing suspended either by request of the applicant or by having no contact or activity occur in regards to the application by the applicant for a period of twelve (12) months or any special exception permit application officially accepted by the county for processing but which has had such processing suspended either by request of the applicant or by having no contact or activity occur in regards to the application by the applicant for a period of six (6) months shall be deemed inactive. An application may remain inactive for up to three (3) years at the end of which period it will be processed to a final decision. If an applicant wishes to reactivate their application prior to the end of this three (3) year period, the applicant must notify the county in writing of intent to proceed with the application, grant the county an appropriate timeline extension and pay a reactivation fee as established by the board of supervisors.

(Res. of 1-1-02, § 5-101)

(a)

Zoning administrator. Whenever a violation of this chapter occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint shall state fully the cause and the basis thereof and shall be filed with the zoning administrator. The administrator shall properly record such complaint, immediately investigate and take action thereon as provided by this chapter.

Upon his becoming aware of any violation of any provision of this chapter, the zoning administrator shall serve notice of such violation on the person committing or permitting such violation. If such violation has not ceased within such reasonable time as the zoning administrator has specified in such notice, he shall institute such action as may be necessary to terminate the violation.

The zoning administrator shall order the discontinuance of illegal use of land, buildings or structures, removal of illegal building or structures or of illegal additions, alterations or structural changes and discontinuance of any illegal work being done, or shall take any other action authorized by this chapter to ensure compliance with, or to prevent violation of, its provisions.

Notice of a zoning violation or a written order of the zoning administrator shall include a statement informing the recipient that he may have a right to appeal the notice of a zoning violation or a written order within thirty (30) days, and that the decision shall be final and unappealable if not appealed within thirty (30) days.

The zoning administrator may initiate injunction, mandamus, abatement, or any other appropriate action, to prevent, enjoin, abate or remove such erection or use in violation of any provision of this chapter.

(b)

Violations. The following are violations of this chapter and are declared to be unlawful:

(1)

Uses. Any use of a structure, improvement or land, established, conducted, operated or maintained in violation of any provision of this chapter, approved, site plan, building and zoning permit, or condition accepted or imposed in conjunction with any county approval under this chapter, or without any required permit, certificate or other required approval under this chapter.

(2)

Structures without building permits. Any structure for which a building permit application is required that is started, established, constructed, reconstructed, enlarged or altered without a building permit.

(3)

Use of structure or site without certificate of occupancy. Any use of a structure or site for which a certificate of occupancy is required that is conducted, operated or maintained without a certificate of occupancy.

(4)

Requirements and standards. The failure to comply with any other requirement or standard of this chapter.

(c)

Penalties. The remedies provided for in this section are cumulative and not exclusive and shall be in addition to any other remedies provided by law.

(1)

Civil penalties. Any person, whether the owner, lessee, principal, agent, employee or otherwise, who violates any provision of this chapter as provided in section 25-522(b), or permits either by granting permission to another to engage in the violating act or by not prohibiting the violating act after being informed by the zoning administrator that the act violates this chapter as provided in section 25-522(a), shall be subject to the following:

a.

Procedure. Proceedings seeking civil penalties for all violations of this chapter under this section shall commence either by filing a civil summons in the general district court or by the zoning administrator or his deputy issuing a ticket.

b.

Minimum elements of a civil summons or ticket. A civil summons or ticket shall contain, at a minimum, the following information: (i) the name and address of the person charged; (ii) the nature of the violation and the section of this chapter allegedly violated; (iii) the location and date that the violation occurred or was observed; (iv) the amount of the civil penalty being imposed for the violation; (v) the manner, location and time in which the civil penalty may be paid to the county; (vi) the right of the recipient of the summons to elect to stand trial and that a signature to an admission of liability will have the same force and effect as a judgment of a court; and either the date scheduled for trial, or the date for scheduling of such trial by the court.

c.

Amount of civil penalty. Any violation of this chapter shall be subject to a civil penalty of two hundred dollars ($200.00) for the initial summons, and a civil penalty of five hundred dollars ($500.00) for each additional summons arising from the same set of operative facts.

d.

Maximum aggregate civil penalty. The total civil penalties from a series of violations arising from the same set of operative facts shall not exceed five thousand dollars ($5,000.00). After the civil penalties reach the five thousand dollar ($5,000.00) limit, the violation may be prosecuted as a criminal misdemeanor under section 25-522(c)(2).

e.

Each day a separate offense; single offense in ten (10) day period; stay. Each day during which a violation is found to exist shall be a separate offense. However, the same scheduled violation arising from the same operative set of facts may be charged not more than once in a ten (10) day period.

f.

Option to prepay civil penalty and waive trial. Any person summoned or ticketed for a violation of this chapter may elect to pay the civil penalty by making an appearance in person or in writing by mail to the department of finance prior to the date fixed for trial in court. A person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged. A signature to an admission of liability shall have the same force and effect as a judgment of court. However, an admission shall not be deemed a criminal conviction for any purpose. If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided by law. A finding of liability shall not be deemed a criminal conviction for any purpose.

g.

Civil penalties are in lieu of criminal penalties. A violation enforced under section 25-522(c)(1), shall be in lieu of any criminal penalty except as provided in section 25-522(c)(1)d. and section 25-522(c)(2) and, except for any violation resulting in injury to any person, such a designation shall preclude the prosecution of the particular violation as a criminal misdemeanor, but shall not preclude any other remedy available under this chapter.

h.

Violations excluded.Section 25-522(c)(1), shall not be construed to allow the imposition of civil penalties: (i) for activities related to land development where, for the purposes of this section, the term "land development" means a human-made change to, or construction on, the land surface including, but not limited to, land disturbing activity or the construction of buildings, structures or improvements under an approved site plan or subdivision plat, but does not mean the land development project's compliance with this chapter; or (ii) for the violation of any provision of this chapter relating to the posting of signs on public property or public rights-of-way.

i.

Assessment of civil penalties during appeal period. No civil penalties shall be assessed by a court having jurisdiction during the pendency of the thirty (30) day appeal period provided under section 25-522(a).

(2)

Criminal Penalties. Any person, whether the owner, lessee, principal, agent, employee or otherwise, who violates any provision of this chapter that results in injury to any person, or to whom the five thousand dollar ($5,000.00) maximum aggregate civil penalty provided in section 25-522(c)(1)d. has been reached and who continues to violate any provision of this chapter as provided in section 25-522(b), or permits either by granting permission to another to engage in the violating act or by not prohibiting the violating act after being informed by the zoning administrator that the act continues to violate this chapter as provided in section 25-522(a), shall be subject to the following:

a.

The person shall have committed a misdemeanor offense punishable by a fine of not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000.00).

b.

If the violation is uncorrected at the time of conviction, the court shall order the person convicted to abate or remedy the violation in compliance with this chapter, within a time period established by the court. Failure to remove or abate such violation within the time period established by the court shall constitute a separate misdemeanor offense punishable by a fine of not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000.00), and any such failure during any succeeding ten (10) day period shall constitute a separate misdemeanor offense for each ten (10) day period, punishable by a fine of not less than one hundred dollars ($100.00) nor more than one thousand five hundred dollars ($1,500.00).

(d)

Revocation of Administrative Permits. This section shall apply to any situation where the applicant has supplied materially misleading information relating to the approval of a permit issued by the Zoning Administrator or the change of a use that increases in intensity or invalidates the requirements of the permit.

If the Zoning Administrator determines that there are reasonable grounds for revocation of a zoning permit, home occupation permit, mobile home permit or a short term rental permit, or approval, the Zoning Administrator shall notify the permit holder in writing. Such notice shall inform the permit holder of the alleged grounds for the revocation and shall include specific reasons or finding of fact that support the revocation. Revocation of a permit by the Zoning Administrator may be appealable to the Board of Zoning Appeals.

A decision to revoke aforementioned permit shall become final thirty (30) calendar days after the date the decision is rendered, unless appealed. After such effective date of revocation, any activities continuing pursuant to such permit shall be deemed to be in violation of this chapter and subject to the penalties detailed herein.

The right to revoke a development permit, as provided in this section, shall be cumulative to any other remedy allowed by law.

(Res. of 1-1-02, § 5-102; Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

Notice required for public hearings. Each public hearing involving planning and zoning matters before the planning commission, the board of supervisors and the board of zoning appeals, requires notice as set forth in section 15.2-2204 of the State Code and below.

(1)

Written notice.

a.

Contents of written notice. All required written notices shall contain:

1.

The time, date and place of hearing;

2.

A brief description of the matter being heard;

3.

