The board of zoning appeals, established as provided by law, shall have the powers and duties prescribed by law. The board of zoning appeals (hereinafter called "the board") shall elect one of its members chair and one vice-chair, and shall appoint a secretary. The chair, or, in absence of the chair, the vice-chair may administer oaths and compel the attendance of witnesses.

(Code 1973, § 81-20; Code 1982, § 38-8)

State Law reference— Appointment, membership, officers, Code of Virginia, §§ 15.2-2308B, C.

All meetings of the board shall be public. The presence of three members shall be necessary for a quorum. The board shall keep minutes of its proceedings, including a full record of its findings and showing the vote of each member on every question, or, if absent or failing to vote, indicating that fact. The board may, from time to time, adopt such rules as it may deem necessary in order to carry into effect the provisions of this article.

(Code 1973, § 81-21; Code 1982, § 38-9)

In accordance with the chapter 17 of the city Charter, the board shall have the powers hereinafter set forth:

(1)

Judicial. The board shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination by the administrative officer in the administration and enforcement of the provisions of this chapter.

(2)

Interpretation of map. The board shall have the power to hear and decide applications for interpretation of the official zoning district map, where there is any uncertainty as to the location of a district boundary. Where the actual street or lot layout differs from the layout indicated on such map, the board, after notice to the owners of the property and after public hearing, shall interpret the map in such a way as to carry out the intent and purpose of this chapter for the particular section or district in question.

(3)

Extension of a principal residential structure in the R-1A or R-1B district. In an R-1A, R-1B, or R-C district, where an existing principal residential structure is nonconforming with respect to any current setback requirement and the provisions of subsection 48-142(3) do not apply, the board may grant a variance for a structural addition which would occupy a required setback area based upon consideration of peculiar circumstances such as configuration of the lot, interior circulation, existing utilities serving the structure, existing driveways, topographic features, and similar existing conditions, provided that no portion of the addition would encroach further into the required setback area than the existing structure.

(4)

Public buildings, utilities and services. The board shall have the power, upon application, to permit the use of land or the construction or use of buildings or structures, in any district, by any agency of the city, county, state or United States, when reasonably necessary in the public interest; provided that such construction or use shall adequately safeguard the health, safety and welfare of the occupants of the adjoining and surrounding property, shall not unreasonably impair an adequate supply of light and air to adjacent property, shall not increase congestion on the streets and shall not increase public danger from fire or otherwise effect public safety.

(5)

Special use permits.

a.

With the exception of a drive-through and drive-through facilities, which shall be regulated as provided for in section 48-867, the board shall have the power to hear and decide applications for such special use permits as are authorized by this chapter.

b.

In considering an application for a special use permit, the board shall give due regard to the nature and condition of all adjacent uses and structures, and the probable effect upon them of the proposed use. The board shall also take into account the proposed special characteristics, design, method of operation, effect on traffic conditions, or any other aspects of the particular use or structure. If it should find, after the hearing and after considering the report of the planning commission, that the proposed establishment or use will not adversely affect the peace, health or safety of persons residing or working in the neighborhood, nor be detrimental to the public welfare or injurious to property or improvements in the neighborhood, but will be in accordance with the general purpose and objectives of the land use plan and other parts of the official master plan, and of this chapter, the board may authorize the issuance, by the zoning administrator, of a special use permit. 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, construction, equipment, maintenance or operation, in addition to those expressly stipulated in this chapter for the particular use. If such determination is in the affirmative, the board may authorize the issuance of a special use permit and shall stipulate the requirements or conditions which apply, which requirements and conditions shall be indicated on an approved copy of the plans attached to the permit, or shall be recorded by such other method as may be appropriate; but if such determination is in the negative, the permit shall be denied. The board may require satisfactory evidence and guarantee or bond that the conditions stipulated will be and will continue to be complied with.

(6)

Variances. The board shall have the power, upon application, to grant variations in any of the regulations prescribed by this chapter, 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: (i) 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; (ii) the granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; (iii) 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; (iv) 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 (v) 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 section 48-90 or the process for modification of a zoning ordinance pursuant to sections 48-85 through 87 at the time of the filing of the variance application. 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 and is appropriate under 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, such request shall be granted unless a variance from the board of zoning appeals under this section is required in order for such request to be granted. In granting a variation, the board may attach such conditions regarding the location, character or other features of the proposed building, structure or use as it may deem advisable in the interest of the furtherance of the purpose of this chapter. This provision shall not be construed to permit the board, under the guise of a variance, to change the use of the land.

(7)

Issuance and expiration.

a.

Any special use permit or variance may be authorized and issued for either a limited or an indefinite period of time, subject in any case to lapse if not implemented within one year, except as provided in subsections (7)b. and c. of this section, and shall be revocable by the board at any time for failure to adhere to the applicable conditions. Before revoking any such permit or variance, however, the board shall conduct a public hearing, after giving the grantee at least ten days' written notice of the time and place of such hearing.

b.

Any special use permit or variance which has not been implemented within one year of issuance shall lapse and become void except as provided in subsection (7)c. of this section. A special use permit or variance shall be deemed to have been implemented when substantial construction is started, if it related to construction of a building or facility, or when initiated, if it related to a use involving no construction.

c.

