The purpose of this subchapter is to ensure that the processes by which the zoning ordinance is effectuated have been clearly identified and delineated. This subchapter shall outline the duties and powers of the Board of Zoning Appeals, the zoning permit process, the appeals process, and other enforcement related provisions.

(Ord. 301, passed 8-18-2022)

   Council shall appoint a Zoning Officer, who shall have the authority to administer and enforce this code. Duties of the Zoning Officer include but are not limited to the following:

   (A)   Keep a record of plans and applications for permits and all permits issued with notations as to special conditions. All records shall be open for public inspection.

   (B)   Review permit applications and notifications as necessary to determine compliance with the provisions of this code. No permit shall be issued unless it conforms to all applicable ordinances, statutes, and regulations.

   (C)   All questions of interpretation and enforcement shall be initially presented and determined by the Zoning Officer. Subsequent recourse shall be, in order, to the Board of Zoning Appeals and the courts.

   (D)   Upon finding that provisions of this code have been violated, notify the person or party in writing responsible for the violation(s), order the action necessary to correct the violation, and if correction is not completed within the time specified in the notice of violation, begin legal actions necessary to compel correction of the violation.

   (E)   Maintain official zoning maps.

   (F)   Provide information on planning and zoning upon request by citizens and public agencies.

   (G)   Submit at least annually, a written report on all permits issued and notice and orders issued.

   (H)   Perform additional tasks and duties as may be prescribed by the City Council.

(Ord. 301, passed 8-18-2022)

   (A)   No building or structure shall be constructed, erected, expanded, enlarged, or otherwise structurally altered until a zoning permit has been issued by the Zoning Officer.

   (B)   Applications for a zoning permit shall be made available at City Hall.

   (C)   All applications for zoning permits shall be made in writing by the owner or authorized agent and shall be filed with the Zoning Officer. The application shall:

      (1)   Include a statement as to the proposed use of the structure or land.

      (2)   Be accompanied by a plan, drawn to scale, showing the dimensions of the lot to be built upon, the exact size and location of the building to be constructed upon the lot, and accessory buildings to be erected, and such other information as may be deemed necessary by the Zoning Officer in determining and provided for the enforcement of this chapter.

   (D)   If the zoning permit application is approved by the Zoning Officer, then an appropriate placard issued by the city and containing the approval of the Zoning Officer, shall be returned together with the zoning permit to the applicant, following payment of the appropriate fee as determined by City Council. The placard shall be posted by the applicant in a conspicuous place upon the building or construction site prior to the commencement of any construction and shall remain upon the building or construction site during all construction operations.

   (E)   A zoning permit does not alleviate the necessity to obtain a building permit as required by the city.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   Fees to be charged for the issuance of a zoning permit shall be determined by a schedule maintained at City Hall.

(Ord. 301, passed 8-18-2022)

   The City Council may amend this chapter. Before amending this chapter, the City Council with the advice of the Planning Commission, must find that the amendment is consistent with the adopted comprehensive plan. If the amendment is inconsistent, then the governing body with the advice of the Planning Commission, must find that there have been major changes of an economic, physical, or social nature within the area involved which were not anticipated when the comprehensive plan was adopted and those changes have substantially altered the basic characteristics of the area.

(Ord. 301, passed 8-18-2022)

   (A)   A Board of Zoning Appeals is hereby established with membership and appointment provided in accordance with the West Virginia Code.

   (B)   (1)   The Board shall consist of five members appointed by City Council. The members of the Board shall be residents of the city for at least three years preceding his or her appointment. Members cannot be a member of the Planning Commission and cannot hold any other elective or appointive office in municipal government. Upon creation of the Board of Zoning Appeals, the members shall be appointed for the following terms: one for a term of one year; two for a term of two years; and two for a term of three years. The terms shall expire on the first day of January of the first, second, and third year, respectively, following their appointment. Thereafter, members shall serve three-year terms. If a vacancy occurs, Council shall appoint a member for the unexpired term. A Board member may be removed only for official misconduct or neglect of duty by action of Council upon presentation of written charges.

      (2)   The governing body may appoint up to three additional members to serve as alternate members of the Board of Zoning Appeals. The alternate members must meet the same eligibility requirements as set out in division (A) above. The term for an alternate member is three years. The governing body may appoint alternate members on a staggered term schedule.

   (C)   An alternate member shall serve on the Board when one of the regular members is unable to serve. The alternate member shall serve until a final determination is made in the matter to which the alternate member was initially called on to serve during the alternate member’s term.

