A.

General authority of zoning administration.

1.

The zoning administrator shall have all necessary authority to administer and enforce the provisions of this ordinance, including the authority to order in writing that any condition found in violation of this ordinance be remedied, and the ability to bring legal action to ensure compliance with the provisions of this ordinance, including injunction, abatement or other appropriate action or proceeding. The zoning administrator shall have all necessary authority to order in writing that a violation be ceased immediately in the following cases: 1) where any construction, erection, extension, enlargement, alteration, repair, renovation, dismantling, demolition, or relocation of a structure is in violation of this ordinance; or 2) if a use is not permitted or conditionally allowed pursuant to this ordinance and has not been deemed a lawful nonconformity pursuant to article 15 of this ordinance; or 3) if such use is unlawful under local, state, or federal law.

2.

In the case of properties subject to conditions imposed through a conditional rezoning, the authority of the zoning administrator shall be as set out in section 16-205 of this ordinance.

3.

Disputes over a decision or determination by any other city official regarding the administration or enforcement of this zoning ordinance shall be referred to the zoning administrator for determination, in such format as the zoning administrator may require.

4.

Notwithstanding any other provisions of the zoning ordinance to the contrary, the zoning administrator, with the concurrence of the emergency management director or designee pursuant to section 2-623 of the City Code, may authorize temporary housing, storage, and emergency response facilities when necessary to respond to the public needs during a local, state, or national disaster caused by either natural or man-made events by enactment of a regulation promulgated pursuant to subsection 2-624(b) of the City Code. If city council approves of the continuance of such regulation (in whole or part) on a temporary basis after the confirmation and cessation of a declared emergency, the time period for which they are authorized shall be specified by ordinance.

B.

Building permit required. No building or other structure shall be erected or moved nor shall any existing building or structure hereafter be altered in any manner, unless and until a building permit therefor has been approved by the zoning administrator. The zoning administrator shall in no case approve a building permit for the construction or alteration of any building not in conformity with the provisions of this ordinance, except by written order of the board of zoning appeals.

C.

Certificate of occupancy required. No land shall be used or occupied and no building hereafter newly constructed, structurally altered, erected or moved shall be used, or its use changed, until a certificate of occupancy is issued by the director of development and permits, or designee, stating that the land and/or building, and the proposed use thereof, complies with the provisions of this ordinance, the Chesapeake city Code and the Virginia Uniform Statewide Building Code. A record of all certificates shall be kept on file with the director of development and permits, or designee. A temporary certificate of occupancy may be issued by the director of development and permits, or designee, for a period not exceeding six (6) months during alterations or partial occupancy of a building pending its completion, provided that such temporary certificate may be subject to conditions and safeguards deemed necessary by the director to protect the safety of the occupants and the public.

D.

Inspections, permits and other actions. The zoning administrator or the administrator's designated agent shall have the authority to make inspections, issue permits and take any other action deemed necessary to properly administer this ordinance.

(Ord. No. 97-O-120, 9-16-97; Ord. No. 04-O-011, 1-20-04; Ord. No. 09-O-051, 5-19-09; Ord. No. 18-O-087, 11-13-18; Ord. No. 19-O-111, 8-20-19)

A.

Fee schedules.

1.

The city council shall adopt a schedule of fees, charges and expenses for all permits, certificates, appeals and other matters required by or pertaining to this ordinance as part of its annual budget ordinance.

2.

Reserved.

B.

Cost of publishing notice. In addition to the fees described above, an applicant for a rezoning, conditional use permit, special exception, variance or other land use approval requiring advertisement under § 15.2-2204 of the Code of Virginia shall be responsible for the payment of all costs incurred in publishing notice in a newspaper of general circulation in accordance with state and city law.

C.

Payment of fees required prior to valid action. No permit, certificate, plat approval, conditional use, rezoning, special exception, or variance shall be issued until such costs, charges, fees, or expenses as established by city council have been paid in full; nor shall any action be taken on proceedings before the board of zoning appeals until all administrative fees have been paid in full.

D.

Refund of fees. Refunds of fees paid to the department of development and Permits shall be handled pursuant to the adopted refund policy established by that department. Persons who have paid one or more of the foregoing fees to the department of planning may, in accordance with the conditions set out below, apply for a refund of such fees by submitting a written request specifying the reasons for the refund request to the director of planning or designee for the fees.

