Edinburg City Zoning Code
ARTICLE VII
Appeals
§ 175-48 Board of Zoning Appeals.
A.
A Board consisting of five Town residents shall be appointed by the Circuit Court of the County. The Board shall serve without pay other than for traveling expenses, and members shall be removable for malfeasance, misfeasance or nonfeasance upon written charges and after public hearing. Appointments for vacancies occurring otherwise than by expiration of term shall in all cases be for the unexpired term.
B.
The term of office shall be for five years, except that of the first five members appointed, one shall serve for five years, one for four years, one for three years, one for two years and one for one year. One of the five appointed members may be an active member of the Planning Commission.
C.
Members may be removed for cause by the appointing authority upon written charges and after public hearing.
D.
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.
E.
The Board shall choose annually, from its own membership, its own Chairman, Vice Chairman, who shall act in the absence of the Chairman, and Secretary.
§ 175-49 Powers of Board of Zoning Appeals.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
The powers of the Board of Zoning Appeals shall be as follows:
A.
To hear and decide appeals from any order, requirement, decision, or determination made by an administrative officer in the administration or enforcement of this article or of any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the Board's judgment of whether the administrative officer was correct. The determination of the administrative officer shall be presumed to be correct. At a 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.
B.
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, as amended, 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 § 15.2-2201 of the Code of Virginia, as amended, and the criteria set out in this section.
(1)
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 granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability; and the property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance;
(2)
The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area;
(3)
The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance;
(4)
The granting of the variance does not result in a use that is not otherwise permitted on such property or a change in the zoning classification of the property and 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 Subsection 6 of § 15.2-2309 of the Code of Virginia, as amended, or the process for modification of a zoning ordinance pursuant to Subsection A(4) of § 15.2-2286 of the Code of Virginia, as amended, at the time of the filing of the variance application;
(5)
Any variance granted to provide a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability 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. § 12131 et seq.), as applicable. If a request for a reasonable modification is made to the Town and is appropriate under the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990 (U.S.C. § 12131 et seq.), as applicable, such request shall be granted by the Town unless a variance from the Board of Zoning Appeals under this section is required in order for such request to be granted;
(6)
No variance shall be considered except after notice and hearing as required by § 15.2-2204 of the Code of Virginia, as amended. 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;
(7)
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.
C.
To hear and decide appeals from the decision of the Zoning Administrator after notice and hearing as provided by § 15.2-2204 of the Code of Virginia, as amended. 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.
D.
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, as amended, the Board may interpret the map in such way as to carry out the intent and purpose of the 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 form 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; and no provisions of this section shall be construed as granting the Board the power to rezone property or to base Board decisions on the merits of the purpose and intent of local ordinances duly adopted by the Town.
E.
The Board by resolution may fix a schedule of regular meetings, and may also fix the day or days to which any meeting shall be continued if the Chairman, or Vice Chairman if the Chairman is unable to act, finds and declares that weather or other conditions are such that it is hazardous for members to attend the meeting. Such finding shall be communicated to the members and the press as promptly as possible. All hearings and other matters previously advertised for such meeting in accordance with § 15.2-2312 of the Code of Virginia, as amended, shall be conducted at the continued meeting and no further advertisement is required.
§ 175-50 Rules and regulations.
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 time 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.
§ 175-51 Appeal of decision of Zoning Administrator.
An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the county or municipality affected by any decision of the Zoning Administrator. Such 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 Administrator shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. 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.
§ 175-52 Appeal procedure.
Appeals shall be mailed to the Board of Zoning Appeals care of the Zoning Administrator, and a copy of the appeal shall be mailed to the Secretary of the Planning Commission. A third copy shall be mailed to the individual, official, department or agency concerned, if any.
§ 175-53 Public hearing.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A.
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 decide the same within 90 days.
B.
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.
§ 175-54 Appeal from decision of Board of Zoning Appeals.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A.
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 file with the Clerk of the Circuit Court for the County a petition that shall be styled "In Re: date Decision of the Board of Zoning Appeals of the Town of Edinburg" specifying the grounds on which aggrieved within 30 days after final decision 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 therein the time within which a return thereto must be made and served upon the Secretary of the Board of Zoning Appeals or, if no Secretary exists, the Chair of the Board of Zoning Appeals, which shall not be less than 10 days and may be extended by the Court. Once the writ of certiorari is served, the Board of Zoning Appeals shall have 21 days or as ordered by the Court to respond. 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.
Any review of a decision of the Board shall not be considered an action against the Board, and the Board shall not be a party to the proceedings; however, the Board shall participate in the proceedings to the extent required by this section. The governing body, the landowner, and the applicant before the Board of Zoning Appeals shall be necessary parties to the proceedings in the Circuit Court. The Court may permit intervention by any other person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals.
D.
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. The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
E.
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, 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 Appeals erred in its decision. Any party may introduce evidence in the proceedings in the Court. The Court shall hear any arguments on questions of law de novo.
F.
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.
G.
In the case of an appeal from the Board of Zoning Appeals to the Circuit Court of a decision of the Board, any party may introduce evidence in the proceedings in the Court in accordance with the Rules of Evidence of the Supreme Court of Virginia.
H.
Courts shall not be allowed against the Town or the governing body, unless it shall appear to the Court that the Town or the governing body 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 the return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the Town or the governing body may request that the Court hear the matter on the question of whether the appeal was frivolous.