This ordinance endeavors to create a process by which the Director of Planning/Zoning Administrator, Planning Commission and City Council can address and implement zoning and land use in such a way as to reconcile the desires of the applicant with the health, safety and general welfare interests of the City. However, there may be special and unusual circumstances which arise in the administrative process. Therefore, variances and special exceptions to the application of this ordinance as well as opportunities to appeal decisions related to the application of the zoning ordinance which are outside the purview of the Director of Planning/Zoning Administrator, Planning Commission and City Council.

Variances and special exceptions are distinguished in definition and process from special uses which are considered and permitted by the Planning Commission and City Council. The consideration of and action on such matters shall be undertaken by the Board of Zoning Appeals of the City of Danville (hereinafter referred to as "Board").

The Board may consider and grant a variance to the application of this ordinance which cannot be otherwise granted by the Planning Commission or City Council in situations where due to the characteristics of the property under consideration an unnecessary hardship on the applicant will be created and where the spirit of the ordinance can be otherwise maintained.

The Board may consider and grant a special exception to modify standards and regulations for certain uses allowed within a given district, but which by their nature and design may have an undue impact or be incompatible with other uses of land, when it is judged in the interest of sound development in the City.

The Board may consider and grant an appeal to decisions rendered by the Director of Planning/Zoning Administrator or any other staff member, official, or agency of the City related to the administration and enforcement of this ordinance, provided that any opportunity to appeal such decision to the Planning Commission or City Council shall have been exhausted.

(Ord. No. 2004-02.04, Art. 13, § A, 2-17-04)

1.

There shall be established a Board of Zoning Appeals which shall consist of seven (7) members, each to be a resident of the City and each to be appointed by the Circuit Court of the City of Danville (hereinafter "Circuit Court") for terms of five (5) years, except the original appointments shall be made for such terms that the term of one member shall expire each year.

2.

Members of the Board shall hold no other public office except that one member may be a member of the City's Planning Commission.

3.

A member whose term expires shall continue to serve until a qualified successor is appointed.

4.

Board vacancies shall be filled by the Circuit Court for the unexpired portion of the term.

5.

A member may be removed by the Circuit Court for cause, upon written charges and after a public hearing.

6.

Each member shall receive such compensation as the City Council may authorize for attendance at each regular or called meeting of the Board held at least fifteen (15) days after proper public notice.

7.

The Circuit Court may remove any member of the Board for malfeasance, misfeasance or nonfeasance in office for other just cause upon a hearing held not less than fifteen days from notification of the Board member sought to be removed.

8.

Within the limits of funds appropriated by the City Council via its annual budgeting process, the Board may employ or contract for legal services, technical services, secretaries, clerks and other advisory services.

(Ord. No. 2004-02.04, Art. 13, § B, 2-17-04)

1.

At its first meeting of the year, the Board shall elect one of its members as chairman and one of its members as vice-chairman who shall serve annual terms as such and may succeed themselves. The chairman shall preside at all meetings of the Board and in the chairman's absence the vice-chairman shall preside.

2.

The Board shall appoint a recording secretary whose duty it shall be to keep the minutes and other record of the actions and deliberations of the Board and perform such other ministerial duties as the Board shall direct. A secretary who is not a member of the Board shall not be entitled to vote on matters before the Board.

3.

The recording secretary may receive such compensation as the City Council may authorize for attendance at each regular or called meeting of the Board.

(Ord. No. 2004-02.04, Art. 13, § C, 2-17-04)

1.

The Board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the City and general laws of the state as it may deem necessary in order to carry into effect the provisions of this ordinance, said rules to be in writing and copies available to the public at the office of the Director of Planning/Zoning Administrator and the recording secretary of the Board.

2.

Meetings of the Board shall be held at the call of the chairman and at such other times as the Board may determine. Such chairman, or in the chairman's absence the vice-chairman.

3.

A regular member when he knows he will be absent from a meeting shall notify the chairman twenty-four hours prior to the meeting of such fact.

4.

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

5.

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

6.

A quorum of the Board shall consist of three (3) Board members, one of which shall be either the chairman or the vice-chairman.

7.

The Board shall keep a full public record of its proceedings and other official actions and shall submit a report of its activities to the City Council at least one each year.

8.

The Board may adjourn a regular meeting if all applications or appeals cannot be disposed of in the day set and no further public notice shall be necessary for such an adjourned meeting.