1.

All refund requests may be subject to an administrative processing fee of twenty-five dollars ($25.00), as determined by the director of planning or designee. Accordingly, no refunds shall be issued for fees, costs, charges or expenses of twenty-five dollars ($25.00) or less.

2.

No refund shall be made unless expressly authorized by this ordinance or the City Code.

3.

A refund of twenty-five (25) percent of the fee for rezonings, conditional use permits, special exceptions, and other land use approvals may be made if the application is withdrawn prior to the city having arranged to advertise the hearing at which the planning commission will consider the application. No refund will be made if the application is withdrawn after the city has arranged to advertise the public hearing at which the application was to be heard.

(Ord. No. 97-O-120, 9-16-97; Ord. No. 03-O-052, 5-13-03; Ord. No. 05-O-041, 4-19-05; Ord. No. 05-O-130, 10-18-05; Ord. No. 06-O-054, 5-16-06; Ord. No. 07-O-068, 5-8-07; Ord. No. 07-O-069, 5-8-07; Ord. No. 09-O-013, 2-17-09; Ord. No. 09-O-051, 5-19-09; Ord. No. 10-O-043, 5-25-10; Ord. No. 12-O-048, 5-15-12; Ord. No. 17-O-081, 11-21-17; Ord. No. 21-O-067, 6-15-21; Ord. No. 22-O-051A, 5-17-22)

If the zoning administrator shall find that any of the provisions of this ordinance are being violated, the zoning administrator shall notify in writing the person responsible for such violations, indicating the nature of the violation, and ordering the action necessary to correct it. The zoning administrator shall order discontinuance of illegal use of land, buildings or structures; removal of illegal buildings or structures or of additions, alterations or structural changes thereto; issue stop work orders citing specific violation(s) and requiring immediate discontinuance of any construction, erection, extension, enlargement, alteration, repair, renovation, dismantling, demolition, or relocation of a structure in violation of this ordinance, or immediate discontinuance of a use that is not permitted or conditionally allowed pursuant to this ordinance and has not been deemed a lawful nonconformity pursuant to article 15 of this ordinance or is otherwise unlawful under local, state, or federal law; or shall take any other action authorized by this ordinance or state law to ensure compliance with or to prevent violation of its provisions.

(Ord. No. 18-O-087, 11-13-18)

A.

Permits or licenses void if in conflict with ordinance.

1.

All permits, licenses or other authorizations affecting uses or structures within the city must conform with the provisions of this ordinance, unless City Council approves a Reasonable Deviation pursuant to Section 19-206 of this Zoning Ordinance. Any permit, license or other authorization which is issued in conflict with the provisions of this ordinance shall be null and void.

2.

It shall be the responsibility of the person obtaining a permit, license or other authorization affecting uses or structures on land to determine whether such permit, license or other authorization is in conformity with this ordinance, and whether additional authorizations are needed to enable such person to use the land or structure as proposed.

B.

Penalty for violation. Any person, firm or corporation, whether as principal, agent, employee or otherwise, violating, causing or permitting the violation of any of the provisions of this ordinance shall be guilty of a misdemeanor and, upon conviction thereof, be fined no more than one thousand dollars ($1,000.00). If the violation is uncorrected at the time of the conviction, the court shall order the violator to abate or remedy the violation in compliance with this ordinance, within a time period established by the court. Failure to remove or abate the zoning violation within the specified time period shall constitute a separate misdemeanor offense punishable by a fine of no more than one thousand dollars ($1,000.00); any such failure during a succeeding ten-day period shall constitute a separate, second misdemeanor offense punishable by a fine of no more than one thousand five hundred dollars ($1,500.00). Further, any additional failure to remove or abate such violation during any succeeding ten-day period shall constitute a separate misdemeanor offense for each ten-day period punishable by a fine of no more than two thousand dollars ($2,000.00). Nothing herein contained shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation, including without limitation, pursuing injunctive relief.

C.

Infractions and civil penalties.

1.

