(A)

A board consisting of five members shall be appointed by the Circuit Court of Fluvanna County. Members of the board shall be residents of Fluvanna County. Members of the board may receive such compensation as may be authorized by the governing body. Members shall be removable for cause by the appointing court after hearing held after at least 15 days' notice. 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. Members may be reappointed to succeed themselves. A member whose term expires shall continue to serve until his successor is appointed and qualifies. Members of the board shall hold no other public office in the County, except that one of the five appointed members may be an active member of the Planning Commission, any member may be appointed to serve as an officer of election as defined in Code of Va., § 24.2-101, and any member may serve as an elected official of the Town of Scottsville.

(C)

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 a legal interest.

(D)

The board shall choose annually its own chairman and vice chairman who shall act in the absence of the chairman. The board may elect as its secretary either one of its members or a qualified individual who is not a member of the board. A secretary who is not a member of the board shall not be entitled to vote on matters before the board.

(Ord. 12-16-15; Ord. of 05-19-2021 (1))

State Law reference— As to state law authorizing the formation of the County's Board of Zoning Appeals, see Code of Va., § 15.2-2308.

(A)

The non-legal staff of the governing body may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. The applicant, landowner or his agent or attorney may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. If any ex parte discussion of facts or law does occur, the party engaging in such communication shall inform the other party as soon as practicable and advise the other party of the substance of such communication and the identity of the individuals involved in the communication. For the purposes of this section, regardless of whether all parties participate, ex parte communication shall not include (i) discussions as part of a public meeting or (ii) discussions prior to a public meeting to which staff of the governing body, the applicant, landowner or his agent or attorney are all invited.

(B)

Any materials relating to a particular case, including a staff recommendation or report furnished to a member of the board, shall be made available without cost to such applicant, appellant or other person aggrieved under section 15.2-2314 of the Code of Virginia, as soon as practicable thereafter, but no more than three (3) business days after providing such materials to a member of the board. If the applicant, appellant or other person aggrieved under section 15.2-2314 of the Code of Virginia requests additional documents or materials be provided by the locality other than those materials provided to the board, such request shall be made in accordance with the FOIA requirements in section 2.2-3704 of the Code of Virginia. Any such materials furnished to a member of the board shall also be made available for public inspection as required by section 2.2-3707(F) of the Code of Virginia.

(C)

For the purposes of this section, "non-legal staff of the governing body" means any staff who is not in the office of the County Attorney, or for the board, or who is appointed by special law. Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff or any attorney where such communication is protected by attorney-client privilege or other similar privilege or the protection of confidentiality.

(D)

This section shall not apply to cases where an application for a special exception has been filed pursuant to this chapter.

(Ord. 12-16-15)

State Law reference— As to state law provisions regarding Board of Zoning Appeals ex parte communications and proceedings, see Code of Va., § 15.2-2308.1.

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

(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 or of any ordinance adopted pursuant thereto.

(1)

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.

(2)

At a hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden to rebut such presumption of correctness by a preponderance of the evidence.

(3)

The board shall consider any applicable ordinances, laws, and regulations in making its decision. For the purposes of this section, determination means any order, requirement, decision or determination made by an administrative officer.

(4)

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 by Code of Va., § 15.2-2201. 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 the Code of Va., § 15.2-2201 and the criteria set out in this section, as follows:

(1)

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, 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

(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 such 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 or the process for modification of a zoning ordinance at the time of the filing of the variance application.

(2)

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 a locality 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 by the locality unless a variance from the Board of Zoning Appeals under this section is required in order for such request to be granted.

(3)

No such variance shall be considered except after notice and hearing as required by Code of Va., § 15.2-2204, as amended; however, notice of such hearing may be given via first-class mail rather than registered or certified mail pursuant to Code of Va., § 1.2-2309.

(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.

(C)

To hear and decide appeals from the decision of the Zoning Administrator. No such appeal shall be heard except after notice and hearing as provided by Code of Va., § 15.2-2204; however, notice of such hearing may be given via first-class mail rather than registered or certified mail pursuant to Code of Va., § 15.2-2309.

(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 any such question, and after public hearing with notice as required by Code of Va., § 15.2-2204, 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, notice of such hearing may be given via first-class mail rather than registered or certified mail pursuant to Code of Va., § 15.2-2309. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.

(E)

No provision of this section shall be construed as granting any 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 governing body.

(Ord. 12-16-15; Ord. of 05-19-2021 (1))

State Law reference— As to state law regarding powers of the Board of Zoning Appeals, see Code of Va., § 15.2-2309.

(A)

The Board of Zoning Appeals may adopt, alter and rescind such rules and regulations for its procedures, consistent with the ordinances of the County and the general laws of the Commonwealth, as it may consider necessary.

(B)

Meetings of the board shall be held at the call of its chairman or at such times a quorum of the board may determine.

(C)

The chairman, or, in his absence, the acting 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)

The concurring vote of a majority of the membership 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 or to effect any variance from the ordinance.

