(a)

This Ordinance and Zoning Map shall be administered, interpreted, and enforced by the Zoning Administrator (Administrator), who shall be appointed by the Board of Supervisors. The Administrator shall serve at the pleasure of the Board of Supervisors and shall have such duties as are conferred on them by this Ordinance and the Code of Virginia, § 15.2-2286(4). The Zoning Administrator may also hold another office in the County.

(1)

The Administrator shall interpret this Ordinance based upon the following criteria:

a.

Provisions shall be considered the minimum required to promote the public health, safety, convenience and general welfare;

b.

Unless otherwise specified, the standards of this Ordinance are the minimum required;

c.

When regulations of this Ordinance conflict with each other, other chapters of the county code, or state or federal law, the more restrictive regulations or standards shall govern;

d.

This Ordinance does not abolish easements, covenants or other private agreements, however, where this Ordinance's requirements are more restrictive or impose higher standards, this Ordinance's requirements shall govern;

e.

A building, structure, or use which was not legally existing on November 10, 2022 shall not be made lawful solely by adoption of this Ordinance;

f.

Where this Ordinance's requirements are vague or unclear, the Zoning Administrator shall be responsible for their interpretation; and

g.

Conditions imposed or accepted as part of a zoning approval prior to November 10, 2022 shall remain in effect. However, if there is a conflict between conditions imposed through those land use decisions and this Ordinance, the conditions shall apply. If there is no condition that addresses a specific use or development standard of this Ordinance, this Ordinance's requirements shall govern.

(2)

The Administrator, in accordance with the Code of Virginia, § 15.2-2299, may administer and enforce conditions attached to a rezoning or amendment to the Zoning Map.

(b)

The Subdivision Agent (Agent) shall be appointed by the Board of Supervisors to administer and enforce the Subdivision Article (Article IX) and shall serve at the pleasure of the Board of Supervisors. The Agent may call for opinions or decisions, either verbal or written, from other departments, state agencies, or the Planning Commission in considering details of any submitted plat.

(c)

The Administrator/Agent may designate a Deputy Administrator/Agent or other designee to assist in these duties.

(d)

The Administrator must provide written notice to the owner, when receiving a request that is not from the owner or agent of the owner, for a written order, requirement, decision, or determination. In accordance with the Code of Virginia, § 15.2-2204(H), the owner must receive the notice within 10 days receipt of said request.

(e)

In addition to the regulations contained herein, the Administrator and Agent may, from time to time, establish any reasonable additional administrative procedures deemed necessary for the proper administration of this Ordinance.

(f)

The provisions of this Ordinance shall not impair a vested right of a property owner. The Zoning Administrator shall be authorized to make determinations on whether a property owner's rights are deemed vested in a land use. The Subdivision Agent shall be authorized to make determinations on whether a property owner's rights are deemed vested in a division. Vested rights determinations shall be made in accordance with the Code of Virginia, § 15.2-2307.

The Planning Commission shall be created, organized, removed, and compensated pursuant to the Code of Virginia, §§ 15.2-2210 and 15.2-2212.

Pursuant to the Code of Virginia, §§ 15.2-2221 and 15.2-2230, the Planning Commission shall:

(1)

Exercise general supervision of, and make regulations for, the administration of its affairs;

(2)

Prescribe rules pertaining to its investigations and hearings;

(3)

Supervise its fiscal affairs and responsibilities, under rules and regulations as prescribed by the governing body;

(4)

Keep a complete record of its proceedings; and be responsible for the custody and preservation of its papers and documents;

(5)

Make recommendations and an annual report to the governing body concerning the operation of the commission and the status of planning within its jurisdiction;

(6)

Prepare, publish and distribute reports, ordinances and other material relating to its activities;

(7)

Prepare and submit an annual budget in the manner prescribed by the governing body of the county or municipality;

(8)

If deemed advisable, establish an advisory committee or committees; and

(9)

Review the Comprehensive Plan at least once every five years to determine if it is advisable to amend the plan.

(a)

The Planning Commission shall conduct meetings pursuant to the Code of Virginia, §§ 15.2-2214—15.2-2217.

(b)

Pursuant to the Code of Virginia, § 15.2-2287.1, members are required, prior to or at a hearing on a matter, make a full public disclosure of any business or financial relationship that such member has, or has had within the 12-month period prior to such hearing and shall be ineligible to vote or participate in any way upon the matter.

Pursuant to the Code of Virginia, § 15.2-2308, a Board of Zoning Appeals (BZA) shall be created and organized as follows:

(1)

A BZA consisting of five members shall be appointed by the circuit court of Essex County. Appointments for vacancies occurring otherwise than by expiration of term shall in all cases be for the unexpired term. A member whose term expires shall continue to serve until the successor is appointed and qualifies.