A violation of the following provisions of this ordinance shall be deemed an infraction and shall be punishable by a civil penalty of one hundred fifty dollars ($150.00) for a first offense and two hundred fifty dollars ($250.00) for each subsequent offense arising from the same set of operative facts:

a.

Parking of major recreational equipment in residential zoning districts in violation of section 6-2002 of this ordinance.

b.

Parking of commercial vehicles in residential zoning districts in violation of section 6-2003 of this ordinance.

c.

Parking in a public right-of-way in furtherance of commercial purposes in violation of section 19-404 of this ordinance.

d.

Failing to comply with sign regulations set out in section 14-700 of this ordinance, except as it relates to the posting of signs on public property or public rights-of-way.

e.

False certification on applications for rezonings (section 16-102); conditional use permits (section 17-102); preliminary site plans (section 18-201); and final site plans (section 18-301).

f.

Storage of inoperative or inoperable motor vehicles on residential property in violation of chapter 74 of the City Code (subsection 14-102.B.11.a. of this ordinance); provided that, if three (3) civil penalties not arising from the same set of operative facts have been imposed on the same defendant within a 24-month period, then Class 3 misdemeanor charges may be pursued; but such charges shall preclude further imposition of civil penalties for the same violation.

g.

Keeping livestock as an accessory to a residential use in violation of section 14-900 of this ordinance.

h.

Failing to comply with fence and shed regulations set out in section 14-200 of this ordinance.

i.

Failing to comply with home occupation regulations set out in section 14-300 of this ordinance.

j.

Operating a kennel in violation of section 6-2102 of this ordinance.

k.

Failing to comply with skateboard ramp regulations set out in section 14-800 of this ordinance.

l.

Failing to obtain a building permit in violation of subsection 20-101(B) of this ordinance.

2.

Each day during which any violation of the provisions enumerated in paragraph (1) above is found to have existed shall constitute a separate offense. However, in no event shall any such violation arising from the same set of operative facts be charged more frequently than once in any ten-day period, nor shall a series of such violations arising from the same set of operative facts result in civil penalties which exceed a total of five thousand dollars ($5,000.00).

3.

The designation of a particular violation of this ordinance as an infraction pursuant to paragraph (1) above shall be in lieu of criminal sanctions, and except for any violation resulting in injury to any person or persons, such designation shall preclude the prosecution of a violation as a criminal misdemeanor; provided, however that criminal prosecution is permitted when such civil penalties total five thousand dollars ($5,000.00) or more.

4.

After having served a notice of violation on any person, firm or corporation, whether as principal, agent, employee or otherwise, causing or permitting a violation of the zoning ordinance provisions enumerated in paragraph (1) above and if such violation has not ceased or been corrected within such reasonable time as is specified in such notice or recurs thereafter, the zoning administrator or designee shall issue a civil summons or cause a summons or ticket to be served on such person by certified mail, return receipt requested, or as otherwise provided by law.

5.

The summons or ticket shall contain the following information:

a.

The name and address of the person charged.

b.

The nature of the infraction and the ordinance provision(s) being violated.

c.

The location, date, and time that the infraction occurred or was observed.

d.

The amount of the civil penalty assessed for the infraction.

e.

The manner, location, and time in which the civil penalty may be paid to the city.

f.

The right of the recipient of the summons or ticket to elect to stand trial for the infraction and the date of such trial.

6.

The summons or ticket shall provide that any person summonsed for a violation may elect to pay the civil penalty by making an appearance in person or in writing by mail to the city treasurer, or designee, at least seventy-two (72) hours prior to the time and date fixed for trial and, by such appearance, may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged. Such summons or ticket shall provide that 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 the violation remains uncorrected at the time of the admission of liability, the violator shall abate or remedy the violation within a time period ordered by the court but no later than six (6) months after the date of admission. Each day the during which the violation continues shall constitute a separate offense.

7.

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. If the violation remains uncorrected at the time of the admission of liability, the court may order the violator to abate or remedy the violation within a time period ordered by the court but no later than six (6) months after the date of a finding of liability. Each day during which the violation continues shall constitute a separate offense.

8.

The remedies provided in this section are cumulative and not exclusive and shall be in addition to any other remedies provided by law, including but not limited to injunctive relief, mandamus and any other appropriate action to prevent, enjoin, abate or remove any structure, vehicle or use in violation of this ordinance.