The zoning administrator may, upon written application by the grantee, authorize one extension, for a period not to exceed 12 months, of a permit or variance that has not been implemented within the initial one-year period; provided that the failure to implement has been due to causes beyond the control of the grantee and provided that the application for the extension is made within 90 days before the expiration of the initial one-year period of validity.

(Code 1973, § 81-22; Code 1982, § 38-10; Ord. No. 742; Ord. No. 1191, 6-22-1987; Ord. No. 1365, 6-24-1991; Ord. No. 1686, 8-14-2000; Ord. No. 1865, 8-8-2011; Ord. No. 2071, 12-11-2023; Ord. No. 2088, 4-14-2025)

State Law reference— Powers and duties of boards of zoning appeals, Code of Virginia, § 15.2-2309.

(a)

Applications. An application to the board for a variance, special use permit, interpretation of map, or any other action in which the board has original jurisdiction under these provisions, may be made by any property owner, tenant, government official, department head, board, commission or bureau. Such application shall be made to the zoning administrator on forms provided for that purpose, in accordance with rules which shall be adopted by the board. All information required by such forms, or otherwise required by the board in order that it might be fully informed, shall be furnished by the applicant. The zoning administrator shall ensure that the matter is placed promptly on the docket of the board, that a public hearing is held not less than 15 days after it has been properly advertised, and that written notice of such hearing is given to the parties in interest. The zoning administrator shall also transmit a copy of the application to the planning commission, so the commission may send a recommendation to the board from the standpoint of any related master plan or other city planning considerations. No application shall be transmitted to either the board or commission until it has been given the necessary study by and includes the recommendations of all the appropriate department heads and/or other agencies. In respect to applications for special use permits, the planning commission shall send a recommendation to the board of zoning appeals, and the board shall not take action on the matter until it has received such recommendation from the commission.

(b)

Appeals. An appeal to the board may be taken by any person aggrieved, or by any officer, department, board, commission or agency affected by any decision of the zoning administrator relative to the administration of this chapter. An appeal shall be taken within such reasonable time as shall be prescribed by the board by general rule, by filing with the zoning administrator and with the secretary of the board a notice of appeal specifying the grounds. The zoning administrator shall transmit to the board all the records upon which the appeal action is based. An appeal stays all compliance with the action being appealed, unless the zoning administrator certifies to the board that by reason of stated facts a stay would, in his opinion, cause imminent peril to life or property. In such case, compliance shall not be stayed other than by a restraining order which may be granted by the board or by a court of record, on application and on notice to the zoning administrator and on due cause shown.

(c)

Action by the board. The board shall fix a reasonable time for the hearing of an application or appeal, shall give public notice, as well as written notice to the parties in interest and shall decide the issue within a reasonable time. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify, the order, requirement, decision or determination appealed, and may make such order, requirement, decision or determination as should be made and to that end shall have all the powers of the zoning administrator. The concurring affirmative vote of three members of the board shall be necessary to reverse any order, requirement, decision or determination of the zoning administrator or to decide in favor of the applicant in any matter in which it has original jurisdiction. The board shall act by formal resolution which shall set forth the reason for its decision and the vote of each member participating, all of which shall be spread upon its records and shall be open to public inspection. The board may, upon the affirmative vote of three members, reconsider any decision; provided there is new evidence to be presented which could not reasonably have been presented at the original hearing. Every decision of the board shall be based on sworn testimony or on first-hand knowledge, which finding of fact shall be reduced to writing and included in the record.

(d)

Notification and advertising. At least one public hearing shall be held by the board of zoning appeals on each application or appeal brought before it. The board of zoning appeals shall provide advertising of the public hearing as is required of the planning commission in section 48-86(c).

(e)

Written notification. In addition to the advertising as required in subsection (d) of this section, written notice shall also be given by the board of zoning appeals, at least ten days before its hearing, to the owners, their agent or the occupant of all abutting property and property immediately across the street or road from the affected property for applications for sign variances and to owner or owners, their agent or the occupant of all properties within 100 feet of the affected property for applications for all other matters. Notice shall also be given to the owners, the agents of the owners, or the occupants of all abutting property and property immediately across the street or road from the affected property, which lies in an adjoining county.

(f)

Notice by first class mail; affidavit. Whenever the notices required by this section are sent by an agency, department, or division of the city, such notice may be sent by first class mail; provided that a representative of such agency, department or division shall make affidavit that such mailings have been made and file such affidavit with the papers in the case.

(Code 1973, § 81-24; Code 1982, § 38-11; Ord. No. 1092, 1-14-1985)

State Law reference— Applications for special exceptions and variances, Code of Virginia, § 15.2-2310; appeals to board, Code of Virginia, § 15.2-2311; procedure on appeal, Code of Virginia, §§ 15.2-2312, 15.2-2313.

Any person or any public official, board, bureau, department, commission or agency, affected by any decision of the board, may appeal such decision to a court of appropriate jurisdiction, upon such grounds and in such manner, as provided by the city Charter.

(Code 1973, § 81-26; Code 1982, § 38-12)

State Law reference— Certiorari to review decisions of board, Code of Virginia, § 15.2-2314.

The zoning and land development permits, applications and reviews found in this chapter shall be subject to the schedule of fees found in chapter 15, "Fees".

(Code 1973, § 81-28; Code 1982, § 38-13; Ord. No. 1831, 5-26-2009; Ord. No. 1863, 5-9-2011)