Identification of the land subject of the application including the tax map number of the property and complete street address of the property.

b.

Second notice remailed if hearing continued. If a public hearing is continued, then the second notice required in such case shall be remailed.

c.

Notice by county. Notwithstanding any other provisions of this section, whenever the notices required under this section are sent on behalf of an agency, department or division of the county, such notice shall be sent by the zoning administrator and may be sent by first class mail; however, the zoning administrator shall make affidavit that such mailings have been made and file such affidavit with the papers in the case.

d.

Certification. At least five (5) calendar days prior to the hearing, an affidavit, prepared by the person or persons, or their representative providing notice, shall be filed with the zoning administrator certifying that first and second notices have been sent and such affidavit shall include a list of names of those to whom notice was sent. A counterpart of such affidavit shall be presented at the beginning of the public hearing on the application.

e.

Failure to receive notice. Failure to receive any notice of a hearing required by this section, in and of itself, shall not invalidate any action taken at or subsequent to the hearing.

f.

Condominium ownership. In the case of a condominium, written notice may be sent to the unit owner's association instead of to each individual unit owner.

(2)

Newspaper notice. The county shall give newspaper notice prior to each public hearing in accord with section 15.2-2204 of the State Code.

a.

Contents of newspaper notice. The notice shall contain:

1.

The time, date and place of the hearing;

2.

A brief description of the matter being heard;

3.

Identification of the land that is the subject of the application including the tax map number and complete address of the property; and

4.

In the case of a zoning map amendment, including an amendment to an approved concept development plan, or a modification of ordinance regulations, the general usage and density range of the proposed zoning amendment, and the general usage and density range, if any, set forth in the comprehensive plan shall be included within the notice.

(3)

Notice requirements for particular hearings. The following particular hearings require the following form of notice:

a.

Appeals to board of supervisors. Public hearings on appeals to the board of supervisors require that the county provide newspaper notice of the hearing.

b.

Appeals to board of zoning appeals. Public hearings on appeals to the BZA require that the county provide newspaper notice of the hearing.

(4)

Additional notice required.

a.

Tabling indefinitely. If a public hearing is not heard at the time for which it was advertised but is tabled indefinitely without the opening of the public hearing, all notice required by this section shall be given of the deferred public hearing.

b.

Tabling to a date and time certain. If a public hearing is not heard at the time for which it was advertised, but is tabled to a date, time, and place certain without the opening of the public hearing, no further notice shall be required, but may be given at the discretion of the board of supervisors.

c.

Recessed public hearings. If a public hearing is begun but not completed, thereby requiring the meeting to be recessed, no additional notice is required as long as the public hearing is recessed to a date, time, and place certain, but further notice may be given at the discretion of the planning commission or board of supervisors, whichever body has recessed the public hearing.

(5)

Speakers at public hearings. All witnesses and speakers presenting facts and evidence at any public hearing shall provide their name, address and affiliation, if any, for the record.

(Res. of 1-1-02, § 5-103; Res. No. 11-10-10, 10-25-11; Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

The board of zoning appeals shall hear and decide:

(a)

Appeals from any order, requirement, decision or determination made by the zoning administrator or other administrative officer in the administration or enforcement of this chapter, except;

(b)

Appeals or original applications in specific cases for a variance as defined in section 25-601;

(c)

Applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary.

(Res. of 1-1-02, § 5-201; Res. No. 15-12-13, 12-17-15)

State Law reference— Va. Code § 15.2-2309

The board of zoning appeals shall adopt such rules and regulations as it may consider necessary for the orderly conduct of its business.

(Res. of 1-1-02, § 5-202; Res. No. 15-12-13, 12-17-15)

The board of zoning appeals shall consist of five residents of the county appointed by the circuit court.

The term of office of members of the board of zoning appeals shall be five years, except that original appointments shall be made for such terms that the term of one member shall expire each year. Members of the board of zoning appeals shall hold no other public office in the county, except that one of the appointed members may be a member of the planning commission.

Appointments to fill vacancies occurring on the board of zoning appeals otherwise than by expiration of term shall, in all cases, be for the remainder of the unexpired term.

Any member of the board of zoning appeals may be removed, for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the circuit court, after a hearing held after at least 15 days' notice.

Any member of the board of zoning appeals shall be disqualified to act upon a matter before the board with respect to property in which the member has an interest, in accordance with section 2.2-3112 of the Code of Virginia.

(Res. of 1-1-02, § 5-203; Res. No. 15-12-13, 12-17-15)

State Law reference— Va. Code § 15.2-2308

The board of zoning appeals shall choose annually from among its members a chairman and, and in his absence, an acting chairman.

The board of zoning appeals shall choose annually a secretary who is 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 secretary shall prepare minutes of meetings, keep all records and conduct official correspondence of the board.

(Res. of 1-1-02, § 5-204; Res. No. 15-12-13, 12-17-15)

State Law reference— Va. Code § 15.2-2308

Meetings and hearings of the board of zoning appeals shall be held at the call of the chairman or, in the event of his absence or disqualification, the acting chairman, or at the request of any two (2) members, provided notice thereof has been mailed to each member of the board of zoning appeals at least seven (7) days before the time set or that a waiver of notice is obtained from each member. Three (3) members shall constitute a quorum for the transaction of any official business.

The chairman, or in the event of his absence or disqualification, the acting chairman may administer oaths and compel the attendance of witnesses at meetings of the board of zoning appeals.

(Res. of 1-1-02, § 5-205; Res. No. 15-12-13, 12-17-15)

State Law reference— Va. Code § 15.2-2312

Editor's note— Ord. No. 15-12-13, adopted Dec. 17, 2015, repealed § 25-536, which pertained to Powers and duties and derived from Res. of 1-1-02, § 5-206.

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

(Res. of 1-1-02, § 5-207)

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

(Res. of 1-1-02, § 5-208)

All provisions of this chapter relating to the BZA shall be strictly construed. The BZA, as a body of limited jurisdiction, shall act in full conformity with all provisions and definitions in this chapter and the Code of Virginia and in strict compliance with all limitations contained therein.

(Res. of 1-1-02, § 5-209; Res. No. 15-12-13, 12-17-15)

Editor's note— Ord. No. 15-12-13, adopted Dec. 17, 2015, repealed § 25-540, which pertained to Decisions subject to judicial review and derived from Res. of 1-1-02, § 5-210.

(a)

Who may apply; procedure. Any property owner, tenant, government official, department, board, or bureau may apply for a variance. Such application shall be made to the zoning administrator in accordance with rules adopted by the board of zoning appeals, including therewith satisfactory evidence that any delinquent real estate taxes owed to the county which have been properly assessed against the subject property have been paid. The application shall be transmitted promptly to the secretary of the board of zoning appeals, who shall place the matter on the docket to be acted upon by the board.

(b)

Burden of proof. The burden of proof shall be upon the applicant for a variance to prove by a preponderance of the evidence that his application meets the standard for a variance set forth in § 25-601 and the criteria set forth in this section.

(c)

Criteria to be considered. A variance shall be granted if the evidence shows that the strict application of the terms of this chapter would unreasonably restrict the utilization of the property or that the granting of the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance, and:

(1)

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;

(2)

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

(3)

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 the ordinance;

(4)

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

(5)

The relief or remedy sought by the variance application is not available through a special exception permit.

(d)

Conditions and restrictions. In authorizing a variance, the board of zoning 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 ensure that the conditions imposed are being and will continue to be complied with.

(e)

Withdrawal of application. An application or appeal to the board of zoning appeals may be withdrawn by the applicant or appellant at any time prior to the deadline for cancellation of the newspaper advertisement provided for in Va. Code § 15.2-2204. After such deadline, an application or appeal may be withdrawn only with the permission of the board of zoning appeals. An application or appeal which is not withdrawn pursuant to this subsection shall be either granted or denied on the merits, by the board of zoning appeals, either in whole or in part.

(f)

Reapplication. If any application is denied by the board of zoning appeals on the merits, no application requesting the same relief with respect to all or part of the same property shall be considered by the board within 12 months after the date of such denial.

(Res. No. 15-12-13, 12-17-15)

State Law reference— Va. Code § 15.2-2309

(a)

Applications. Applications to the board of zoning appeals may be made by any person aggrieved, or any officer, department or agency of the county affected, by an order, requirement, decision or determination made by an administrative officer in the administration or enforcement of the provisions of this chapter.

(b)

Appeals from administrative ruling. The board of zoning appeals shall hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this chapter.