(Ord. No. 97-O-120, 9-16-97; Ord. No. 99-O-117, 8-17-99; Ord. No. 05-O-130, 10-18-05; Ord. No. 07-O-059, 5-1-07; Ord. No. 09-O-007, 1-27-09; Ord. No. 10-O-116, 9-21-10; Ord. No. 18-O-028, 3-20-18; Ord. No. 18-O-087, 11-13-18; Ord. No. 19-O-011, 1-15-19; Ord. No. 22-O-051A, 5-17-22; Ord. No. 24-O-079, 7-16-24; Ord. No. 24-O-090, 8-20-24)

Editor's note— Ord. No. 19-O-011, adopted January 15, 2019, provides for an effective date retroactive to July 1, 2018.

It is the intent of this ordinance that all questions of interpretation and enforcement shall be first presented to the zoning administrator, and that such questions shall be presented to the board of zoning appeals only on appeal from the decision of the zoning administrator, and that recourse from the decisions of the board of zoning appeals shall be to the courts as provided by law and particularly by Title 15.2 of the Code of Virginia, 1950, as amended.

(Ord. No. 15-O-119, 9-15-15)

A.

Board of zoning appeals continued in existence; appointment and terms of office.

1.

The board of zoning appeals for the city of Chesapeake currently existing under authority of prior law is hereby continued in existence.

2.

The board of zoning appeals shall consist of seven (7) residents of the City of Chesapeake appointed by the Circuit Court of the City of Chesapeake for a term of three (3) years; provided, however, that the court may make certain appointments subject to a shorter initial term so that the term of not more than one (1) member expires each year. The circuit court shall also appoint at least one (1) but not more than three (3) alternates to the board of zoning appeals. The secretary of the board shall notify the court at least thirty (30) days in advance of the expiration of any term of office, and shall also notify the court promptly if any vacancy occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term.

3.

Members of the board shall hold no other public office in the municipality except that members may serve as officers of election, and one (1) member may be a member of the local planning commission.

4.

A member whose term expires shall continue to serve until that member's successor is appointed and qualifies.

B.

Officers, quorum for meetings and rules of procedures.

1.

The board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.

2.

Notwithstanding any other provision of law, general or special for the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the board, and the board shall offer an equal amount of time in a hearing on the case to the applicant, appellant or other person aggrieved under § 15.2-2314 of the Code of Virginia, and the staff of the local governing body.

3.

The board may make, alter and rescind bylaws, rules and forms for its procedures, consistent with ordinances of the city of Chesapeake and general laws of the commonwealth.

C.

Ex parte communications, proceedings.

1.

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 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 or attorney are all invited.

2.

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 such applicant, appellant or other person aggrieved under § 15.2-2314 of the Code of Virginia, as soon as practicable thereafter, but in no event more than three (3) business days of providing such materials to a member of the board. If the applicant, appellant or other person aggrieved under § 15.2-2314 of the Code of Virginia 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 § 2.2-3704 of the Code of Virginia. Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to subsection F of § 2.2-3707 of the Code of Virginia.

3.

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 § 15.2-1542 of the Code of Virginia. Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff of any attorney where such communication is protected by the attorney-client privilege or other similar privilege or protection of confidentiality.

D.

Meetings.

1.

Meetings shall be held at the call of the chairman and at such other times as the board may determine.

2.

The chairman of the board or, in the chairman's absence, the acting chairman may administer oaths and compel the attendance of witnesses.

3.

The board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the board and shall be public records.

E.

Annual report. The board shall submit a report of its activities to the city council at least once each year, summarizing all appeals and applications made to it since its last previous report and summarizing its decisions on such appeals and applications. Copies of this report shall also be submitted to the zoning administrator, the planning commission, the planning department and the city attorney.

F.

Removal of members. Any board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause, by the court which appointed that member, after a hearing is held, after at least fifteen days' notice.

(Ord. No. 97-O-120, 9-16-97; Ord. No. 14-O-035, 4-15-14; Ord. No. 15-O-119, 9-15-15; Ord. No. 20-O-093, 9-15-20; Ord. No. 23-O-005, 1-17-23)

A.