(Ord. No. 2004-02.04, Art. 13, § D, 2-17-04)

The Board of Zoning Appeals shall have the following powers and duties:

1.

Variances. To authorize upon appeal or original application in specific cases a variance from the application of the strict terms of this ordinance, provided that such variance will not be contrary to the public interest, when owing to special conditions a literal enforcement of the provisions of this ordinance will result in unnecessary hardship: provided that the spirit of the ordinance shall be observed and that substantial justice done as hereinafter specified. No variance may be granted except after a public hearing in accordance with Section K. of this article.

2.

Special Exceptions. To hear and decide applications for special exceptions for certain uses, yards and heights as may be specifically authorized in this article. The Board may impose such conditions relating to the use, yard or height 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 in compliance. No special exception may be granted except after a public hearing in accordance with this article. Applications for special exceptions are distinguished from special use permits which are reviewed and considered by the Planning Commission.

3.

Appeals. To hear and decide appeals from any order, requirement, decision or determination made by the Director of Planning/Zoning Administrator or any administrative officer of the City in the administration or enforcement of this ordinance. No such appeal shall be heard except after a public hearing in accordance with this ordinance.

4.

Zoning Map Interpretation. To hear and decide appeals to the interpretation of the Official Zoning Map by the Director of Planning/Zoning Administrator, Planning Commission or City Council where there is an unresolved disagreement as to the location of a district boundary, subject to notice of adjoining property owners affected by any such interpretation and after a public hearing thereon.

5.

No Power to Rezone. No provision of this section shall be construed as granting any Board the power to rezone property.

6.

Revocation of Permit. 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 a public hearing in accordance with Section J. of this article.

(Ord. No. 2004-02.04, Art. 13, § E, 2-17-04)

1.

Notwithstanding any other provision of law, general or special, to grant upon appeal or original application in specific cases a variance as defined in Section 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 his application meets the standard for a variance as defined in Section 15.2-2201 of the Code of Virginia and the criteria set out in this section.

2.

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, and

a.

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;

b.

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

c.

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;

d.

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

e.

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 Section 15.2-2309 of the Code of Virginia or the process for modification of a zoning ordinance pursuant to subdivision A4 of Section 15.2-2286 of the Code of Virginia at the time of the filing of the variance application.

3.

No variance shall be considered except after notice and hearing as required by Section 15.2-2204 of the Code of Virginia. 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.

4.

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 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.

(Ord. No. 2004-02.04, Art. 13, § F, 2-17-04; Ord. No. 2015-09.09, 9-15-15)

1.

The Board shall have the power in specific cases to grant a special exception for and apply standards and conditions to certain land use, lot area, and yard exceptions from the strict application of the terms of this ordinance under the following provisions:

a.

To provide for adjustments in the relative locations of uses and buildings of the same or different classifications;

b.

To promote the usefulness of these regulations as instruments for fact finding, interpretations, application and adjustment; and

c.

To supply the necessary elasticity to efficiently administer these regulations in the interest of sound land use.

2.

In considering an application for a special exception, the Board shall give due regard to the specific guidelines and standards of this ordinance, and to the nature and conditions of adjacent uses and structures as well as the probable effect upon them of the proposed special exception.

3.

The Board shall take into account the special and unique characteristics, design, location, construction, method of operations, effect on traffic conditions or any other aspects of the particular use or structure, that may be proposed by the applicant.

4.

If the Board finds that the proposed establishment or use will not adversely affect the health, safety or welfare of persons residing or working on the premises or in the neighborhood, will not unreasonably impair an adequate supply of light and air to adjacent property, nor increase congestion in the streets, nor increase public danger from fire or otherwise unreasonably affect public safety, nor impair the character of the district or adjacent districts, nor be incompatible with the general plans and objectives of the City's Comprehensive Plan, nor be likely to reduce or impair the value of buildings or property in surrounding areas, but that such establishment or use will be in substantial accordance with the general purpose and objectives of this ordinance, the Board shall grant the exception and authorize the issuance of a special exception permit.

5.

In those instances where the Board finds that the proposed use may be likely to have an adverse effect as above, the Board shall determine whether such effect can be avoided by the imposition of any special requirements or conditions with respect to location, design, construction equipment, maintenance, or operation, in addition to those expressly stipulated in this ordinance.

6.

Special exception uses: The following buildings and uses are permitted as special exceptions under the terms and conditions specified hereinabove:

a.

