(a)

A board of zoning appeals of the town, is hereby established.

(b)

The board of zoning appeals shall consist of three residents of the town appointed by the circuit court of the county. Their terms of office shall be for five years each except that original appointments shall be made for such terms that the term of one member shall expire each year. The secretary of the board shall notify the court at least 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 town except that one may be a member of the commission. A member whose term expires shall continue to serve until the member's successor is appointed and qualifies.

(c)

With the exception of the 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. Notwithstanding any other provision of law, general or special, 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 and the board shall offer an equal amount of time in a hearing on the case to the applicant, appellant or other person aggrieved under Code of Virginia, § 15.2-2314, and the staff of the town. Except for matters governed by Code of Virginia, § 15.2-2312, no action of the board shall be valid unless authorized by a majority vote of those present and voting. The board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the town 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 town at least once a year.

(d)

Within the limits of funds appropriated by the town council, the board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services, if authorized to do so by the town council. Members of the board may receive such compensation as may be authorized by the town council. Any board member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court which appointed the member after hearing held after at least 15 days' notice.

(Code 1967, § 4-127; Amd. of 12-6-2016; Ord. of 1-4-2022(1))

(a)

The non-legal staff of the town 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 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 in fact occurs, 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. For purposes of this section, regardless of whether all parties participate ex parte communications shall not include:

(1)

Discussions as part of a public meeting; or

(2)

Discussions prior to a public meeting to which staff of the governing body, the application, landowner or 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 Code of Virginia, § 15.2-2314, as soon as practicable thereafter, but in no event more than three business days of providing such materials to a member of the board. If the applicant, appellant or other person aggrieved under Code of Virginia, § 15.2-2314 requests additional documents or materials be provided by the town other than those materials provided to the board, such request shall be made pursuant to the Virginia Freedom of Information Act (Code of Virginia, § 2.2-3704). Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to Code of Virginia, § 2.2-3707(f).

(c)

For the purposes of this section, the term "non-legal staff of the town" means any staff who is not in the office of the town attorney or any attorney representing the board, or who is appointed by special law or pursuant to Code of Virginia, § 15.2-1542. Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff of any attorney where such communication is protected by the attorney-client privilege or other similar privilege or protection of confidentiality.

(d)

This section shall not apply to cases where an application for a special exception has been filed pursuant to Code of Virginia, § 15.2-2309, subd. 6.

(Code 1967, § 4-127.1; Ord. of 12-6-2016)

The board of zoning appeals shall have the following powers and duties:

(1)

To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this article or of Code of Virginia, § 15.2-2280. 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. At a hearing on an appeal, the administrative officer shall explain the basis for the determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence. The board shall consider any applicable ordinances, laws and regulations in making its decision. For purposes of this section, the term "determination" means any order, requirement, decision or determination made by an administrative officer. Any appeal of a determination to the board shall be in compliance with this section, notwithstanding any other provision of law, general or special.

(2)

a.

Notwithstanding any other provision of law, general or special, to grant upon appeal or original application in specific cases a variance as defined in Code of Virginia, § 15.2-2201, provided that the burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that the application meets the standard for a variance as defined in Code of Virginia, § 15.2-2201 and the criteria set out in this section.

b.

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 article 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 from which this article is derived; and

1.

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;

2.

The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area;

3.

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 this article;

4.

The granting of the variance does not result in a use that is not otherwise permitted on such property or a change in zoning classification of the property; and

5.

The relief or remedy sought by the variance application is not available through a special exception process that is authorized in the article pursuant to Code of Virginia, § 15.2-2309, subd. 6 or the process for modification of a zoning ordinance pursuant to Code of Virginia, § 15.2-2286, subd. a.4 at the time of the filing of the variance application.

(i)

No variance shall be considered except after notice and hearing as required by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents, or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail.

(ii)

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. Notwithstanding any other provision of law, general or special, the property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state law and local ordinance; however, the structure permitted by the variance may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance is required under the article. Where the expansion is proposed within an area of the site or part of the structure for which a variance is required, the approval of an additional variance shall be required.

(3)

To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail.

(4)

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 Virginia, § 15.2-2204, the board may interpret the map in such a way as to carry out the intent and purpose of this article for the particular section or district in question. However, when giving any required notice to the owners, agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by article.