In case of an appeal from decisions by the zoning administrator to the board of zoning appeals, procedures to be followed shall be in strict accordance with section 15.2-2310 et seq. of the Code of Virginia.

(c)

When appeals may be taken. Appeals to the BZA may be taken by any person aggrieved by an officer, department, board or agency of the county or affected by a decision of the zoning administrator. Appeals shall be taken within thirty (30) days after the decision has been rendered by filing with the zoning administrator from whom the appeal is taken and with the chair of the BZA a notice of appeal specifying the grounds of the appeal. The zoning administrator shall forthwith forward to the chair of the BZA all the papers constituting the record upon which the action appealed from was taken.

(d)

When appeals to stay proceedings. A notice of appeal properly filed as herein provided shall stay all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the BZA that by reason of facts stated in the certificate a stay would, in the zoning administrator's opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by a restraining order which may be granted by the BZA or by a proper court order on notice to the zoning administrator and for good cause shown

(e)

Decision on appeals. Upon receipt of an application or appeal, the board of zoning appeals shall fix a reasonable time for a hearing of such application or appeal in conformance with section 15.2-2204 and 15.2-2205 of the Code of Virginia.

The board of zoning appeals shall render a decision on any application submitted to it within sixty (60) days after the date of the hearing thereon.

(f)

Withdrawal of application. An application or appeal to the board of zoning appeals may be withdrawn by the applicant or appellant at any time prior to the deadline for cancellation of the newspaper advertisement provided for in this article. After such deadline, an application or appeal may be withdrawn only with the permission of the board of zoning appeals. An application or appeal which is not withdrawn pursuant to this subsection shall be either granted or denied on the merits, by the board of zoning appeals, either in whole or in part.

(g)

Proceedings to prevent construction of a building. Where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of the zoning ordinance, 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 zoning administrator to the board of zoning appeals.

(Res. No. 15-12-13, 12-17-15)

(a)

The non-legal staff of the governing body may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. The applicant, landowner, or his agent or attorney may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. If any ex parte discussion of facts or law in fact occurs, the party engaging in such communication shall inform the other party as soon as practicable and advise the other party of the substance of such communication. For the purposes of this section, regardless of whether all parties participate, ex parte communications shall not include (i) discussions as part of a public meeting or (ii) discussions prior to a public meeting to which staff of the governing body, the applicant, landowner or his agent are all invited.

(b)

Any materials relating to a particular case, including a staff recommendation or report furnished to a member of the board, shall be made available without cost to the applicant, appellant or other person aggrieved, as soon as practicable thereafter, but in no event more than three business days after providing such materials to a member of the board. If the applicant, appellant, or other person aggrieved requests additional documents or materials be provided by the locality other than those materials provided to the board, such request shall be made pursuant to the provisions of section 2.2-3704 of the Code of Virginia, as amended. Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to subsection F of section 2.2-3707 of the Code of Virginia, as amended.

(c)

For the purposes of this section, "non-legal staff of the governing body" means any staff who is not in the office of the attorney for the locality, or for the board, or who is appointed by special law or pursuant to Section 15.2-1542 of the Code of Virginia, as amended. Nothing in this section shall preclude the board from having ex parte communications with any attorney or the staff of any attorney where such communication is protected by the attorney-client privilege or other similar privilege or protection of confidentiality.

(Res. No. 15-12-13, 12-17-15)

State Law reference— Va. Code § 15.2-2308.1

(a)

Appeal to circuit court. 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 locality, may file with the Clerk of the Circuit Court for Botetourt County a petition that shall be styled "In re: [date] Decision of the Board of Zoning Appeals of Botetourt County" specifying the grounds on which aggrieved within thirty (30) days after the final decision of the board.

(b)

Circuit court to allow writ of certiorari. 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 secretary of the board of zoning appeals, or if no secretary exists, the chair 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 and on due cause shown, grant a restraining order.

(c)

Parties to proceedings. Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required by this section. The Board of Supervisors of Botetourt County, the landowner, and the applicant before the board of zoning 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 zoning appeals.

(d)

Return of record. 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 of certiorari. 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.

(e)

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

(f)

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

(g)

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

(h)

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

(i)

Costs to be allowed. Costs shall not be allowed against Botetourt County or its board of supervisors, unless it shall appear to the court that it acted in bad faith or with malice. In the event the decision of the board of zoning appeals 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, Botetourt County or its board of supervisors may request that the court hear the matter on the question of whether the appeal was frivolous.

(Res. No. 15-12-13, 12-17-15)

State Law reference— Va. Code § 15.2-2314

The purpose of this subsection is to regulate and limit the development and continued existence of uses, structures, and lots established prior to the effective date of this chapter which do not conform to the requirements of this chapter. Nonconformities may continue as set forth herein, but the provisions of this subsection are designed to curtail substantial investment in nonconformities and to bring about their eventual improvement to a conforming status or elimination in order to preserve the integrity of this chapter and the desired character of the county and to protect the public health and safety.

Any nonconforming use, structure, or lot which lawfully existed as of the effective date of this chapter and which remains nonconforming, and any use, structure, or lot which has become nonconforming as a result of the adoption of this chapter or any subsequent reclassification of zoning districts or other amendment to this chapter, may be continued or maintained only in accordance with the terms of this subsection. The limitations of this subsection shall not apply to structures or lots whose nonconforming features are the subject of a variance that has been granted by the board of zoning appeals or a modification or condition that was approved by the board of supervisors.

It is the intent of this chapter to abide by the letter and spirit of the provisions of section 15.2-2307 of the Code of Virginia. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

Nonconforming uses are declared by this chapter to be incompatible with permitted uses in the districts involved.

(Res. of 1-1-02, § 5-401; Res. No. 11-10-10, 10-25-11)

(a)

Definitions. [For the purposes of this division, the following words and phrases shall have the meanings respectively ascribed to them, unless clearly indicated to the contrary.]

Act of God means any natural disaster or phenomena including a hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, or fire caused by lightning or wild fire.

Nonconforming use means the otherwise legal use of any land, building, sign or other structure that does not conform to all of the use regulations of this chapter for the district in which it is located, either on January 1, 2002, or as a result of subsequent amendments to this chapter.

Nonconforming lot means a platted building lot that does not conform to the minimum area or frontage requirements of this chapter for the district in which it is located either on January 1, 2002, or as a result of subsequent amendment of this chapter, and which:

(i)

has public water, or a health department approved well or other health department approved water system, and

(ii)

has public sewer or a health department approved individual septic system.

Nonconforming structure means an otherwise legal building or structure that does not conform with the lot area, yard, height, lot coverage or other area regulations of this chapter, or is designed or intended for a use that does not conform to the use regulations of this chapter for the district in which it is located, either on January 1, 2002, or as a result of subsequent amendments to this chapter.

(b)

Nonconformities. Within the districts established by this chapter or amendments that may later be adopted there exist lots, structures and uses of land or structures, which were lawful before this chapter was passed or amended but which do not conform to regulations and restrictions under the terms of this chapter or future amendments thereto.

(c)

Continuation. Where, on January 1, 2002, a lawful use of land and/or structures exists which would not be permitted by this chapter, the use may be continued so long as it remains otherwise lawful. A use of land or use of structure established in violation of contemporary zoning regulations shall be considered to be illegal, not nonconforming.

(d)

Existing permits. To avoid undue hardship, if the county issues a building permit, the building or structure is thereafter constructed in accordance with the building permit, and upon completion of construction, the county issues a certificate of occupancy or use permit therefore, the building or structure may be found nonconforming but not illegal. Notwithstanding the foregoing, the county may require the building or structure be brought in compliance with the Uniform Statewide Building Code.

(e)

Special exceptions. Any use which is permissible as a special exception in a district under the terms of this chapter shall not be deemed a nonconforming use in such district, but shall, with written notification and proof to the zoning administrator, be considered a conforming special exception use in that district.

(f)

Changes to district boundaries. Whenever a zoning district boundary shall be changed by amendment of this chapter initiated by the board of supervisors, any use, lot or structure affected by such change shall thereafter be required to meet the most current district regulations. Such affected use, lot or structure shall be accorded nonconforming use, lot and/or structure status as may be appropriate.

(g)

Condemnation. Any lot which, by reason of realignment of a federal or state highway or condemnation proceedings, has been reduced in size to any area less than that required by this chapter shall be considered a nonconforming lot of record subject to the provisions set forth in this section, and any lawful use or structure existing at the time of such highway realignment or condemnation proceedings which would thereafter no longer be permitted under the terms of this chapter shall be considered a nonconforming use or structure, as that term is used in this chapter.