(2)

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.

(3)

Members of the BZA shall hold no other public office in the locality except that one may be a member of the Planning Commission, and any member may be appointed to serve as an officer of election.

(4)

Any BZA member or alternate may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court which appointed them, after a hearing held after at least 15 days' notice.

(5)

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

Pursuant to the Code of Virginia, § 15.2-2309, the BZA shall have the following powers and duties:

(1)

Appeals.

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 Ordinance as outlined in Article III, Division 5.

b.

No such appeal shall be heard except after notice and hearing as provided by the Code of Virginia, § 15.2-2204.

(2)

Variance.

a.

To authorize upon appeal or original application a variance, as defined in the Code of Virginia, § 15.2-2201, from the terms of this Ordinance when the strict application of the Ordinance would unreasonably restrict the utilization of the property, and such need for a variance would not be shared generally by other properties, and if the applicant proves through a preponderance of evidence that a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship; provided that the spirit of this Ordinance shall be observed and substantial justice done.

b.

No such variance shall be heard except after notice and hearing as provided by the Code of Virginia, § 15.2-2204.

(3)

Boundary Interpretations.

a.

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 any such question, and after public hearing with notice as required by the Code of Virginia, § 15.2-2204, the BZA 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.

b.

The BZA shall not have the power to change substantially the locations of district boundaries as established by Ordinance.

c.

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

(a)

The BZA shall adopt such rules and regulations as it may consider necessary.

(b)

The BZA may adopt policies regarding ex parte communication that are in accordance with the Code of Virginia, § 15.2-2308.1.

(c)

Pursuant to the Code of Virginia, § 15.2-2287.1, members are required, prior to or at a hearing on a matter, make a full public disclosure of any business or financial relationship that such member has, or has had within the 12-month period prior to such hearing and shall be ineligible to vote or participate in any way upon the matter.

(d)

Meetings of the BZA shall be held at the call of its Chairman or at such time as a quorum of the BZA may determine.

(e)

The Chairman or, in their absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.

(f)

The BZA 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 public record.

(g)

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

(h)

A quorum shall be at least three members.

(i)

A favorable vote of three members of the BZA 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 on which the Board is required to pass.

(a)

The Board of Supervisors shall establish, by ordinance, a schedule of fees, charges and expenses, and collection procedures for zoning permits, conditional use permits, variances, appeals, amendments, and other matters pertaining to this Ordinance.

(b)

The schedule of fees shall be available for inspection in the office of the Zoning Administrator and may be altered or amended by the Board of Supervisors by ordinance amendment. Until all application fees, charges and expenses have been paid in full to the Treasurer of Essex County, no application or appeal shall be considered complete; thus, no action shall be taken.

(a)

Authority. As authorized by the Code of Virginia, § 15.2-2286(A)(4), the Zoning Administrator or designee shall be responsible for enforcing the provisions of this Ordinance.

(b)

Inspection Warrants. The Zoning Administrator may enter upon or inspect any land or structure to ensure compliance with the provisions of this Ordinance, after requesting and receiving approval of the landowner to enter upon land for these purposes. If consent is not given by the landowner, the Zoning Administrator may enter upon land in accordance with the Code of Virginia, § 15.2-2286(A)16.

(c)

Notice of Violations.

(1)

Upon becoming aware of any violation of the provisions of this Ordinance, the Zoning Administrator may issue written notice of such violation to the person committing or permitting the violations. Notice shall be mailed by registered or certified mail or hand delivered.

(2)

The notice of violation shall state the nature of the violation, date that it was observed, the remedy or remedies necessary to correct the violation and a reasonable time period for the correction of the violation.

(3)

Every written notice of violation of the Zoning Administrator shall include a statement informing the recipient that he or she may have a right to appeal the notice of zoning violation or written order within 30 days in accordance with the Code of Virginia, § 15.2-2311. The zoning violation or written order shall include the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal. The decision shall be final and unappealable if not appealed within 30 days.

(4)

Appeals shall be heard by the Board of Zoning Appeals in accordance with the procedures set forth in Article II, Division 5.

(d)

Remedies for Violations. Upon becoming aware of any violation and making a determination of validity of any of the provisions of this Ordinance, the Zoning Administrator may institute appropriate action or proceedings, as permitted by law, including injunction, abatement to restrain, correction or abatement.

The remedies provided in the penalties sections below are cumulative and not exclusive except to the extent expressly provided therein.

(1)

Criminal Penalties.

a.

With the exception of the subdivision code in Article IX, any violation of the requirements of this chapter resulting in injury to a person or persons or where such civil penalties exceed $5,000.00, shall be a misdemeanor, and upon conviction thereof, shall be punishable by a fine of not less than $10.00 and not more than $1,000.00.

b.