In general. The board shall have the following powers and duties:

1.

To hear and decide appeals from the decisions or determinations of the zoning administrator in the administration or enforcement of this ordinance. The decision on such appeal shall be based on the board's judgment of whether the zoning administrator was correct. The determination of the zoning administrator shall be presumed to be correct. At a hearing on appeal, the zoning administrator shall explain the basis for his determination after which the applicant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence. The board shall consider any applicable ordinances, laws, and regulations in making its decision. For purposes of this section, "determination" means any decision or determination of the zoning administrator. Any appeal of a decision or determination to the board shall be in compliance with § 15.2-2309 of the Code of Virginia, notwithstanding any other provision of law, general or special.

2.

Notwithstanding any other provision of law, general or special, to grant, upon appeal or original application in specific cases, a variance as defined in § 15.2-2201 of the Code of Virginia, provided that the burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that the application meets the standard for a variance as defined in § 15.2-2201 of the Code of Virginia and the criteria set out in this ordinance.

3.

To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by the question, and after public hearing with notice as required by § 15.2-2204 of the Code of Virginia, the board may interpret the map in such way as to carry out the intent and purpose of the ordinance for the particular zoning or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.

B.

No authority to rezone. No provision of this article shall be construed as granting the board the power to rezone property.

(Ord. No. 15-O-119, 9-15-15)

A.

In general. The term "variances" as defined in § 15.2-2201 of the Code of Virginia shall mean a reasonable deviation from zoning ordinance requirements regulating the shape, size, or area of a lot or parcel of land; or the size, height, area, bulk, or location of a building or structure; when strict application of the ordinance would unreasonably restrict the utilization of the property and such need for a variance would not be shared generally by other property; and provided such variance is not contrary to the purpose of this ordinance.

B.

Use variances not authorized. The board shall not be empowered to vary any of the provisions of this ordinance relating to the use of land, buildings or structures.

(Ord. No. 15-O-119, 9-15-15; Ord. No. 17-O-081, 11-21-17)

A.

General standards. Notwithstanding any other provision of law, general or special, a variance shall be granted if the evidence shows that the strict application of the terms of the ordinance would unreasonably restrict the utilization of the property or that the granting of the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance or alleviate a hardship by permitting a reasonable modification be made to a property for the benefit of a person with a protected disability status, and (i) the property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance; (ii) the granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; (iii) the condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this ordinance; (iv) the granting of the variance does not result in a use that is not otherwise permitted on such property or a change in the zoning classification of the property; and (v) the relief or remedy sought by the variance application is not available through a conditional use permit, rezoning, or amendment of this ordinance at the time of the filing of the variance application. Any variance granted to provide a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a protected disability status may expire when the person benefited by it is no longer in need of the modification to such property or improvements provided by the variance, subject to the provisions of state and federal fair housing laws or the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12131 et seq., as amended), as applicable. If a request for a reasonable modification is made and is appropriate under the provisions of state and federal fair housing laws or the Americans with Disabilities Act of 1990, as applicable, such request shall be granted unless a variance from the board of zoning appeals is required in order for such request to be granted.

B.

Action and specific findings required. The board shall either approve, deny or approve with conditions the request for a variance. The board of zoning appeals shall not vary the regulations of this ordinance as authorized above unless and until the standards for granting a variance have been met.

C.

Conditions as part of variance. In granting a variance, the board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest and may also require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. Notwithstanding any other provision of law, general or special, the property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state law and local ordinance; however, the structure permitted by the variance may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance is required under the ordinance. Where the expansion is proposed within an area of the site or part of the structure for which a variance is required, the approval of an additional variance shall be required. Violation of conditions and safeguards of the variance shall be deemed a violation of this ordinance.

(Ord. No. 10-O-106, 8-17-10; Ord. No. 15-O-119, 9-15-15; Ord. No. 19-O-010, 1-15-19)

Editor's note— Ord. No. 19-O-010, adopted January 15, 2019, provides for an effective date retroactive to July 1, 2018.

The burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that his application meets the standard for a variance as set out in this ordinance.