(Ord. of 05-19-2021 (1))

(A)

Applications for variances may be made by any property owner, tenant, government official, department, board or bureau. Such application shall be made to the Zoning Administrator in accordance with rules adopted by the board. The application and accompanying maps, plans or other information shall be transmitted promptly to the secretary of the board who shall place the matter on the docket to be acted upon by the board. The Zoning Administrator shall also transmit a copy of the application to the local planning commission which may send a recommendation to the board or appear as a party at the hearing. Substantially the same application will not be considered by the board within one year after the decision of the board.

(B)

An appeal to the board 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, decisions or determination made by any other administrative officer in the administration and enforcement of this article, any ordinance adopted pursuant to this article, or any modification of zoning requirements pursuant to this chapter.

(1)

Any written notice of a zoning violation or a written order of the Zoning Administrator dated on or after July 1, 1993, 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 30 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within 30 days. 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 appeal period shall not commence until the statement is given and the Zoning Administrator's written order is sent by registered or certified mail to, or posted at, the last known address or usual place of abode of the property owner or its registered agent, if any. There shall be a rebuttable presumption that the property owner's last known address is that shown on the current real estate tax assessment records, or the address of a registered agent that is shown in the records of the Clerk of the State Corporation Commission.

(2)

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.

(3)

Upon the filing of the appeal, the Zoning Administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed was taken.

(4)

A decision by the board on appeal shall be binding upon the owner of the property which is the subject of such appeal only if the owner of such property has been provided notice of the zoning violation or written order of the Zoning Administrator. The owner's actual notice of such notice of zoning violation or written order or active participation in the appeal hearing shall waive the owner's right to challenge the validity of the board's decision due to failure of the owner to receive the notice of zoning violation or written order.

(5)

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.

(6)

In no event shall a written order, requirement, decision or determination made by the Zoning Administrator or other administrative officer be subject to change, modification or reversal by any Zoning Administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the Zoning Administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the Zoning Administrator or other administrative officer or through fraud. The 60-day limitation period shall not apply in any case where, with the concurrence of the attorney for the governing body, modification is required to correct clerical errors.

(C)

In any appeal taken pursuant to this section, if the Board'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.

(Ord. 12-16-15; Ord. of 05-19-2021 (1))

State Law reference— As to state law regarding appeals to the Board of Zoning Appeals, see Code of Va., § 15.2-2311.

(A)

Applications for variance and appeals shall be filed with the Board of Zoning Appeals in care of the Zoning Administrator.

(B)

Appeals and applications for variance requiring an advertised public hearing shall be accompanied by a filing fee as determined by a fee schedule adopted by resolution of the governing body. The fee for filing an appeal shall not exceed the costs of advertising the appeal for public hearing and reasonable costs, as provided in section 15.2-2311(A) of the Code of Virginia.

(Ord. 9-21-05)

(C)

All other procedural requirements of section 15.2-2312 of the Code of Virginia shall be observed by the Board of Zoning Appeals.

(D)

For the conduct of any hearing, a quorum shall not be less than three members of the board and the board shall offer an equal amount of time in a hearing on the case to the applicant, appellant or other person aggrieved, and the staff of the local governing body, pursuant to section 15.2-2308 of the Code of Virginia.

(Ord. 12-16-15)

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 ninety days. In exercising its powers, the board may reverse or affirm wholly or partly, or may modify, the order, requirement, decision or determination of an administrative officer or decide in favor of the applicant on any matter upon which it is required to pass under the ordinance or to effect any variance from the ordinance.

(Ord. 12-16-15)

State Law reference— As to state law regarding the timing of public hearing and powers of the Board of Zoning Appeals, see Code of Va., § 15.2-2312.

(A)

Any person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals, or any taxpayer or any officer, department, board or bureau of the County, 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 Fluvanna County" specifying the grounds on which aggrieved within 30 days after the filing of the decision in the office 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 ten 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 as may be called for by such writ. The return shall concisely set forth such facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(E)

The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(F)

Costs shall not be allowed against the locality or the governing body, unless it shall appear to the court that it 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 person who requested the issuance of the writ of certiorari to pay the costs incurred in making a return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the locality or the governing body may request that the court hear the matter on the question of whether the appeal was frivolous.

(Ord. 12-16-15; Ord. of 05-19-2021 (1))

(A)

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, or any modification of zoning requirements, 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 Zoning Appeals erred in its decision. The court shall hear any arguments on questions of law de novo.

(B)

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 the 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.

(C)

In the case of an appeal by a person of any decision of the Board of Zoning Appeals that denied or granted application for a special exception, the decision of the Board of Zoning Appeals shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that Board of Zoning Appeals applied erroneous principles of law, or where the discretion of the Board of Zoning Appeals is involved, the decision of the board (i) was plainly wrong, (ii) was in violation of the purpose and intent of the zoning ordinance, and (iii) is not fairly debatable.

(D)

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.

(Ord. 12-16-15)