If the violation is uncorrected at the time of conviction, the court shall order the violator to abate or remedy the violation in compliance with this Ordinance, within a time period established by the court. Failure to remove or abate such violation within the time period established by the court shall constitute a separate misdemeanor offense punishable by a fine of not less than $10.00 nor more than $1,000.00, and any such failure during any succeeding ten-day period shall constitute a separate misdemeanor offense for each ten-day period, punishable by a fine of not less than $100.00 nor more than $1,500.00.

(2)

Civil Penalties. Any violation other than as provided in Section (1) above for criminal penalties shall be subject to the following civil penalties, as provided in Code of Virginia, § 15.2-2209, and subject to the following:

a.

Procedure. Proceedings seeking civil penalties for violations of this Ordinance shall commence either by filing a civil summons in the general district court or by the Zoning Administrator or Agent issuing a ticket.

b.

Civil summons or ticket. A civil summons or ticket shall contain, at a minimum, the following information:

1.

Name and address of the person charged;

2.

Nature of the violation and the Ordinance provisions being allegedly violated;

3.

Location, date and time violation occurred or was observed;

4.

Amount of the civil penalty for the violation; and

5.

Right of the recipient to elect to either pay the penalty or stand trial for the violation and the date of such trial. The summons shall state that if the person elects to pay the penalty, the person must do so by making an appearance in person or in writing by mail to the county treasurer at least 72 hours prior to the time and date fixed for trial and, by such appearance, enters a waiver of trial and admits liability for the offence charged. The summons shall provide that a signature is an admission of liability that shall have the same force and effect as a judgement of the court. However, such admission shall not be deemed a criminal conviction for any purpose.

c.

Failure to Enter Waiver. If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided by law or equity and it shall be the county's burden to prove the violator's liability by a preponderance of the evidence. A finding of liability shall not be deemed a criminal conviction for any purpose.

d.

Fines.

1.

Amount of Civil Penalty. A civil violation shall be subject to a civil penalty of $200.00 for the initial summons, and a civil penalty of $500.00 for each additional summons arising from the same set of operative facts.

2.

Daily Offense. Each day during which a violation exists shall constitute a separate violation. However, in no event shall a violation arising from the same set of operative facts be charged more frequently than once in any 10-day period.

3.

Maximum Aggregate Penalty. The total civil penalties from a series of violations arising from the same set of operative facts shall not exceed $5,000.00. If the violations exceed the $5,000.00 limit, the violation may be prosecuted as a criminal misdemeanor pursuant to Section 36.57.

(a)

Pursuant to the Code of Virginia, § 15.2-2311, 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 this Ordinance.

(b)

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 Zoning Administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

(c)

A decision or interpretation of the Zoning Administrator shall be presumed correct and may not be reversed or modified unless there is evidence in the record that the decision is not correct, based on the relevant procedures and review standards of this Ordinance. The Board of Zoning Appeals shall consider the purpose and intent of any applicable provisions of this Ordinance and other relevant Ordinances, laws, and regulations in making its decision.

(d)

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 their 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

Pursuant to the Code of Virginia, § 15.2-2312, procedures for submitting an appeal shall be as follows:

(1)

Mailing Procedure. Appeals shall be mailed from the applicant seeking appeal to the Board of Zoning Appeals in care of 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.

(2)

Hearing. The Board of Zoning Appeals shall fix a reasonable time for the hearing of an appeal, give public notice thereof as well as due notice to the parties in interest, and decide the same within 90 days of the filing of the appeal.

(3)

Decisions.

a.

In exercising its powers, the BZA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from. In any appeal, if a BZA's attempt to reach a decision results in a tie vote, the matter may be carried over until the next scheduled meeting at the request of the person filing the appeal.

b.

The BZA shall keep minutes of its proceedings and other official actions which shall be filed in the office of the BZA and shall be public records.

c.

The chairperson of the BZA, or in their absence the acting chairperson, may administer oaths and compel the attendance of witnesses.

(a)

Pursuant to the Code of Virginia, § 15.2-2314, any person jointly or severally aggrieved by any decision of the BZA, or any taxpayer or any officer, department, board or bureau of the county may appeal the decision to the circuit court of Essex County.

(b)

A petition specifying the grounds on which the applicant is aggrieved must be submitted 30 days after the filing of the decision in the office of the BZA.

(a)

Pursuant to the Code of Virginia, § 15.2-2313, construction of a building with a valid building permit deemed in violation of this Ordinance may be prevented, restrained, corrected, or abated by suit filed within fifteen days after the start of construction by a person who had no actual notice of the issuance of the permit.

(b)

The court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the administrative officer to the Board of Zoning Appeals.