A garage or other building accessory to a single family dwelling which building does not comply with the regulations of the district in which it is located.

b.

Extension of an existing nonconforming use in a building so as to increase floor area by not more than twenty-five (25) percent, provided that no new non-conforming use may be established.

c.

Restoration, repair or replacement of a nonconforming use damaged by more than fifty (50) percent of the fair market value of the building as determined on the date immediately prior to its damage.

d.

Temporary uses and structures in any zoning district not specifically listed in the regulations and determined by the Board to be in the public interest for the district in which located; provided that such uses be of a temporary nature and do not involve the erection of substantial buildings.

e.

Such use or structures shall be authorized by the issuance of a temporary and revocable permit for not more than a twenty-four month period subject to such conditions as will safeguard the public health, safety and welfare.

7.

Special exceptions for yards: The following yard conditions are permitted as special exceptions under the terms and conditions specified hereinabove:

a.

An exception in the yard regulation on a lot where on the adjacent lot there is a front, side, or rear yard that does not conform with such yard regulations in a way similar to the exception applied for, provided that the granting of such an exception will not cause the yard or use to encroach upon an existing or proposed right-of-way or dedicated public easement.

b.

An exception in the depth or a rear yard on a lot, in a block where there are nonconforming rear yards.

c.

An exception to a yard where there are irregularities in depths of existing front yards on a street frontage on the side of a street between two intersection streets, so that any one of the existing depths shall, for a building hereafter constructed or extended be the required minimum front yard depth.

d.

Construction of a single family dwelling with reduced yard spaces on a legal nonconforming lot.

8.

After the Board has approved a special exception, the special exception so approved or granted shall lapse after a one year period or such longer period of time as may be approved for "good cause" by the Board, provided that no site plan or subdivision plat has been approved by the City and that no substantial construction or change of use has taken place in accordance with the plans for which such variance was granted.

9.

The procedure for amendment of a special exception already approved, or the request for a change of conditions attached to an approval, shall be the same as for the new application, except that, where the Director of Planning/Zoning Administrator determines the change to be minor relative to the original approval, the administrator may transmit the same to the Board with the original record without requiring that a new application be filed.

(Ord. No. 2004-02.04, Art. 13, § G, 2-17-04)

The Board may attach conditions to the granting of a variance or to the approval of a special exceptions. In establishing adequate and necessary conditions, the Board may consider the following elements with respect to potential inclusion, modification, exclusion or limitation:

1.

Placement of signs and advertising structures.

2.

Signs: size, number, type, color, location or illumination.

3.

Outdoor lighting: illumination intensity, direction, location, shielding.

4.

Parking and loading: location, size, number.

5.

Cleaning and painting.

6.

Roof type.

7.

Construction materials.

8.

Construction phasing.

9.

Exits, entrances, doors and windows.

10.

Landscaping and screening.

11.

Paving and site improvements.

12.

Operating times.

13.

Architectural facades.

14.

Structural changes.

15.

Smoke, dust, gas, noise and vibrations.

16.

Termination of use due to use lapse or other conditions.

17.

Open space requirements.

18.

Adequate public facilities and supporting infrastructure.

19.

Adequate storm drainage and stormwater management.

20.

Adequate environmental protection measures.

21.

Other elements consistent with the Comprehensive Plan.

(Ord. No. 2004-02.04, Art. 13, § H, 2-17-04)

1.

Application for Special Exceptions and Variances.

a.

Applications to the Board of Zoning Appeals for special exceptions and variances in which the Board has original jurisdiction under this ordinance may be made by any property owner, tenant, government official, department, commission, board or agency. Such application shall be made to the Board on standard application forms which shall be provided for the purpose in accordance with rules adopted by the Board.

b.

All information, including documentation and rational for the grounds for the subject application as well as plats, maps, site plans and other graphic exhibits required by the standard application form or the Director of Planning/Zoning Administrator, or other information as required by the Board in order that it might be fully informed, shall be furnished by the applicant. The application shall include a copy of the decision or determination on which the application is based.

c.

It shall be the responsibility of the recording secretary of the Board to place the matter on the Board meeting agenda.

d.

The Director of Planning/Zoning Administrator shall also transmit a copy of the application to the Planning Commission of every appeal and application for variance made to the Board and shall notify the Commission of the scheduled date of hearing thereon. The Planning Commission may send a recommendation to the Board or appear as a party at the hearing.

e.