(h)

Violations not nonconformities. Uses or structures established in violation of contemporary zoning regulations are violations and not to be classified as non-conformities. The burden of proof shall be upon the owner of the property in case of dispute.

(i)

Accessory uses/buildings, signs. A nonconforming use of a structure, a nonconforming use of land or a nonconforming use of a structure and land in combination shall not be continued, extended or enlarged by use or establishment of either an accessory use or building or by attachment on a building or premises of additional signs intended to be seen from off the premises.

(Res. of 1-1-02, § 5-402; Ord. No. 05-02-14, 2-22-05; Res. No. 11-10-10, 10-25-11)

(a)

Expansion. No nonconforming use shall be enlarged or increased or extended to occupy a greater area of land than was occupied on January 1, 2002, or the effective date of an amendment to this chapter, unless such enlargement does not result in an increase in nonconformity or results in a change to a use permitted in the district.

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this chapter, but no such use shall be extended to occupy any land outside such building.

(b)

Discontinuance. If any nonconforming use of land and/or structure ceases for any reason for a period of more than two (2) years, except when government action impedes access to the premises, or the premises is damaged or destroyed as a direct result of conditions resulting in a federal disaster declaration as set forth in Section 25-564(c)(v) herein, any subsequent use of such land and/or structure shall conform to the regulations specified by this chapter for the district in which such land is located.

(c)

Change. If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may, as a special exception, be changed to another nonconforming use; provided, that the board of zoning appeals, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use.

(d)

Superseded. When any nonconforming use, or structure and use in combination, is superseded by a permitted use and/or structure, the use shall thereafter conform to the regulations for the district, and no nonconforming use and/or structure shall thereafter be resumed.

(e)

Moving. No such nonconforming use and/or structure shall be moved in whole or in part to any portion of the land or parcel other than that occupied by such use and/or structure at the effective date or amendment of this chapter, unless such move results in decreasing the degree of nonconformity or results in conformity with the requirements for the district.

(f)

Establish. No additional uses of a nature which would be prohibited generally in the district involved shall be permitted.

(g)

Automobile graveyards. Automobile graveyards and junkyards in existence as of January 1, 2002 are to be considered as nonconforming uses and the owner is required to completely screen the operation in accordance with the definition of buffering/screening contained in article IV, division 4 of this chapter.

(Res. of 1-1-02, § 5-403; Res. No. 11-10-10, 10-25-11)

(a)

Alteration/enlargement. No such nonconforming use and/or structure shall be enlarged or increased or extended to occupy a greater area of land than was occupied on January 1, 2002, or the effective date of an amendment of this chapter, unless such enlargement does not result in an increase in nonconformity or results in a change to a use permitted in the district.

(b)

Maintenance. Nothing in this article shall be deemed to prevent the routine maintenance, strengthening or other work required to ensure the safe condition of any nonconforming building or part thereof; provided, that such maintenance shall not result in an increase in nonconformity as set forth in (a) above. The status as nonconforming structure shall be maintained if complete records and receipts are provided to the zoning administrator upon request.

On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of twelve (12) consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding ten (10) percent of the current replacement cost of the nonconforming structure or nonconforming portion of the structure, as the case may be; provided, that the cubic content existing when it became nonconforming shall not be increased. The status as nonconforming structure shall be maintained if complete records and receipts are provided to the zoning administrator upon request.

(c)

Restoration.

(i)

If a nonconforming structure or portion thereof containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, rebuilt or used, except in conformity with the regulations of the district in which it is located.

(ii)

If a nonconforming structure is damaged or destroyed by a natural disaster or other act of God, the owner may repair, rebuild, or replace such structure to eliminate or reduce the nonconforming features to the extent possible, without the need to obtain a variance as provided in Code of Virginia § 15.2-2310. If such structure is damaged greater than 50 percent and cannot be repaired, rebuilt, or replaced except to restore it to its original nonconforming condition, the owner shall have the right to do so.

(iii)

Before undertaking any work pursuant to (i) or (ii) as set forth herein, the owner shall apply for a building permit and all work done shall be in compliance with the provisions of the Uniform Statewide Building Code (Section 36-97 et seq.) and the provisions of Article III, Division 1, Flood Hazard Overlay District of this chapter.

(iv)

Cost of land or any other factors other than the cost of the structure are excluded from determinations of cost of restoration and of reconstructing entire structure.

(v)

Any restoration must be started and completed within twenty-four (24) months of the date of a specific damaging event or else such structure shall only be repaired, rebuilt, or replaced in accordance with the provisions of this chapter. However, if the nonconforming building is in an area under a federal disaster declaration and the building has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, then any restoration must be started and completed within forty-eight (48) months of the date of the damaging event. Owners of property damaged by an accidental fire shall have the same right to rebuild such nonconforming property as if it were damaged by an act of God. Nothing herein shall be construed to enable the property owner to commit arson under Code of Virginia §§ 18.2-77 or 18.2-80, and obtain vested rights under this section.

(d)

Moving. No such nonconforming use and/or structure shall be moved in whole or in part to any portion of the land or parcel other than that occupied by such use and/or structure at the effective date or amendment of this chapter, unless such move results in decreasing the degree of nonconformity or results in conformity with the requirements for the district.

(e)

Pre-existing setback. Any structure which existed on the date of adoption of this chapter which is nonconforming solely due to a setback or yard requirement imposed by this may be enlarged, increased, extended, repaired or replaced so long as any such improvements do not result in an increase in the degree of nonconformity.

(f)

Establish. No additional structure not conforming to the requirements of this chapter shall be erected. A structure established in violation of contemporary zoning regulations shall be considered illegal, not nonconforming.

(Res. of 1-1-02, § 5-404; Res. No. 11-10-10, 10-25-11)

(a)

Use of nonconforming lots. In any district, permitted structures may be erected on any single nonconforming lot of record, notwithstanding limitations imposed by other provisions of this chapter. Such lot of record must be in separate ownership from all undeveloped adjoining lots.

(b)

Division, boundary line adjustment. No lot or parcel or portion thereof shall be used or sold in a manner diminishing compliance with lot width or other requirements established by this chapter, nor shall any division be made which creates a lot with width or area below the requirements stated in this chapter.

Notwithstanding the provisions of the paragraph above, boundary line adjustments may be permitted between nonconforming lots, or between a conforming and a nonconforming lot, provided the zoning administrator finds that the degree of nonconformity for any lot resulting from such boundary line adjustment is not increased due to such adjustment.

(c)

Setbacks. Any lot existing as a lot of record or approved as part of a preliminary subdivision plat prior to the time of adoption of this chapter and located within the FC, A-1, AR, R-1, R-2 or R-3 districts, is subject to the setback provisions of that district prior to the time of adoption of this chapter.

(Res. of 1-1-02, § 5-405; Ord. No. 05-02-14, 2-22-05)

No permitted principal or accessory building, structure or use, or building, structure or use permissible by special exception shall be constructed, reconstructed, moved, added to or structurally altered or otherwise allowed without a permit therefore issued by the building official and approved by the zoning administrator.

A zoning permit is required in all cases where a building permit is required.

Failure to obtain a zoning permit shall be a violation of this chapter and punishable under section 25-522 of this chapter.

Lots platted before January 1, 2002, shall be subject to the restrictions of this chapter.

The planning commission may request a review of the zoning permit approved by the administrator, in order to determine if the contemplated use is in accordance with the district in which the construction lies. Similarly, upon request by the zoning administrator, the planning commission shall provide guidance regarding the appropriate zoning district for a proposed structure or parcel of land.

The zoning administrator shall maintain a record of all zoning permits and a copy shall be furnished, upon request, to any person.

(1)

Application for zoning permit. An application for a zoning permit shall be made to the zoning administrator, who shall require and be furnished with all such plans and documents as may be required to determine whether the proposed structure and facilities will be in compliance with the provisions of this chapter. Each such application for a zoning permit shall be accompanied by the following items, or as much thereof as the zoning administrator deems pertinent, and such additional information as the zoning administrator may require as being pertinent:

a.

A certificate from the health officer that the proposed location meets the requirements of the health department from the standpoint of water supply and sewage disposal, or where a public water or sewerage system is involved, a statement from the county public works department that all applicable regulations and requirements have been complied with.

b.

A grading permit, as required.

c.

The intended use.

d.

If a dwelling, the number of families or housekeeping units.

e.

A plot plan signed by the applicant drawn to scale showing dimensions of the structure with respect to property lines and public highways; provided, no part of which is to be located less than the setback distance from any property line or right-of-way of any public highway.

f.