   (D)   The Board of Zoning Appeals shall establish written rules and procedures for designating an alternate member. An alternate member shall have the same powers and duties of a regular Board member.

   (E)   The members and alternate members of the Board of Zoning Appeals shall serve without compensation but shall be entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their official duties.

   (F)   At the first regular meeting each year, the Board of Zoning Appeals shall elect a chairperson and vice chairperson from its members. The vice chairperson shall have the power and authority to act as chairperson during the absence or disability of the chairperson.

   (G)   The Board of Zoning Appeals shall meet semi-annually and may meet more frequently at the written request of the chairperson or by two or more members. Notice for a special meeting must be in writing; include the date, time, and place of the special meeting; and be sent to all members at least two days before the special meeting. Written notice of a special meeting is not required if the date, time, and place of the special meeting were set in a regular meeting. The Board of Zoning Appeals must have a quorum to conduct a meeting. A majority of the members of the Board of Zoning Appeals is a quorum. No action of a Board is official unless authorized by a majority of the members present at a regular or properly called special meeting.

   (H)   The Board of Zoning Appeals has the following duties:

      (1)   Hear, review, and determine appeals from an order, requirement, decision, or determination made by an administrative official or board charged with the enforcement of this code or rule and regulation adopted pursuant thereto;

      (2)   Authorize exceptions to the district rules and regulations only in the classes of cases or in particular situations, as specified in this code;

      (3)   Hear and decide conditional uses of this code upon which the Board is required to act;

      (4)   Authorize, upon appeal in specific cases, a variance to this code;

      (5)   Reverse, affirm, or modify the order, requirement, decision, or determination appealed from and have all the powers and authority of the official or Board from which the appeal was taken;

      (6)   Adopt rules and regulations concerning:

         (a)   The filing of appeals, including the process and forms for the appeal;

         (b)   Applications for variances and conditional uses;

         (c)   The giving of notice; and

         (d)   The conduct of hearings necessary to carry out the Board’s duties under the terms of this chapter;

      (7)   Keep minutes of its proceedings;

      (8)   Keep an accurate and complete audio record of all of the Board’s proceedings and official actions and keep the audio record in a safe manner, which audio record is accessible within 24 hours of demand, for three years;

      (9)   Record the vote on all actions taken;

      (10)   Take responsibility for the custody and preservation of all papers and documents of the Board. All minutes and records shall be filed in the office of the Board and shall be public records;

      (11)   With consent from the governing body, hire employees necessary to carry out the duties and responsibilities of the Board; provided, that the governing body sets the salaries; and

      (12)   Supervise the fiscal affairs and responsibilities of the Board.

(Ord. 301, passed 8-18-2022; Ord. 325, passed 3-21-2024)

   An appeal from any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of this code, or rule and regulation adopted pursuant to this code, shall be filed by an aggrieved person with the Board of Zoning Appeals. The appeal shall:

   (A)   Specify the grounds of the appeal;

   (B)   Be filed within 30 days of the original order, requirement, decision, or determination made by an administrative official or board charged with the enforcement of this code; and

   (C)   Be on a form prescribed by the Board.

   (D)   Upon request of the Board of Zoning Appeals, the administrative official or board shall transmit all documents, plans, and papers constituting the record of the action from which the appeal was taken.

(Ord. 301, passed 8-18-2022)

   (A)   Within ten days of receipt of the appeal by the Board of Zoning Appeals, the Board shall set a time for the hearing of the appeal and give notice. The hearing on the appeal must be held within 45 days of receipt of the appeal by the Board.

   (B)   At least 15 days prior to the date set for the hearing on the appeal, the Board of Zoning Appeals shall publish a notice of the date, time, and place of the hearing on the appeal as a Class I legal advertisement in compliance with the provisions of the West Virginia Code, and written notice shall be given to the interested parties. The publication area shall be the area covered in the appeal.

   (C)   The Board of Zoning Appeals may require the party taking the appeal to pay for the cost of public notice and written notice to interested parties.

   (D)   At the hearing, any party may appear in person, by agent, or by an attorney licensed to practice in this state.

   (E)   Every decision by the board must be in writing and state findings of fact and conclusions of law on which the Board based its decision. If the Board fails to provide findings of fact and conclusions of law adequate for decision by the Circuit Court and as a result of the failure, the Circuit Court returns an appealed matter to the Board and dismisses jurisdiction over an applicant’s appeal without deciding the matter, whether the court returns the matter with or without restrictions, the Board shall pay any additional costs for court filing fees, service of process, and reasonable attorneys’ fees required to permit the person appealing the Board’s decision to return the matter to the Circuit Court for completion of the appeal.