(Ord. No. 15-O-119, 9-15-15)

The board of zoning appeals is authorized to hear appeals from any order, requirement, decision or determination made by the zoning administrator in the interpretation, administration or enforcement of this ordinance. In this capacity, the board exercises appellate jurisdiction as a quasi-judicial body, and its task is to determine whether the zoning administrator was correct in the interpretation and application of this ordinance. In doing so, the board shall consider the purpose, intent and meaning of the ordinances, laws and regulations in question. In no event however, shall the board substitute its judgment for that of the city council by basing its decision on the merits of the ordinances and regulations at issue. The decision of the zoning administrator is presumed to be correct, with the burden being upon the applicant to demonstrate error.

(Ord. No. 00-O-116, 10-17-00)

In the case where a zoning applicant or other person having legal standing is aggrieved, as defined by law, by a decision of the zoning administrator in interpreting, applying and enforcing the terms of a conditional rezoning, appeal shall be made to the city council, in accordance with section 16-205 of this ordinance and other applicable law.

A.

Action by board. In exercising the authority herein granted the board may, in conformity with the provisions of this ordinance, reverse or affirm wholly or partly or may modify the order, requirement, decision or determination appealed from.

B.

Required findings and conclusions. Any decision of the board shall be supported by findings of fact and a conclusion that the decision of the zoning administrator was: (1) correct in the interpretation and application of the zoning ordinance; (2) plainly wrong in the interpretation of the zoning ordinance; or (3) plainly wrong in the application of the zoning ordinance to the particular facts presented.

A.

Who may appeal. Appeals must be taken within thirty (30) days after a written decision has been rendered by the zoning administrator. When a timely appeal is not taken, the decision of the zoning administrator shall be final and binding.

B.

Appeals to the Board of Zoning Appeals related to over-crowding of residential units. An appeal shall be taken within ten (10) days from any order, requirement, decision or determination issued by the zoning administrator relating to a violation of the maximum number of persons occupying the same dwelling unit. When a timely appeal is not taken the decision of the zoning administrator shall be final and binding.

(Ord. No. 08-O-137, 10-21-08)

The board may hear and decide applications for interpretation of the zoning map for purposes of determining the location of a district boundary, subject to the following standards:

A.

Consistency with intent and purpose of the ordinance. The board's interpretation of the map shall carry out the intent and purpose of this ordinance for the particular section or district in question.

B.

No substantial change authorized. The board shall not have the power to change substantially the locations of district boundaries as established under this ordinance.

A.

Variances and interpretations of district maps. Any person owning or having a possessory or contractual interest in the property, with the consent of the owner, may file with the zoning administrator an application for a variance or for an interpretation of the district map in regard to such property.

B.

Appeals from decisions of zoning administrator. Any person aggrieved or any officer, department, board or agency of the city affected by a decision of the zoning administrator may, within the required timeframe, appeal that decision to the board through application filed with the zoning administrator.

A.

Filing fee required. A filing fee, including the costs of processing the application and advertising in accordance with Virginia Code § 15.2-2204, shall be established by city council in its annual budget ordinance. The fee shall be remitted to the zoning administrator with an application for appeal or variance. No application for appeal or variance shall be considered complete until the filing fee is paid in full. Refunds of application fees may be made in accordance with the adopted refund policy established by the department of development and permits.

B.

Contents of application. An application shall be made on such form or forms as may be provided by the zoning administrator and shall contain such information as the zoning administrator may require. If the zoning administrator determines that the application is incomplete, the application shall be returned to the applicant with a written statement identifying the deficiencies in the application.

C.

Application forwarded to the board. The zoning administrator shall forthwith forward to the recording secretary of the board all documents relating to a complete application, and the matter shall be scheduled for hearing in accordance with the procedures and practices of the board. If the recording secretary determines that the application is incomplete, the application shall be returned to the applicant with a written statement identifying the deficiencies in the application. In the event that the application for appeal or variance is not completed within thirty (30) days of the date of written notification to the applicant of deficiencies in the application, the application will be deemed withdrawn and all rights of appeal under section 15.2-2311 of the Code of Virginia, 1950, as amended are forfeited.

D.

Application forwarded to the planning commission. The zoning administrator shall also transmit a copy of the application to the planning commission which may send a recommendation to the board or appear as a party at the hearing.