If a request for a variance or special exception has been denied by the Board, a request in substantially the same form shall not be considered by the Board within one (1) year of the date of denial.

f.

The procedure for amendment of a special exception or variance already approved, or a request for a change of conditions attached to an approval, shall be the same as for a new application except that where the Director of Planning/Zoning Administrator determines the change to be minor relative to the original approval, the Director of Planning/Zoning Administrator may transmit the same to the Board with the original record without requiring that a new application be filed.

2.

Application for Appeals.

a.

An appeal may be taken to the Board of Zoning Appeals by any person aggrieved or by any officer, department, commission, board or agency of the City affected by any decision of the Director of Planning/Zoning Administrator or from any order, requirement, decision or determination made by any other officer in the administration or enforcement of this ordinance.

b.

All information, including documentation and rational for the grounds for the subject appeal as well as plats, maps, site plans and other graphic exhibits or information as required by the Board in order that it might be fully informed, shall be furnished by the applicant. The application shall include a copy of the decision or determination on which the application is based.

c.

Any written notice of a zoning violation or a written order of the Director of Planning/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 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within thirty (30) days. The appeal period shall not commence until the statement is given to the recipient.

d.

An appeal shall be taken within thirty (30) days after the decision appealed by filing with the administrator, and with the Board, a notice of appeal specifying the grounds thereof. The Director of Planning/Zoning Administrator shall forthwith transmit to the recording secretary of the Board all the papers constituting the record upon which the action appealed was taken. An appeal stays all proceedings in the furtherance of the action appealed from unless the administrator certifies to the Board, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or a Court of record, on application and on notice to the Director of Planning/Zoning Administrator for good cause shown.

e.

The Director of Planning/Zoning Administrator shall also transmit a copy of the application to the Planning Commission of every appeal made to the Board and shall notify the Commission of the scheduled date of hearing thereon. The Planning Commission may send a recommendation to the Board or appear as a party at the hearing.

3.

Hearing and Decision.

a.

The Board shall fix a reasonable time for a public hearing on an application or appeal. The Board shall decide upon the application or appeal within ninety (90) days of its filing.

b.

Upon the hearing any party may appear in person, or by agent, or by attorney, before the Board. In exercising its powers, the Board may, in conformity with the provisions of this ordinance, reverse or affirm, wholly or partly, or may modify, any order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

c.

The concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the administrative officer 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 article.

4.

Proceedings to Prevent Construction of Building in Violation of Zoning Ordinance.

a.

In any case where the Director of Planning/Zoning Administrator has certified conformity with the provisions of this ordinance and a building permit has been issued and 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, suit may be filed within fifteen (15) days after the start of construction by a person who had no actual notice of the issuance of such permit.

b.

The Circuit Court may hear and determine issues raised in the litigation even though no appeal was taken from the decision of the Director of Planning/Zoning Administrator to the Board of Zoning Appeals.

5.

Filing Fees.

a.

All persons, firms or corporations appealing to the Board of Zoning Appeals necessitating the publication of notices in the newspaper shall be required to pay, at the time the application is submitted, a fee as established by City Council for expenses relative thereto.

b.

All persons, firms or corporation applying for variances under the provisions of this ordinance or applying for an amendment or a variance already approved necessitating the publication of notices in the newspaper shall be required to pay, at the time the application is submitted, a fee as established by City Council for expenses relative thereto.

c.

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

(Ord. No. 2004-02.04, Art. 13, § I, 2-17-04)

Any person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals, or any taxpayer or any administrative officer, official, department, commission, board, or agency of the City, may present to the Circuit Court of the City of Danville a petition specifying the ground on which aggrieved within thirty (30) days after the filing of the decision in the office of the Board. The appeals proceedings before the Circuit Court shall be in accordance with applicable state law as provided for in Article 7, Chapter 22, Title 15.2 of the Code of Virginia.

(Ord. No. 2004-02.04, Art. 13, § J, 2-17-04)

1.

No variance, special exception or appeal may be authorized or otherwise acted upon except after notice and hearing as required by Section 15.2-2204 of the Code of Virginia.

2.

As is stated in 15.2-2204 of the Code of Virginia, each of the planning actions listed hereinabove need not be advertised in full, but may be advertised by reference. Every such advertisement shall contain a summary of the proposed action and hearing date.

(Ord. No. 2004-02.04, Art. 13, § K, 2-17-04)