   (F)   The written decision by the Board shall be rendered within 30 days after the hearing.

   (G)   If the Board fails to render a written decision within 30 days after the hearing, then any party may pursue additional legal remedies to obtain a decision, including, but not limited to, seeking a writ of mandamus.

   (H)   When an appeal has been filed with the Board of Zoning Appeals, all proceedings and work on the premises in question shall be stayed, except as provided below:

      (1)   If the official or board from where the appeal was taken certifies in writing to the Board of Zoning Appeals that a stay would cause imminent peril to life or property;

      (2)   Upon further administrative proceedings, including, but not limited to, submissions to and reviews by the staff or any administrative body; or

      (3)   Upon engineering or architectural work that does not disturb the real estate beyond what is necessary to complete engineering, survey work, or other tests.

   (J)   Nothing in this section prevents a party from obtaining an injunction.

(Ord. 301, passed 8-18-2022)

   (B)   The Board of Zoning Appeals shall grant a variance to this code if it finds that the variance:

      (1)   Will not adversely affect the public health, safety, or welfare, or the rights of adjacent property owners or residents;

      (2)   Arises from special conditions or attributes which pertain to the property for which a variance is sought and which were not created by the person seeking the variance;

      (3)   Would eliminate an unnecessary hardship and permit a reasonable use of the land; and

      (4)   Will allow the intent of this code to be observed and substantial justice done.

   (C)   The Board of Zoning Appeals shall not grant a variance to allow the establishment of a use in a zoning district when such use is prohibited by the provisions of this code.

(Ord. 301, passed 8-18-2022)

   (A)   The conditional use permit procedure is intended to provide the Board of Zoning Appeals with review of requests to establish uses that may be appropriate in a zoning district, but that may have the potential for negative impacts on the health, safety, and welfare of the public. The conditional use standards provided in this subchapter are intended to avoid, minimize, or mitigate adverse impacts conditional uses may have on the health, safety, and welfare of the public.

   (B)   All applications for a conditional use permit shall demonstrate that:

      (1)   The use is consistent with the policies and intent of the corresponding purpose for the zoning district in which it lies and the city’s comprehensive plan.

      (2)   The use is physically and operationally compatible with the surrounding neighborhood and surrounding existing uses.

      (3)   The use will be designed, constructed, operated, and maintained so that it does not cause substantial injury to adjoining property.

      (4)   The use will be adequately served by public facilities and services which include but are not limited to water, sewer, electric, schools, streets, fire and police protection, storm drainage, public transit, and public parks and trails.

      (5)   Adequate off-street parking will be provided on the same property as the proposed conditional use as well as adequate ingress and egress to the property in compliance with the standards set forth in this code.

      (6)   Any storage of hazardous material will comply with all state, federal, and local regulations, and all such material will be listed and made known to the Chief of the City of Elkins Fire Department.

      (7)   The use will not endanger public health or safety or constitute a public nuisance.

      (8)   The use will not conduct operations in connection with the use which are offensive, dangerous, or destructive of the environment.

   (C)   Conditions may be imposed on a proposed conditional use to ensure that potential significant adverse impacts on surrounding uses will be reduced to the maximum extent feasible, including but not limited to conditions or measures addressing:

      (1)   Location on a site of activities that generate potential adverse impacts such as noise and glare;

      (2)   Hours of operation and deliveries;

      (3)   Location of loading space and delivery zones;

      (4)   Light intensity and hours of full illumination;

      (5)   Placement of outdoor vending machines;

      (6)   Loitering;

      (7)   Litter control;

      (8)   Placement of trash receptacles;

      (9)   On-site parking configuration and facilities;

      (10)   On-site circulation; and

      (11)   Privacy concerns of adjacent uses.

   (D)   Conditional use permit decisions are made by the Board of Zoning Appeals (BZA). In considering the proposed conditional use, the BZA must determine whether the applicable general standards under this subchapter have been met. The BZA may impose additional conditions and safeguards deemed necessary.

   (E)   The breach of any condition, safeguard, or requirement shall be considered a violation of the conditional use permit approval. If the applicant fails to comply with any of the applicable requirements of this chapter, the BZA shall have the authority to revoke any conditional use permit after providing notice to the property owner and after public hearing is held in the same manner as the original approval.

   (G)   No application which has been denied wholly or in part by the Board of Zoning Appeals shall be resubmitted for a period of one year from the date of the last denial, unless permitted by the BZA after demonstration by the applicant of a change of circumstances from the previous application.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999