Number, size, location and lighting of signs, if any.

g.

Off-street parking and other facilities.

h.

Proposed utilities and their location.

i.

Drainage scheme.

j.

Topographic map, if determined to be necessary.

(2)

Standards for issuance. Building permits or zoning permits issued on the basis of plans and applications approved by the zoning administrator authorize only the use, arrangement and construction set forth in such approved plans and applications, and no other use, arrangement or construction. Use, arrangement and construction at variance with that authorized shall be deemed a violation of this chapter and punishable as provided under section 25-522 of this chapter.

No zoning permit shall be issued where it appears that the structure to be constructed or the use contemplated would be in violation of the provisions of this chapter or any other applicable law, ordinance or regulation. The issuance of a zoning permit, however, shall not afford protection to any owner who is found to be violating this chapter or any other applicable law, ordinance or regulation. If it appears that the proposed structure and use of land or structure is in conformity with the provisions of this chapter, a zoning permit shall be issued to the applicant by the zoning administrator. If an intended use is found to be in compliance with this chapter, before proceeding, the applicant is required to consult the building official to ensure compliance with the Virginia Uniform Statewide Building Code.

(3)

Duration of valid zoning permit. Any zoning permit issued shall conform to the time limits set forth by the building official in the building permit.

(4)

Temporary zoning approval. A letter of temporary zoning approval may be issued by the zoning administrator for a period not exceeding six (6) months during alterations or partial occupancy of a building pending its completion. Such temporary approval may include such conditions and safeguards as will protect the safety of the occupants and the public. Any violations of these conditions shall be remedied under the provisions of section 25-522 of this chapter.

(Res. of 1-1-02, § 5-501)

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 building official. Such permit shall state that the building or the proposed use, or the uses 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 for either the whole or a part of a building, shall be applied for simultaneously with application for a zoning permit. The permit shall be issued within ten (10) days after the erection or structural alteration or such building part has conformed with the provisions of this chapter.

No certificate of occupancy shall be granted until all improvements shown on an approved site plan have been completed in accordance therewith; provided, that upon a finding by the zoning administrator that certain improvements cannot be completed due to seasonal or other factors beyond the control of the developer and that temporary occupancy prior to completion will involve no health or safety hazard, he may instruct the building official to issue a temporary certificate of occupancy bearing an expiration date, which date shall allow reasonable time for completion.

(Res. of 1-1-02, § 5-502)

(a)

Purpose. Due to the unique rural nature of the county and the proximity of the Roanoke Urban Area, certain review measures are necessary to ensure and encourage the most appropriate development and wise use of land in harmony with the neighborhood, local environment and public infrastructure. Therefore, a site plan shall be required in certain use districts and for certain uses in which the scale and type of development requires local review and concern.

(b)

Site plan required. No person shall commence any use or erect any structure, including additions to existing structures, parking areas or other required site plan features, without first obtaining the approval of a site plan by the zoning administrator as set forth in this article, and no use shall be carried on, no structure erected or enlarged and no other improvement or construction undertaken except as shown upon an approved site plan.

A site plan shall be required for the following uses in the enumerated districts unless waived by the zoning administrator if the type, scale and/or location of the proposed development does not necessitate such plans:

(1)

Duplexes, multi-family dwellings, town houses and mobile home subdivisions and mobile home parks … R-1, R-2, R-3

(2)

All uses … PUD, TND

(3)

All uses … M-1, M-2, M-3, PIP, RAM

(4)

All uses … SC

(5)

All uses … B-1, B-2, B-3, POP

(6)

For all special exceptions.

(c)

Exemptions. The following are exempt from having to file a site plan:

(1)

The lawful construction, alteration and occupancy of a single or two-family dwelling or mobile home, with or without a garage.

(2)

Any lawful use, alteration or construction for agricultural or residential uses in district A-1, RR and district FC. Churches and schools in these districts shall file a site plan in accordance with this chapter.

Exemption from the site plan requirements does not authorize violation of any other provision of this chapter.

(Res. of 1-1-02, § 5-503; Res. No. 11-10-10, 10-25-11; Res. No. 13-02-11, 2-26-13; Res. No. 15-12-13, 12-17-15)

(a)

Site plan requirements. Every site plan shall be submitted to the zoning administrator in accordance with the applicable standards and regulations for site plans. In all respects, the site plan shall comply with all provisions of this chapter and other provisions of law.

(b)

Form and content.

(1)

Every site plan shall be submitted to the zoning administrator in three identical copies on one or more sheets of paper measuring not more than 24 by 36 inches, drawn to a scale not smaller than 40 feet to the inch, unless an alternative scale is approved by the zoning administrator. Site plans required by the county shall be prepared by a professional engineer, architect, landscape architect or land surveyor who is registered by the Commonwealth of Virginia and is conducting their practice in accordance with Code of Virginia § 54.1-400 et seq., as amended. This requirement may be waived by the zoning administrator if the type, scale and/or location of the proposed development does not necessitate such plans. The site plan shall show the following:

a.

The boundary lines of the area included in the site plan, including angles, dimensions and reference to a point in a recorded plat, an arrow pointing north, a scale bar and the lot area of the land included in the site plan.

b.

Existing and proposed grades and drainage systems and structures with topographic contours at intervals not exceeding two feet.

c.

The shape, size, location, height and floor area of all structures and the finished ground and basement floor grades.

d.

Natural features, such as woodlots, streams and lakes or ponds, and man-made features, such as existing roads and structures, with indication as to which are to be retained and which removed or altered. Adjacent properties and their uses shall be identified.

e.

Proposed streets, driveways, parking spaces, loading spaces and sidewalks, with indication of direction of travel for one-way streets and drives and inside radii of all curves. The width of streets, driveways and sidewalks and the total number of parking spaces shall be shown.

f.

The size and location of all existing and proposed public and private utilities and required landscaping, including terraces, plants, fences, retaining walls, conceptual outdoor lighting and recycling facilities as required or otherwise provided for in the zoning ordinance.

g.

A vicinity sketch showing the location of the site in relation to the surrounding street system.

h.

A legal description of land included in the site plan and of the lot and the name, address and telephone and facsimile number and a mailing address of the owner, developer and designer.

i.

A description of any and all proffered conditions as they apply to the project including any uses that may be excluded by such proffers.

j.

Any other information necessary to establish compliances with this chapter and other ordinances or the availability of adequate utility capacity.

(2)

All site plans should contain the following features:

a.

Parking patterns to be utilized (angular or perpendicular).

b.

Avoidance of conflict between customer traffic and truck service traffic.

c.

Circulation within the site area to avoid customer automobiles entering public streets, should they shift parking spaces while shopping at the center.

d.

Arrangements of store locations to create areas of compatible merchandise, for distribution of their pulling power, tenant mix and for eliminating poor store locations and difficult parking situations.

e.

Attractive areas for pedestrian access.

(Res. of 1-1-02, § 5-503; Res. No. 11-10-10, 10-25-11; Res. No. 13-02-11, 2-26-13; Res. No. 15-12-13, 12-17-15)

(a)

Completeness. An applicant for a site plan shall submit copies of the site plan and other documents as required herein to the zoning administrator for review. The zoning administrator shall determine within 10 days if the site plan and documents comply with the minimum submission requirements of this chapter. If deemed to be complete, the site plan is thereby officially accepted as of the date of receipt in the agent's office, which shall be called the "official date of submission." If not accepted, the reasons shall be indicated by the zoning administrator in writing and returned with the documents and site plan to the applicant. Acceptance of the application for processing shall not be deemed a determination that the site plan meets the requirements for approval.

(b)

Review and action.

(1)

If the zoning administrator determines that no agency review of a site plan is necessary, then within 60 days after the official date of submission of the site plan, the zoning administrator shall act on the application. If the zoning administrator approves the application, approval shall be evidenced by the zoning administrator's signature on the final site plan, thereby indicating that the site plan is in conformance with the requirements and provisions of this chapter, and that all construction plans and profiles are designed in accordance with all county public facility regulations and requirements.

(2)

If the zoning administrator determines that agency review will be necessary, then within 10 days after the official date of submission of the site plan, the zoning administrator shall forward copies of the site plan to all review agencies. Such review agencies shall complete their review and forward comments to the agent within 45 days, unless otherwise provided by law. Following receipt of all agency comments, the zoning administrator shall act upon the site plan within 35 days.

(3)

If all requirements and conditions of this chapter are not met, the zoning administrator shall not approve the site plan. Written reasons for such disapproval shall identify specific deficiencies with respect to adopted regulations, and shall generally identify such modifications or corrections as will permit approval of the plat.

