(a)

A board of zoning appeals consisting of five members shall be appointed by the circuit court of the county. The board shall be paid such compensation as may be set from time to time and authorized by resolution of the Board of Supervisors of Cumberland County, Virginia. Any board member or alternate 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. The secretary of the board shall notify the court at least 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. All members shall be residents of Cumberland County, Virginia.

(b)

The members shall serve for five-year terms and shall hold no other public office in the county except that one may be a member of the local planning commission.

(c)

Members may be reappointed to succeed themselves. A member whose term expires shall continue to serve until his successor is appointed and qualifies.

(d)

The board shall chose annually its own chairman and vice-chairman, who shall act in the absence of the chairman. With the exception of its secretary and the alternates, the board shall elect from its own membership a chairman and vice chairman, who shall act in the absence of the chairman. The chairman, vice chairman and secretary shall serve annual terms as such and may succeed themselves. The board may elect as its secretary either one of its members or a qualified individual who is not a member of the board, excluding the alternate members. A secretary who is not a member of the board shall not be entitled to vote on matters before the board.

(e)

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. The board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of Cumberland County, Virginia, and general laws of the Commonwealth. The board shall keep a full public record of its proceedings and shall submit a report of its activities to the board of supervisors at least once each year.

(f)

Members of the board of zoning appeals shall be subject to the applicable requirements of Title 2.2, "Administration of Government," Chapter 31, "State and Local Government Conflict of Interests Act" (Va. Code § 2.2-3100 et seq.).

(Code 1990, § 14-75; Ord. of 11-13-1996; Ord. of 3-12-2003(2); Ord. of 7-11-2006)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2308.

(a)

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

(1)

To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of Code of Virginia, § 15.2-2280 et seq., or of this chapter.

(2)

To authorize upon appeal or original application in specific cases such variance from the terms of this chapter as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship; provided that the spirit of this chapter shall be observed and substantial justice done, as follows: When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property on July 9, 1990, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of the piece of property, or of the condition, situation or development of immediately adjacent property, the strict application of the terms of this chapter would effectively prohibit or unreasonably restrict the utilization of the property or where the board is satisfied, upon the evidence heard by it, that the granting of the variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of this chapter. No such variance shall be authorized by the board unless it finds:

a.

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

b.

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

c.

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

(b)

No variance shall be authorized except after notice and hearing as required 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.

(c)

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

(d)

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

(Code 1990, § 14-76)

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

(a)

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

(b)

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

(c)

The chairman, or in his absence, the vice-chairman, may administer oaths and compel the attendance of witnesses.

(d)

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.

(e)

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

(f)

A quorum shall be at least three members.

(g)

A favorable vote of three members of the board shall be necessary to reverse any order, requirement, decision or determination of any administrative official or to decide in favor of the applicant on any matter upon which the board is required to pass.

(Code 1990, § 14-77; Ord. of 11-13-1996; Ord. No. 08-02, § 8., 5-13-2008(2))

(a)

An appeal to the board of zoning appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the county 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 Code of Virginia, § 15.2-2280 et seq., or this chapter. 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 of appeal. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

(b)

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

(c)

In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by 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 county attorney, modification is required to correct clerical or other nondiscretionary errors.

(Code 1990, § 14-78)

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

(a)

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

(b)

Appeals requiring an advertised public hearing shall be accompanied by a certified check for $20.00 payable to the treasurer.

(Code 1990, § 14-79)

The board of zoning appeals shall fix a reasonable time for the hearing of an application or appeal, give public notice of the hearing 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 a majority of the membership 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 chapter or to effect any variance from this chapter. 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.

(Code 1990, § 14-80; Ord. of 11-13-1996)

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

(a)

Any 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 county 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.

(b)

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

(c)

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

(d)

If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take evidence as it may direct and report the evidence to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(e)

Costs shall not be allowed against the board unless it shall appear to the court that it acted in bad faith or with malice in making the decision appealed from. If the decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person 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.

(Code 1990, § 14-81)

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