There shall be created a Board of Zoning Appeals, which shall consist of five (5) residents of Henry County appointed by the circuit court of Henry County. Their terms of office shall be for five (5) years each except that original appointments shall be made for such terms that the term of one (1) member shall expire each year. The secretary of the Board shall notify the court at least thirty (30) days in advance of the expiration of any term of office and shall also notify the court promptly if any vacancy occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves. Members of the Board shall hold no other public office in the county or municipality except that one (1) may be a member of the local Planning Commission. A member whose term expires shall continue to serve until his successor is appointed and qualifies.

With the exception of its secretary, the Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. 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. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the Board. The Board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the County and general laws of the Commonwealth. The Board shall keep a full public record of its proceedings and shall submit a report of its activities to the governing body or bodies at least once each year.

Within the limits of funds appropriated by the governing body, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Board may receive such compensation as may be authorized by the governing body. Any board member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court which appointed him, after hearing held after at least fifteen days' notice.

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 chapter.

B.

To authorize upon appeal or original application in specific cases such variance as defined in section 15.2-2201, Code of Virginia, from the terms of the ordinance as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardships, provided that the spirit of the ordinance shall be observed and substantial justice done as follows:

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance, or whereby reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property, or of the condition, situation, or development of property, immediately adjacent thereto, the strict application of the terms of the 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 approaching confiscation, 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 the ordinance.

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 such variance shall be authorized except after notice and hearing as required by section 15.2-2204, Code of Virginia.

No such 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 resolution to be adopted as an amendment to the ordinance.

In authorizing 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 section 15.2-2204, Code of Virginia.

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. Alter notice to the owners of the property affected by any such questions, and after public hearing with notice as required by section 15.2-2204, Code of Virginia, 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 questions. 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.

F.

To hear and decide applications for such special exceptions as may be authorized in the ordinance. The Board may impose such conditions relating to the use provided for in the authorized special exceptions for which a permit is granted 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.

No such special exception may be granted except after notice and hearing as provided by section 15.2-2204, Code of Virginia.

Application for special exceptions and 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. No such special exceptions or variances shall be authorized except after notice and hearing as required by section 15.2-2204, Code of Virginia. 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. No application for a special use permit or a variance already granted by this Board shall be accepted unless it is determined by the Zoning Administrator that a change of plans in the project would require additional review. No application for a special use permit or a variance which has been denied within the previous one hundred eighty (180) days shall be accepted by the Zoning Administrator unless there has been a substantial change in circumstances or a material change to the application.

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, decision or determination made by any other administrative officer in the administration or enforcement of this article or any ordinance adopted pursuant thereto. Such appeal shall be taken within thirty 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. An appeal shall stay all proceedings in furtherance of the action appealed from unless the Zoning Administrator certifies to the Board that 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.

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 (90) days of the filing of the application or appeal. In exercising its powers the board may reverse or affirm, wholly or partly, or may modify an order, requirement, decision or determination appealed from. The concurring vote of a majority of the membership of the Board shall be necessary to reverse any order, requirement, decision or determination of an administrative officer or pass under the ordinance or to effect any variance from the ordinance. The Board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the Board and shall be public record. The Chairman of the Board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

Where a building permit has been issued and the 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, by suit filed within fifteen (15) days after the start of construction by a person who had no actual notice of the issuance of the permit, 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.

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 present to the Circuit Court of the County a petition specifying the grounds on which aggrieved within thirty (30) days after the filing of the decision in the office of the Board. The date that the decision and any conditions are documented and signed by the Secretary to the Board of Zoning Appeals shall constitute filing of the decision in the office of the Board.

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 realtor's attorney, which shall not be less than ten (10) days and may be extended by the court. 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.

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 or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Costs shall not be allowed against the Board, unless it shall appear to the court that it acted in bad faith or with malice in making the decision appealed from. 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 persons 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.