(4)

Upon resubmission of a disapproved final plat, the zoning administrator shall make a determination within 10 days of resubmission of whether the changes are directed to remedying the deficiencies that resulted in rejection or are substantive amendments to the site plan. If the changes are directed to remedying the deficiencies that resulted in rejection, then the zoning administrator shall act within 45 days of the official date of submission of the revised site plan. If the changes are substantive amendments to the site plan, the plan shall be processed as a new original site plan application.

(c)

Revisions to, or deviation from, approved 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 and which better serve the overall purposes of this section, may be approved by the zoning administrator. Deviation from an approved site plan without the written approval of the zoning administrator shall void the plan and the zoning administrator shall require the applicant to resubmit a new site plan for consideration. Any major revision of an approved site plan shall be made in the same manner as originally approved.

(Res. of 1-1-02, § 5-503; Res. No. 11-10-10, 10-25-11; Res. No. 13-02-11, 2-26-13; Res. No. 15-12-13, 12-17-15)

(a)

When applicable. This section applies to all site plan applications to which Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. § 1455 and 47 C.F.R. § 1.40001, as amended) is applicable and shall supersede any conflicting requirements of this chapter. Site plans shall be required for all uses to which this section is applicable. Notwithstanding any other requirement of this chapter, no special exception shall be required for applications to which this section is applicable.

(b)

Lawful nonconformities. Any site plan filed pursuant to this process shall not be treated as an expansion of a nonconforming use in violation of this chapter so long as such use was lawfully established.

(c)

Application requirements. The application requirements for any application under this section shall be the same as for any other site plan. The zoning administrator shall, within 30 days of submission of an application, determine whether such application is complete for reviewing. Supplemental submissions shall be reviewed for completeness within 10 days of receipt. Such determination of completeness shall not be construed to mean that any application complies with all requirements of this chapter. The date on which a complete application is submitted shall be construed to be the official date of submission.

(d)

Timeframe for review. The zoning administrator shall approve or disapprove a site plan application under this section within 60 days from the official date of submission.

(e)

Deemed complete. Upon the applicant giving written notice to the zoning administrator that the 60-day time period has elapsed without action of the zoning administrator, the site plan shall be deemed granted. Notwithstanding the deemed approval of any proposed site plan, any deficiency that would, if left uncorrected, violate local, state, or federal law, regulations, or mandatory engineering and safety requirements, shall not be deemed as having been approved by the zoning administrator.

(Res. of 1-1-02, § 5-503; Res. No. 11-10-10, 10-25-11; Res. No. 13-02-11, 2-26-13; Res. No. 15-12-13, 12-17-15)

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

(Res. of 1-1-02, § 5-504)

Subdivision approval is required under the circumstances prescribed in the Botetourt County Land Subdivision and Development Ordinance section of the County Code.

(Res. of 1-1-02, § 5-505)

(a)

Permit required. In accord with the Code of Virginia, Section 15.2-2232, no street, park or other public area or public structure, public utility, public building or public service corporation facility other than railroads, whether publicly or privately owned, shall be constructed, established or authorized unless and until the general location or approximate location, character and extent thereof has been submitted to and approved by the planning commission as being substantially in accord with the adopted comprehensive plan or part thereof.

Widening, narrowing, extension, enlargement, vacation or change of use of streets or public areas shall likewise be submitted for approval, but paving, repair, reconstruction, improvement, drainage or similar work and normal service extensions of public utilities or public service corporations shall not require approval, unless involving a change in location or extent of a street or public area.

(b)

Application. An application for a commission permit shall be filed with the zoning administrator and shall meet the minimum submission requirements as prescribed in section 25-521(c).

Application is not necessary for features already specifically shown on the comprehensive plan.

(c)

Planning commission action. In connection with any such determination, the Commission may, and at the direction of the board of supervisors shall, hold a public hearing, after notice as required by §§ 15.2-2204 and 15.2-2205 of the Code of Virginia.

The commission shall communicate its findings pursuant to this section to the board of supervisors, indicating its approval or disapproval, with written reasons therefore. Failure of the commission to act within sixty (60) days of such submission, unless such time shall be extended by the board, shall be deemed approval.

(d)

Board of supervisors. The zoning administrator shall issue a commission permit following approval by the planning commission pursuant to this section. Such approval shall be subject to ratification by the board of supervisors pursuant to provisions of section 15.2-2232 of the Code of Virginia.

The board may overrule the action of the commission by a vote of a majority of the membership thereof; provided, that failure of the board to act within sixty (60) days of the date of transmittal of approving action of the commission shall constitute ratification.

(e)

Appeal. In case of disapproval, the owners or their agents may appeal the decision of the commission to the board within ten (10) days after the decision of the commission. The appeal shall be by written petition to the board setting forth the reasons for the appeal. A majority vote of the board shall overrule the commission.

(Res. of 1-1-02, § 5-506)

(a)

Who may apply. The owner or the agent of the owner of any parcel of real property may file an application to rezone the parcel to another zoning district. The application must show consent of all those who have a legal ownership interest in the property under consideration, excluding those whose only interest is a security interest. The application must be filed on a form to be prescribed by the zoning administrator. The zoning administrator may require satisfactory evidence that any delinquent real estate taxes owed to the county have been paid.

(b)

Preapplication conference. An applicant may request a preapplication conference with the zoning administrator to discuss the requirements for an application under this section. The zoning administrator shall schedule the preapplication conference at a mutually convenient time not later than ten (10) days following the request, unless otherwise agreed between the zoning administrator and the applicant.

(c)

What application to contain; completeness. The form prescribed by the zoning administrator must, at a minimum, include:

(1)

Name of the owner(s) and applicant(s), including any agency agreement giving authority to the applicant to apply on the owner's behalf, if applicable;

(2)

Tax Map Number and GIS-quality map of the property showing the area to be rezoned, its current zoning, and its proposed new zoning classification;

(3)

A written statement of justification from the applicant explaining the reasons why a rezoning is requested.

(4)

Such other and further information as may be required in individual district regulations.

Upon submission of an application to the zoning administrator, including any application fee, the zoning administrator shall, within ten (10) days, determine whether it is substantially complete. If the application is not substantially complete, then the zoning administrator shall notify the applicant in writing of the materials that must be submitted to complete the application. Nothing herein shall be construed to prohibit the zoning administrator, planning commission, or board of supervisors from requesting, or the applicant from submitting, such other and further information as may be necessary to analyze the application fully.

(d)

Planning commission recommendation. The zoning administrator shall transmit the application to the planning commission, along with a staff report making a recommendation on the application. The planning commission shall hold a public hearing and make a recommendation on the application not later than one hundred (100) days following its next meeting following submission of a complete application to the zoning administrator, unless such time period is extended by written agreement between the applicant and the planning commission.

(e)

Action of the board of supervisors. The planning commission shall transmit its recommendation to the board of supervisors. The zoning administrator may revise any previously-submitted staff report making a recommendation on the application. The board of supervisors shall hold a public hearing and make a final decision on the application not later than twelve (12) months following submission of a complete application to the zoning administrator, unless such time period is extended by written agreement between the applicant and the board of supervisors.

(f)

Withdrawal of application. An applicant may amend or withdraw an application until the zoning administrator has ordered advertisement of the planning commission's public hearing. Once the planning commission has advertised its public hearing, the applicant may only withdraw the application by leave of the planning commission. Following the planning commission public hearing, an applicant may amend or withdraw an application until the clerk of the board of supervisors has ordered advertisement of the board's public hearing on the application. Once the board of supervisors has advertised its public hearing, the applicant may only withdraw the application by leave of the board of supervisors. The board of supervisors may put such conditions on the withdrawal as it may find reasonable, including prohibiting substantially the same application being brought again for not more than twelve (12) months.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

(a)

Initiation. At any time, the board of supervisors or the planning commission may initiate by resolution an amendment to the zoning map or the text of the zoning ordinance.

(b)

Planning commission recommendation. If the amendment originates in the planning commission, the commission may make a recommendation on the amendment at any time following a public hearing thereon. If the amendment originates with the board of supervisors, the commission shall hold a public hearing and make a recommendation thereon not later than one hundred (100) days following its next meeting following referral to it by the board of supervisors, unless such referring resolution specifies a longer time.

(c)

Action of the board of supervisors. The planning commission shall transmit its recommendation to the board of supervisors forthwith. The zoning administrator may revise any previously-submitted staff report making a recommendation on the application. The board of supervisors shall hold a public hearing and make a final decision on the application.