(5)

No provision of Code of Virginia, § 15.2-2309 or of this section shall be construed as granting the board the power to rezone property or to base board decisions on the merits of the purpose and intent of ordinances duly adopted by the town council.

(6)

The board by resolution may fix a schedule of regular meetings, and may also fix the day to which any meeting shall be continued if the chairperson, or vice-chairperson if the chairperson is unable to act, finds and declares that weather or other conditions are such that it is hazardous for members to attend the meeting. Such finding shall be communicated to the members and the press as promptly as possible. All hearings and other matters previously advertised for such meeting in accordance with Code of Virginia, § 15.2-2312 shall be conducted at the continued meeting and no further advertisement is required.

(Code 1967, § 4-128; Amd. of 12-6-2016)

(a)

Application for modifications from certain requirements of this article may be made by any property owner, tenant, governmental official, department, board or bureau. The zoning administrator is hereby authorized to grant a modification from any provision contained in this article with respect to physical requirements on a lot or parcel of land, including, but not limited to, size, height, location or features of or related to any building, structure or improvements if the administrator finds in writing that:

(1)

The strict application of the article would produce undue hardship;

(2)

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

(3)

The authorization of the modification will not be of substantial detriment to the adjacent property and the character of the zoning district will not be changed by the granting of the modification.

(b)

(1)

Prior to the granting of a modification, the zoning administrator shall give, or require the applicant to give, all adjoining property owners written notice of the request for modification and an opportunity to respond to the request within 21 days of the date of the notice.

(2)

The zoning administrator shall make a decision on the application for modification and issue a written decision with a copy provided to the applicant and any adjoining landowner who responded in writing to the notice sent pursuant to this subsection.

(3)

The decision of the zoning administrator shall constitute a decision within the purview of Code of Virginia, § 15.2-2311, and may be appealed to the board of zoning appeals as provided by that section. Decisions of the board of zoning appeals may be appealed to the circuit court as provided by Code of Virginia, § 15.2-2314.

(c)

The zoning administrator shall respond within 90 days to a request for a decision or determination on matters within the scope of the zoning administrator's authority under this section unless the requester has agreed to a longer period.

(d)

Substantially the same application for any modification will not be considered by the zoning administrator within one year from the consideration of any prior application with respect to the same property or matter by the zoning administrator or board of zoning appeals, as the case may be.

(e)

The fee for processing an application for modification under this section shall be as set forth in the town master list of fees and charges.

(Code 1967, § 4-128.1; Ord. of 12-6-2016)

(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. No such variance shall be authorized except after notice and hearing as required by section 28-884. The zoning administrator shall also transmit a copy of the application to the commission which may send a recommendation to the board or appear as a party at the hearing.

(b)

Appeals. An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the town 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, any ordinance adopted pursuant to this article or any modification of zoning requirements pursuant to this article. Any written notice of a zoning violation or written order of the zoning administrator shall include a statement informing the recipient that said recipient may have a right to appeal the notice of zoning violation or written order within 30 days and that the decision shall be final and unappealable if not appealed within 30 days. 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 applicant shall pay all costs of advertising when advertising is required. 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 by reason of facts stated in the certificate a stay would in said zoning administrator's 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.

(c)

Procedure on appeal. 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 60 days. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision of 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 to decide in favor of the applicant on any matter upon which it is required to pass under the article or to affect any variance from the article. 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 records. The chairperson of the board, or in the chairperson's absence, the acting chairperson, may administer oaths and compel the attendance of witnesses.

(Code 1967, § 4-129; Ord. of unknown date(2), § 1)

(a)

The board of zoning appeals shall, upon appeal under the procedure set forth in section 28-786, authorize such variances from the terms of the article as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship; provided that the spirit of the article shall be observed and substantial justice done, as follows:

(1)

When a property owner can show that the 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 from which this article is derived, or where, by 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 terms of the article 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 article.

(2)

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

a.

The strict application of the article would produce undue hardship.

b.

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

c.

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.

(3)

No such variance shall be authorized except after notice and hearing as required by section 28-884.

(4)

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 article.

(b)

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.

(Code 1967, § 4-130)