E.

Notice. In addition to any requirements contained in the Code of Virginia, the zoning administrator shall require that each applicant for a variance post a sign indicating the date and time that the application has been scheduled for a public hearing in the manner prescribed by section 16-105 of this ordinance.

(Ord. No. 97-O-120, 9-16-97; Ord. No. 04-O-009, 1-20-04; Ord. No. 10-O-125, 10-19-10; Ord. No. 22-O-051A, 5-17-22; Ord. No. 23-O-091, 8-15-23)

An appeal from a decision of the zoning administrator, an application for a variance or an application for interpretation of a district map, properly filed as herein provided, shall stay proceedings in furtherance of the zoning administrator's decision or in enforcement of the provision of this ordinance from which a variance is sought or in regard to which the district map interpretation may be requested; provided, however, that enforcement proceedings shall not be stayed where the zoning administrator certifies to the board that, by reason of the facts stated in the certificate, a stay would cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order granted by a court of competent jurisdiction.

A.

Scheduling of public hearing.

1.

Upon determining that an application is complete, the zoning administrator shall schedule the matter for consideration by the board of zoning appeals in accordance with the procedures and practices of the board.

2.

Notice of the hearing shall be provided in accordance with the requirements of section 15.2-2204, Code of Virginia, 1950, as amended.

B.

Hearing and decision.

1.

The board shall hold a duly noticed public hearing, as required under section 15.2-2312 of the Code of Virginia, 1950, as amended, within a reasonable time of completion of the application.

2.

The board shall render a decision within ninety (90) days of the filing of a complete application.

C.

Requirements for decisions.

1.

The concurring vote of a majority of the membership of the board shall be necessary to reverse any order, requirement, decision or determination of the zoning administrator or to effect any variance from the ordinance.

2.

Each decision of the board shall be supported by findings of fact and conclusions with respect to the standards of this ordinance and other applicable law.

(Ord. No. 97-O-120, 9-16-97; Ord. No. 15-O-119, 9-15-15; Ord. No. 17-O-081, 11-21-17)

The findings of the board shall be final decisions. The board shall not give consideration to any application which is the same or substantially the same as any application considered by the board within the past preceding twelve (12) months; provided, however, that the board may, within its discretion, grant a request for a rehearing where it is evident that a substantial procedural error occurred which deprived either the city, the applicant or the landowner of actual notice of the original hearing on any matter reviewed by the board. The board shall grant an applicant one (1) rehearing where an appeal or request for a variance is denied due to the applicant's failure to appear at the first public hearing at which the appeal or variance was scheduled to be heard.

(Ord. No. 97-O-120, 9-16-97)

The decisions and findings of the board shall be subject to judicial review only upon the filing of a timely appeal complying with the provisions set out below.

A.

Who may appeal. 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 city aggrieved by such decision may present to the circuit court of the city a petition specifying the grounds on which such person is or persons are aggrieved.

B.

Timeframe for appeal. Any such appeal must be filed within thirty days after the date the board has rendered its decision.

C.

Issuance of writ of certiorari by the court. 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 parties of opposing interest, which shall not be less than ten days and which may be extended by the court.

D.

Stay of enforcement proceedings. 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 where deemed appropriate.

E.

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

F.

Taking of evidence by the court. Any party may introduce evidence in the proceedings in the court in accordance with the Rules of Evidence of the Supreme Court of Virginia.

G.

Burden of proof appeals. 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 any ordinance or provision of state law, or any modification of zoning requirements pursuant to § 15.2-2286 of the Code of Virginia, 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.

H.

Burden of proof variances. In the 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 be presumed to be correct. The petitioner 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.

I.

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

J.

Costs of proceedings. Costs shall not be allowed against the locality, unless it shall appear to the court that it acted in bad faith or with malice. In the event the decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making a return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the locality may request that the court hear the matter on the question of whether the appeal was frivolous.

(Ord. No. 96-O-148, 9-17-96; Ord. No. 10-O-126, 10-19-10; Ord. No. 15-O-119, 9-15-15)

In addition to the specific requirements set out above, the organization, operations and decisions of the board of zoning appeals shall also be subject to the provisions of state law governing it.