(d)

Stale recommendations. If not acted upon by the board of supervisors within twelve (12) months of the planning commission's public hearing, the recommendation shall be considered "stale" and must be re-referred to the planning commission for further public hearing thereon.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

(a)

Who may apply. The owner or the agent of the owner of any parcel of real property, or any other resident of the county, may file a petition for a change in the text of the zoning ordinance. The petition must be filed on a form to be prescribed by the zoning administrator. The petitioner shall state with reasonable specificity the text that he wishes to be added, deleted, or amended.

(b)

Action by the board of supervisors. The zoning administrator shall transmit the petition to the clerk of the board of supervisors, who shall place such petition on the board's agenda in accordance with its bylaws or practices. The zoning administrator shall also transmit a staff report and recommendation relating to the petition. The board of supervisors may refer the petition to the planning commission, and it shall then be treated as a board-initiated text amendment in accordance with section 25-581.1.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

(a)

Who may apply. The owner or the agent of the owner of any parcel of real property may file a petition for an amendment to the comprehensive plan or the official map. The petition must be filed on a form to be prescribed by the zoning administrator. The petitioner shall state with reasonable specificity the amendment he seeks.

(b)

Action by the board of supervisors. The zoning administrator shall transmit the petition to the clerk of the board of supervisors, who shall place such petition on the board's agenda in accordance with its bylaws or practices. The zoning administrator shall also transmit to the board of supervisors a staff report and recommendation relating to the petition. The board of supervisors may, but need not, refer the petition to the planning commission, and it shall then be processed in accordance with section 25-581.4.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

(a)

Initiation. If the board of supervisors desires an amendment to the comprehensive plan or the official map, whether on its own motion or upon citizen petition approved as set forth in section 25-581.3, it may prepare such amendment and refer it to the planning commission or direct the planning commission to prepare such amendment and submit it to public hearing within sixty (60) days or such longer time as may be specified in the referring resolution.

(b)

Action of the board of supervisors. In acting on any amendment to the plan or official map, the board of supervisors shall act within ninety (90) days of any recommendation of the planning commission or the expiration of the time the board of supervisors granted the planning commission under subsection (a), whichever is longer. If the board of supervisors does not act, the planning commission's recommendation shall become "stale" and must be re-referred to the planning commission for further public hearing thereon.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

As set forth in section 25-47 of this Code, an applicant for a change to the zoning map in accordance with section 25-581 may voluntarily proffer written conditions and/or a master plan as set forth in individual district regulations. Proffered conditions shall be signed by all persons having an ownership interest in the property and shall be notarized.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

Cross reference— County Code §§ 25-188, 25-202.

State Law reference— Va. Code § 15.2-2297.

(a)

Purpose. The special exception permit procedure is designed to provide the board of supervisors with an opportunity for discretionary review of requests to establish or construct uses or structures which have the potential for a deleterious impact upon the health, safety, and welfare of the public; and, in the event such uses or structures are approved, the authority to impose conditions that are designed to avoid, minimize or mitigate potentially adverse effects upon the community or other properties in the vicinity of the proposed use or structure.

(b)

Authorized special exception uses. A special exception is a conditional use that is permitted within a use district after review and recommendation by the planning commission and approval by the board of supervisors. Only those special exception permits that are expressly authorized as such in a particular zoning district, or elsewhere in this chapter may be approved. The board of supervisors hereby reserves unto itself the right to issue such special exceptions.

(c)

Who may apply. The owner or the agent of the owner of any parcel of real property may file an application for a special exception when permitted under the applicable district regulations. The application must show consent of all those who have a legal ownership interest in the property under consideration, excluding those whose only interest is a security interest. The application must be filed on a form to be prescribed by the zoning administrator. The zoning administrator may require satisfactory evidence that any delinquent real estate taxes owed to the county have been paid.

(d)

Preapplication conference. An applicant may request a preapplication conference with the zoning administrator to discuss the requirements for an application under this section. The zoning administrator shall schedule the preapplication conference at a mutually convenient time not later than ten (10) days following the request, unless otherwise agreed between the zoning administrator and the applicant.

(e)

What application to contain; completeness. The form prescribed by the zoning administrator must, at a minimum, include:

(1)

Name of the owner(s) and applicant(s), including any agency agreement giving authority to the applicant to apply on the owner's behalf, if applicable;

(2)

Tax Map Number and GIS-quality map of the property showing the area for which the special exception permit is being requested, and its current zoning;

(3)

A written statement of justification from the applicant explaining the reasons why a special exception is requested;

(4)

Such other and further information as may be required in individual district regulations.

Upon submission of an application to the zoning administrator, including any application fee, the zoning administrator shall, within ten (10) days, determine whether it is substantially complete. If the application is not substantially complete, then the zoning administrator shall notify the applicant in writing of the materials that must be submitted to complete the application. Nothing herein shall be construed to prohibit the zoning administrator, planning commission, or board of supervisors from requesting, or the applicant from submitting, such other and further information as may be necessary to analyze the application fully.

(f)

Planning commission recommendation. The zoning administrator shall transmit the application to the planning commission, along with a staff report making a recommendation on the application. The planning commission shall hold a public hearing and make a recommendation on the application not later than one hundred (100) days following its next meeting following submission of a complete application to the zoning administrator, unless such time period is extended by written agreement between the applicant and the planning commission.

(g)

Action of the board of supervisors. The planning commission shall transmit its recommendation to the board of supervisors. The zoning administrator may revise any previously-submitted staff report making a recommendation on the application. The board of supervisors shall hold a public hearing and make a final decision on the application not later than twelve (12) months following submission of a complete application to the zoning administrator, unless such time period is extended by written agreement between the applicant and the board of supervisors.

(h)

Withdrawal of application. An applicant may amend or withdraw an application until the zoning administrator has ordered advertisement of the planning commission's public hearing. Once the planning commission has advertised its public hearing, the applicant may only withdraw the application by leave of the planning commission. Following the planning commission public hearing, an applicant may amend or withdraw an application until the clerk of the board of supervisors has ordered advertisement of the board's public hearing on the application. Once the board of supervisors has advertised its public hearing, the applicant may only withdraw the application by leave of the board of supervisors. The board of supervisors may put such conditions on the withdrawal as it may find reasonable, including prohibiting substantially the same application being brought again for not more than twelve (12) months.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

Cross reference— County Code §§ 25-188, 25-202.

(a)

When applicable. This section applies to all special exception applications to which Section 704 of the Telecommunications Act of 1996 (47 U.S.C. § 332(c)(7), as amended) is applicable and shall supersede any conflicting requirements of this chapter.

(b)

Who may apply. The owner or the agent of the owner of any parcel of real property may file an application for a special exception when permitted under the applicable district regulations. The application must show consent of all those who have a legal ownership interest in the property under consideration, excluding those whose only interest is a security interest. The application must be filed on a form to be prescribed by the zoning administrator. The zoning administrator may require satisfactory evidence that any delinquent real estate taxes owed to the county have been paid.

(c)

Preapplication conference. An applicant may request a preapplication conference with the zoning administrator to discuss the requirements for an application under this section. The zoning administrator shall schedule the preapplication conference at a mutually convenient time not later than ten (10) days following the request, unless otherwise agreed between the zoning administrator and the applicant.

(d)

What application to contain; completeness. The form prescribed by the zoning administrator must, at a minimum, include:

1.

Name of the owner(s) and applicant(s), including any agency agreement giving authority to the applicant to apply on the owner's behalf, if applicable;

2.

Tax Map Number and GIS-quality map of the property showing the area for which the special exception permit is being requested, and its current zoning;

3.

A written statement of justification from the applicant explaining the reasons why a special exception permit is requested;

4.

Such other and further information as may be required in individual district regulations as well as Article IV.-Supplemental Regulations of this chapter.

Upon submission of an application to the zoning administrator, including any application fee, the zoning administrator shall, within thirty (30) days, determine whether it is substantially complete. If the application is not substantially complete, then the zoning administrator shall notify the applicant in writing of the materials that must be submitted to complete the application. The time limitations set forth in subsections (e) and (f) shall be tolled during the period between the date the zoning administrator gives written notice and the date such information is received. Nothing herein shall be construed to prohibit the zoning administrator, planning commission, or board of supervisors from requesting, or the applicant from submitting, such other and further information as may be necessary to analyze the application fully.

