There shall be a Board of Zoning Appeals (hereinafter called the Board) which shall consist of five members, each to be a resident of the Town and each to be recommended by the Hamilton Town Council and appointed by the Loudoun County Circuit Court for terms of five years except that original appointments shall be made for such terms that the term of one member shall expire each year. When approved by the Council, one member may be a member of the Town Planning Commission. Vacancies shall be filled by the Council for the unexpired portion of the term. A member may be removed by the Council for cause, upon written charges and after a public hearing. Each member may receive such compensation as the Town Council may authorize for attendance at each regular or called meeting of the Board.

The Board shall elect one of its members as Chairman. The Chairman shall preside at all meetings of the Board and in his/her absence a member designated as acting Chairman shall preside. The Chairman shall be a voting member of the Board and possess all of the same rights and privileges as other members of the Board. The Board of Zoning Appeals, by majority vote, appoint a Secretary whose duty it shall be to keep the minutes and other records of the actions and deliberations of the Board and perform such other ministerial duties as the Board shall direct. The Secretary may be a salaried Town employee and shall perform the duties of Secretary of the Board in addition to his or her other regular duties.

The Board shall adopt such rules of procedure as it may deem necessary or use "Roberts Rules of Order" in order to carry into effect the provisions of this Ordinance, said rules to be in writing and copies available to the public at the office of the Zoning Administrator and/or the Secretary of the Board. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. Such Chairman, or in his/her absence the acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. 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, and 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. The Board shall submit a report of its activities to the Town Council after each meeting.

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

1.

To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the administration or enforcement of this Ordinance.

2.

To authorize upon appeal in specific cases such variance from the terms of this Ordinance as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in undue hardship; provided that the spirit of the Ordinance shall be observed, public safety and welfare secured, and substantial justice done as hereinafter provided.

3.

To hear and decide applications for interpretation of the Zoning District Map where there is any uncertainty as to the location of a district boundary.

4.

To determine, in cases of uncertainty, of the district classification of any use not specifically named in these regulations; provided, however such use shall be in keeping with uses specifically permitted in the districts in which such use is to be classified.

5.1.

Subject to the provisions of Section 4 of this Article, the Board shall have the power to grant variances from the terms of this Ordinance as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in undue hardship; provided that the spirit of the Ordinance shall be observed and substantial justice done, as follows:

1.

A variation in the yard and lot area requirements in any district so as to relieve practical difficulties or particular hardships in cases, when a property owner can show that his property was acquired in good faith and where, by reason of exceptional narrowness, shallowness, size, or shape of a specific piece of property at the time of the effective date of this Ordinance, or where by reason of exceptional topographic conditions of other extraordinary situation, or condition of such piece of property, or the condition, situation, or development of property immediately adjacent thereto, the strict application of the terms of this Ordinance would effectively prohibit or unreasonably restrict the utilization of the property, or where the Board is satisfied, upon the evidence heard by it, that the granting of such variance will alleviate a clearly demonstrable hardship, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of this Ordinance.

5.2.

No such variance shall be authorized by the Board unless it finds:

1.

That the strict application of the Ordinance would produce undue hardship.

2.

That such hardship is not shared generally by other properties in the same zoning district and the same vicinity.

3.

That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance. No variance shall be authorized unless the Board finds that 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.

6.1.

At the time an application is submitted, the applicant shall elect whether to seek an administrative variance or whether to seek a variance as set forth in Section 5 of this Article. If the applicant fails to make such an election, his application will be processed under this section.

6.2.

The Zoning Administrator may grant an administrative variance from any building setback requirement. No such administrative variance shall be authorized by the Administrator unless he makes the following findings in writing:

1.

That the strict application of the ordinance requirement would produce undue hardship;

2.

That such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and

3.

That the authorization of such administrative variance will not be of substantial detriment to adjacent property and that the character of the zoning district will not be changed by the granting of the administrative variance.

6.3.

