8.1.1. A board consisting of seven members shall be appointed by the circuit court of the county. The board shall serve without pay other than for traveling expenses. Appointments for vacancies occurring other than by expiration of term shall in all cases be for the unexpired term.

8.1.2. The term of office shall be for five years, except that original appointments shall be made for such terms that the term of at least one member shall expire each year. Members of the board of zoning appeals appointed and qualified at the time of the enactment hereof shall continue to serve the balance of the term for which they were appointed.

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

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

8.1.5. The board shall choose annually its own chairperson and vice-chairperson who shall act in the absence of the chairperson.

(Readopted and Amended 10-5-2015)

Cross reference— Boards and commissions, § 2-106 et seq.

The board of zoning appeals shall have the following powers and duties:

8.2.1. To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this ordinance. The decision on such appeal shall be based on the board's judgement of whether the administrative officer was correct. The determination of the administrative officer shall be presumed to be correct. At the hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant 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 order, requirement decision or determination made by an administrative officer. Any appeal of a determination to the board shall be in compliance with this section, notwithstanding any other provision of law, general or special.

8.2.2. Notwithstanding any other provision of law, general or special, to grant upon appeal or original application in specific cased a variance as defined in section 2.173 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 defined in Code of Virginia, § 15.2-2201 and the criteria set out in this section.

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 improvement thereon at the time of the effective date of the ordinance, 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; (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 or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the 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 special exception process that is authorized in the ordinance pursuant to subdivision 6 of Code of Virginia, § 15.2-2309 or the process for modification of a zoning ordinance pursuant to subdivision A4 of Code of Virginia, § 15.2-2286 at the time of the filing of the variance application.

No special exception may be granted except after notice and hearing as provided by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of the abutting property and property immediately across the street or road from property affected, the board may give such notice by first-class mail rather than by registered or certified mail.

No variance shall be considered except after notice and hearing as required by Code of Virginia, § 15.2-2201. However, when giving any required notice to 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 registered or certified mail.

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 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 proposed within an area of the site or part of the structure for which the variance is required, the approval of an additional variance shall be required.

8.2.3. To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail.

8.2.4. 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 Code of Virginia, § 15.2-2204, the board may interpret the map in such way as to carry out the intent and purpose of this ordinance for the particular section or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.

8.2.5. No provision of this section shall be construed as granting any board the power to rezone property.

8.2.6. To hear and decide applications for special exceptions as may be authorized in this ordinance. The board may impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.

No special exception may be granted except after notice and hearing as provided by Code of Virginia, § 15.2-2204. 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.

Before issuance of a special use permit the board of zoning appeals shall consider the general character of the surrounding neighborhood in order to facilitate the preservation and creation of an attractive and harmonious community. The board of zoning appeals shall also consider the environmental effect on scenic, historic and waterfront areas including the property rights and values of adjoining and nearby property owners.

The board of zoning appeals shall have the authority to establish such conditions as it may deem necessary to assure and protect the health, safety, convenience and welfare of the general public within the district. Conditions may include, but need not be limited to, additional requirements for area, frontage, setback, side and rear yard, lighting, noise and odor control and location of streets including ingress and egress.

The board of zoning appeals may also impose such other conditions relating to the use for which a special use permit is granted as it may deem necessary in the public interest, including time limitations.

The board of zoning appeals shall not extend or renew any special use permit, or any conditional use permit previously granted, without the applicant complying with the procedures as set forth in section 8.4 of this ordinance.

All special use permits granted by the board of zoning appeals shall expire one year after the date of issuance unless construction or the use for which said permit was granted has actually commenced.

The board of zoning appeals may require a guarantee or bond with sufficient surety to ensure that any of the conditions which may be imposed pursuant to this article are being and will continue to be complied with.

8.2.7. To revoke a special exception if the board determines that there has not been compliance with the terms or conditions of the permit. No special exception may be revoked except after notice and hearing as provided by Code of Virginia, § 15.2-2204. 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.

(Readopted and Amended 10-5-2015, Amended 6-6-2016)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2309.

8.3.1. The board of zoning appeals shall adopt such rules and regulations as it may consider necessary.

8.3.2. The meeting of the board shall be held at the call of its chairperson or at such times as a quorum of the board may determine.

8.3.3. The chairperson or, in his/her absence, the acting chairperson may administer oaths and compel the attendance of witnesses.

8.3.4. 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 records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

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

8.3.6. A quorum shall be at least four members.

8.3.7. The board shall act on all matters that are properly before it.

8.3.8.

A.

The non-legal staff of the governing body may have ex parte communications 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.

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

C.

For the purposed 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 Code of Virginia, § 15.2-1542. 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.

This sections hall not apply to cases where an application for a special exception has been filed pursuant to subdivision 6 of Code of Virginia, §15.2-2309.

(Ord. of 4-3-1995; Readopted and Amended 10-5-2015)

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

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

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

(Readopted and Amended 10-5-15)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2311.

8.5.1. Appeals shall be mailed to the board of zoning appeals c/o the zoning administrator, and a copy of the appeal shall be mailed to the secretary of the planning commission. A third copy should be mailed to the individual, official, department or agency concerned, if any.

8.5.2. Appeals and applications for a variance or special exception requiring an advertised public hearing shall be accompanied by payment established by the town council payable to the treasurer.

(Ord. of 11-4-1996; Ord. of 5-1-2000; Amended 1-18-2007; Readopted and Amended 10-5-2015)

The board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties in interest and make its decision within 90 days of the filing of the application or appeal. In exercising its powers the board may reverse or affirm, wholly or partly, or may modify, an order, requirement, decision or determination appealed from. The concurring vote of at least four of the members of the board shall be necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance or to effect any variance from this ordinance. The board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the board and shall be public records. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(Ord. of 4-7-1997; Readopted and Amended 10-5-2015)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2312.

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

8.7.2. Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of zoning appeals and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

8.7.3. The board of zoning appeals shall not be required to return the original papers acted upon by it but it shall be sufficient to return certified or sworn copies thereof or of the portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

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

In the case of any 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 Code of Virginia, § 15.2-2286, 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.

In the case of any 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 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.

In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted application for a special exception, the decision of the board of zoning appeals shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that the board of zoning appeals applied erroneous principles of law, or where the discretion of the board of zoning appeals is involved, the decision of the board of zoning appeals was plainly wrong, was in violation of the purpose and intent of the zoning ordinance and is not fairly debatable.

In the case of an appeal from the board of zoning appeals to the circuit coiurt 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 Vitginia

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

(Readopted and Amended 10-5-2015)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2314.