(e)

Planning commission recommendation. The zoning administrator shall transmit the application to the planning commission, along with a staff report making a recommendation on the application. The planning commission shall hold a public hearing and make a recommendation on the application not later than ninety (90) days following submission of a complete application to the zoning administrator, unless such time period is extended by written agreement between the applicant and the planning commission. If the planning commission fails to act, the application shall be deemed forwarded without recommendation, and the zoning administrator shall forward the application to the board of supervisors for action in accordance with subsection (f).

(f)

Action of the board of supervisors. The planning commission or zoning administrator, as applicable, shall transmit the application and recommendation to the board of supervisors. The zoning administrator may revise any previously-submitted staff report making a recommendation on the application. The board of supervisors shall hold a public hearing and make a final decision on the application not later than one hundred fifty (150) days following submission of a complete application to the zoning administrator, unless such time period is extended by written agreement between the applicant and the board of supervisors.

(g)

Collocations. Collocations to which section 25-573.3 of this Code are not applicable shall be subject to limitations of sixty (60) days before the planning commission and one hundred twenty (120) days before the board of supervisors, but otherwise processed as set forth in subsections (e) and (f), mutatis mutandis.

(h)

Withdrawal of application. An applicant may amend or withdraw an application until the zoning administrator has ordered advertisement of the planning commission's public hearing. Once the planning commission has advertised its public hearing, the applicant may only withdraw the application by leave of the planning commission. Following the planning commission public hearing, an applicant may amend or withdraw an application until the clerk of the board of supervisors has ordered advertisement of the board's public hearing on the application. Once the board of supervisors has advertised its public hearing, the applicant may only withdraw the application by leave of the board of supervisors. The board of supervisors may put such conditions on the withdrawal as it may find reasonable, including prohibiting substantially the same application being brought again for not more than twelve (12) months.

(i)

Written record and verbatim transcriptions. The zoning administrator shall make a written record of all proceedings relating to the processing of any application to which this section applies. The written record shall contain all public records relating to the application, as the term "public record" is used in the Virginia Freedom of Information Act. The planning commission and board of supervisors shall cause any meeting that is open to the public relating to such application to be recorded and/or transcribed by a verbatim transcriptionist, and such recording or transcription shall be made a part of the written record.

(j)

Written decision. The board of supervisors shall adopt a written rationale for its decision on an application under this section within two days after its decision. Such decision shall be adopted in substance by the board of supervisors, but the final draft may be drafted, if so directed by the board of supervisors, by the zoning administrator with the concurrence of the county attorney.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)

(a)

Issues for consideration. In considering whether to grant or impose conditions on a special exception permit , the following factors shall be given reasonable consideration. The applicant shall address all the following in its statement of justification or special exception permit plat unless not applicable, in addition to any other standards imposed by this chapter:

(1)

Whether the proposed special exception permit is consistent with the comprehensive plan.

(2)

Whether the proposed special exception permit will adequately provide for safety from fire hazards and have effective measures of fire control.

(3)

The level and impact of any noise emanating from the site, including that generated by the proposed use, in relation to the uses in the immediate area.

(4)

The glare or light that may be generated by the proposed use in relation to uses in the immediate area.

(5)

The proposed location, lighting and type of signs in relation to the proposed use, uses in the area, and the sign requirements of this chapter.

(6)

The compatibility of the proposed use with other existing or proposed uses in the neighborhood, and adjacent parcels.

(7)

The location and area footprint with dimensions (all drawn to scale), nature and height of existing or proposed buildings, structures, walls, and fences on the site and in the neighborhood.

(8)

The nature and extent of existing or proposed landscaping, screening and buffering on the site and in the neighborhood.

(9)

The timing and phasing of the proposed development and the duration of the proposed use.

(10)

Whether the proposed special exception permit will result in the preservation or destruction, loss or damage of any topographic or physical, natural, scenic, archaeological or historic feature of significant importance.

(11)

Whether the proposed special exception permit at the specified location will contribute to or promote the welfare or convenience of the public.

(12)

The traffic expected to be generated by the proposed use, the adequacy of access roads and the vehicular and pedestrian circulation elements (on and off-site) of the proposed use, all in relation to the public's interest in pedestrian and vehicular safety, efficient traffic movement and access in case of fire or catastrophe.

(13)

Whether, in the case of existing structures proposed to be converted to uses requiring a special exception permit, the structures meet all code requirements of Botetourt County.

(14)

Whether the proposed special exception permit will be served adequately by essential public facilities and services.

(15)

The effect of the proposed special exception permit on groundwater supply.

(16)

The effect of the proposed special exception permit on the structural capacity of the soils.

(17)

Whether the proposed use will facilitate orderly and safe road development and transportation.

(18)

The effect of the proposed special exception permit on environmentally sensitive land or natural features, wildlife habitat and vegetation, water quality and air quality.

(19)

Whether the proposed special exception permit use will provide desirable employment and enlarge the tax base by encouraging economic development activities consistent with the comprehensive plan.

(20)

Whether the proposed special exception permit considers the needs of agriculture, industry, and businesses in future growth.

(21)

The effect of the proposed special exception permit use in enhancing affordable shelter opportunities for residents of the county.

(22)

The location, character, and size of any outdoor storage.

(23)

The proposed use of open space.

(24)

The location of any major floodplain and steep slopes.

(25)

The location and use of any existing non-conforming uses and structures.

(26)

The location and type of any fuel and fuel storage.

(27)

The location and use of any anticipated accessory uses and structures.

(28)

The area of each use, if appropriate.

(29)

The proposed days/hours of operation.

(30)

The location and screening of parking and loading spaces and/or areas.

(31)

The location and nature of any proposed security features and provisions.

(32)

The number of employees.

(33)

The location of any existing and/or proposed adequate on and off-site infrastructure.

(34)

Any anticipated odors which may be generated by the uses on site.

(35)

Whether the proposed special exception permit uses sufficient measure to mitigate the impact of construction traffic on existing neighborhoods and school areas.

(36)

Refuse and service areas, with particular reference to the items in (1) and (2).

(37)

Utilities, with reference to location, availability and compatibility.

(38)

Any other matter reasonably related to the public health, safety, and general welfare.

(b)

Conditions and restrictions. In approving a special exception permit, the board of supervisors may impose such conditions, safeguards and restrictions upon the property to which the special exception permit is applicable as may be necessary to avoid, minimize or mitigate any potentially adverse or injurious effect of such special exception permits upon the community or other property in the neighborhood, and to carry out the general purpose and intent of this chapter. Conditions and restrictions may include, but are not limited to, those related to fencing, planting or other landscaping, additional set backs from property lines, location and arrangement of lighting, setting of reasonable time limitations and other reasonable requirements deemed necessary to safeguard the interest of the general public. All required conditions shall be set out in the resolution approving the special exception permit.

(c)

Effect of issuance of permit for a special exception. The issuance of a special exception permit shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for any permits or approvals which may be required by the codes and ordinances of the county, including, but not limited to, a building permit, a certificate of occupancy, site plan and subdivision approval and a zoning permit, as appropriate.

(d)

Period of validity.

(1)

Unless a longer period of validity is specifically approved as a part of such application, no special exception permit shall be valid for a period longer than five (5) years from the date on which the special exception permit was granted, unless within such five (5) year period: (1) a building permit is obtained and the erection or alteration of a structure is started and diligently pursued, or (2) an occupancy permit is obtained and a use commenced; or (3) issuance of a zoning permit. Such period of validity may be extended for good cause shown, by application to the board of supervisors.

(2)

As a condition of approval, a special exception permit may be granted for a specific period of time less than five (5) years with expiration of the approval to occur at the termination of said period. In such case, an extension may be granted prior to expiration by the original approving body, upon written application, without notice or hearing. After expiration, no extension may be granted without complying with the requirements for an initial application for a special exception permit.

(e)

Rehearing. A request for rehearing shall be made in writing, filed with the zoning administrator within fifteen (15) calendar days after the date of the decision, and shall cite the reasons for the request. A rehearing may be granted only upon the affirmative vote of a majority of the board of supervisors. No amendment to an application shall be permitted in the rehearing process. Any amendment to an application after decision by the board constitutes a new application.

(f)

Exception for emergencies. When there is an urgent and immediate need for housing for persons who have been displaced by a natural or man-made disaster, the requirements of this chapter may be waived by the zoning administrator for a period not to exceed twelve (12) months when, in the exercise of his discretion, he is of the opinion that the imposition of such requirements would create a hardship for such displaced persons.

(Res. No. 16-05-14, 5-24-16; Res. No. 16-05-15, 5-24-16; Res. No. 16-05-16, 5-24-16; Res. No. 16-05-17, 5-24-16)