Any application for an administrative variance described in this section shall be made in accordance with the provisions of this article.

6.4.

The Zoning Administrator shall, at least 14 days before acting on any application for an administrative variance, post on the land or building involved a notice of the application as to notify the public describing the property and nature of the variance.

6.5.

The Zoning Administrator shall send written notice of an application for an administrative variance to adjacent property owners by registered, certified or first class mail. The "date of notice" shall be the date the notice is mailed. The notice shall specify that the Zoning Administrator will approve or disapprove the application not less than 21 days after the date of notice. If written notice is provided by first class mail, the Zoning Administrator shall make affidavit that such notice has been sent and shall file the affidavit with the application.

6.6.

If any adjacent property owner objects to the application, in writing, prior to the date the Zoning Administrator renders the decision on the application, the application shall be transferred to the board of zoning appeals for a decision.

6.7.

The Zoning Administrator shall approve or disapprove an application for an administrative variance not less than 21 days after the date of notice of the application nor more than 90 days after the application for the variance is received.

6.8.

Any appeal of the final decision of the Zoning Administrator on an application for an administrative variance shall be made to the Board of Zoning Appeals.

The Board may require satisfactory evidence and guarantee or bond that the conditions stipulated will be and will continue to be complied with. Any variance permit may be authorized and issued for either a limited or an indefinite period of time and shall be revocable by the Board at any time for failure to adhere to the applicable conditions. Before revoking any such permit, however, the Board shall afford the permit holder an opportunity to be heard, giving him at least five days written notice of the time and place of such hearing, served as prescribed by law.

After the Board of Appeals has granted a variance, the variance shall lapse after the expiration of two years if no substantial construction or change of use has taken place in accordance with the plans for which such variance was granted, or if the Board does not specify some longer period than two years for good cause shown, and the provisions of these regulations shall thereafter govern.

The procedure for amendment of a variance already approved, or a request for a change of conditions attached to an approval, shall be the same as for a new application except that where the Administrator determines the change to be minor relative to the original approval he/she may transmit the same to the Board with the original record without requiring that a new application be filed.

10.1.

Appeals. An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau affected, by any decision of the Administrator, or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this Ordinance. Such appeal shall be taken within 30 days after the decision appealed from by filing with the Administrator, and with the Board, a notice of appeal specifying the grounds thereof. The Administrator shall forthwith transmit to the Secretary of the Board all the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in the furtherance of the action appealed from, unless the Administrator certifies to the Board after the notice of appeal shall have been filed with him/her that by reason of facts stated in the certificate a stay would, in his/her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or a court of record, on application and on notice to the Administrator and for good cause shown. An application for appeal (appeal) shall be advertised for public hearing as set forth by the provisions of Section 15.2-2285 of the Code of Virginia, 1950, as amended.

In any case where the Administrator has certified conformity with the provisions of this Ordinance and a building permit has been issued and construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of the Zoning Ordinance, suit may be filed within 15 days after the start of construction by a person who had no actual notice of the issuance of such permit. The Court may hear and determine issues raised in the litigation even though no appeal was taken from the decision of the Administrator to the Board of Zoning Appeals.

10.2.

Hearing and Decision. The Board shall fix a reasonable time for the hearing of the application or appeal, give public notice thereof as required by law, as well as due notice to the parties in interest, and decide the same within 90 days of the filing of the application or appeal. Upon the hearing any party may appear in person or by agent or by attorney. In exercising its powers, the Board may, in conformity with the provisions of this Ordinance, reverse or affirm, wholly or partly, or may modify, an order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and to that end shall have all the powers of the officer from whom the appeal is taken, The concurring vote of a majority of the membership of the Board shall be necessary to reverse any order, requirement, decision or determination of the administrative officer or to 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. A tie vote on appeal of any order, requirement, decision or determination of the Administrator shall be found to have failed.

Appeals to courts from a decision of the Board may be filed in the manner prescribed by law.