Isle Of Wight County Unincorporated
City Zoning Code

ARTICLE I

- General Provisions.

Sec. 1-1000.- Title.

This ordinance shall be known and may be cited as the Isle of Wight County Zoning Ordinance as adopted by the Isle of Wight County Board of Supervisors on July 7, 2005, effective August 30, 2005. (7-7-05; 7-19-18.)

Sec. 1-1001. - Authority.

This ordinance is adopted pursuant to the provisions of Title 15.2, Chapter 22, Article 7, of the Code of Virginia, as amended.

Whenever any provision of the ordinance refers to or cites a subsection of Title 15.2, Chapter 22, Article 7, of the Code of Virginia and that section is later amended or superseded, the ordinance shall be deemed amended to refer to the amended section or the section that most nearly corresponds to the superseded section. (7-7-05; 7-19-18.)

Sec. 1-1002. - Purpose.

The purpose of this ordinance is to implement the Isle of Wight County Comprehensive Plan and promote and protect the health, safety, and general welfare of the present and future residents and businesses of the county by:

Giving effect to policies and proposals of the Isle of Wight County Comprehensive Plan;

Dividing the unincorporated area of the county into districts of distinct community character according to the use of land and buildings, the intensity of such use (including bulk and height), and surrounding open space;

Preserving and enhancing the county's rural and agricultural character and resources;

Preserving and protecting the county's natural resources and protecting the waters of the Chesapeake Bay and Blackwater River and their tributaries;

Regulating the location and use of buildings, structures, and land for trade, industry, residences, and other uses;

Lessening the danger and congestion of traffic on the road and highways; limiting excessive numbers of intersections, driveways, and other friction points; minimizing other hazards; and insuring the continued usefulness of all elements of the existing highway system for their planned function;

Providing nonvehicular, multipurpose pathways in order to promote the health and safety of our citizens;

Securing safety from fire, panic, flood, and other dangers;

Providing adequate light and air, and protecting against the overcrowding of land and undue density of population in relation to the community facilities existing or available;

Protecting the tax base by facilitating cost-effective development within the county;

Promoting economy in local government expenditures;

Protecting the values of property throughout the county;

Protecting landowners from adverse impacts of adjoining development;

Providing future land uses with adequate public facilities;

Protecting against the destruction of or encroachment upon historical areas.

Each purpose listed above serves to balance the interest of the general public of the county and those of individual property owners. (7-7-05; 7-19-18.)

Sec. 1-1003. - Jurisdiction.

This ordinance shall apply to all properties within Isle of Wight County, Virginia, excluding the incorporated towns of Smithfield and Windsor. (7-7-05; 7-19-18.)

Sec. 1-1004. - Effective date.

This ordinance shall become effective on August 30, 2005. (7-7-05; 7-19-18.)

Sec. 1-1005. - Conflicting ordinances.

All ordinances and parts of ordinances in conflict with the provisions of this ordinance, except as hereinafter provided, are hereby repealed; provided, however, that the zoning ordinance of the County of Isle of Wight adopted February 6, 1970, as amended, shall not be considered repealed as to any violation thereof existing on the effective date of this ordinance, unless such violation conforms to the provisions of this ordinance.

Where there are standards imposed in this ordinance, which are more restrictive than other standards contained in this ordinance, the more restrictive standards shall apply.

Where there is conflict between the ordinance and the tables, the ordinance shall govern. (7-7-05; 7-19-18.)

Sec. 1-1006. - Severability.

Should any section or provision of this ordinance be decided by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any part thereof other than the part so held to be unconstitutional or invalid. (7-7-05; 7-19-18.)

Sec. 1-1007. - Application of regulations.

Subject to section 1-1020 of this ordinance (nonconforming situations), no person may use or occupy any land, building, or structure, or authorize or permit the use or occupancy of any land, building, or structure under his or her control except in accordance with all of the applicable provisions of this ordinance.

For purposes of this section, the "use" or "occupancy" of a building, structure, or land relates to anything and everything that is done to, on, or in that building or land. (7-7-05; 7-19-18.)

Sec. 1-1008. - Relationship to comprehensive plan.

It is the intention of the board of supervisors that this ordinance implement the planning policies and objectives for the county as reflected in the comprehensive plan. While the board of supervisors reaffirms the commitment that this ordinance and any amendment to it be in conformity with adopted plans, the board of supervisors hereby expresses the intent that neither this ordinance nor any amendment to it may be challenged on the basis of any nonconformity with any planning document. (7-7-05; 7-19-18.)

Sec. 1-1009. - Copies on file.

A certified copy of the foregoing Zoning Ordinance of Isle of Wight County, Virginia, shall be filed in the Department of Planning and Zoning of Isle of Wight County and in the Office of the Clerk of the Circuit Court of Isle of Wight County, Virginia. (7-7-05; 7-19-18.)

Sec. 1-1010. - Disclosure.

The applicant for a special exception, special use permit, amendment to the zoning ordinance or variance shall make complete disclosure of the equitable ownership of the real estate to be affected including, in the case of corporate ownership, the name of the stockholders, officers, and directors, and in any case the names and addresses of all the real parties of interest. However, the requirement of listing names of stockholders, officers and directors, shall not apply to a corporation whose stock is traded on a national or local stock exchange or having more than five hundred (500) shareholders.

Petitions brought by property owners or their agents, (including contract purchasers) shall be sworn to before a notary public or other official before whom oaths may be taken stating whether or not any member of the local planning commission or governing body has any interest in such property, either individually, by ownership or stock in a corporation owning such land, partnership, as the beneficiary or a trust, or the settlor of a revocable trust, or whether a member of the immediate household of any member of the planning commission or governing body has any such interest. (7-7-05; 7-19-18.)

Sec. 1-1011. - Powers and duties of the zoning administrator.

The office of zoning administrator is hereby established. The primary responsibility for administering and enforcing this ordinance shall be assigned to the zoning administrator.

The zoning administrator shall be vested and charged with the following powers and duties:

Receive, process, and review complete applications under the provisions of this ordinance for transmittal and recommendation to the planning commission, board of zoning appeals, and board of supervisors.

Issue zoning permits pursuant to the provisions of this ordinance and suspend or revoke any zoning permit upon violation of any of the provisions of this ordinance or any approvals granted hereunder subject to the requirements of this ordinance.

The zoning administrator shall keep records of all zoning permits issued under this ordinance, maintain permanent and current records related to the ordinance, including the official zoning map, amendments, conditional use and special use permits, variances, appeals, and development site plans; and, make annual reports and recommendations to the planning commission and board of supervisors on matters pertaining to this ordinance.

If this ordinance requires approval by another agency of certain site plan features, such approval shall be obtained prior to issuance of a zoning permit, unless deemed unnecessary by the zoning administrator due to the scope and nature of the proposed project or development.

Conduct inspections and surveys to determine whether a violation of this ordinance exists.

The zoning administrator or his agent may present sworn testimony to a magistrate or court of competent jurisdiction and, if such sworn testimony establishes probable cause that a zoning ordinance violation within a dwelling unit has occurred, may request that the magistrate or court grant the zoning administrator or his agent an inspection warrant to enable the zoning administrator or his agent to enter the subject dwelling unit for the purpose of determining whether violations of the zoning ordinance exist. The zoning administrator or his agent shall make a reasonable effort to obtain consent from the owner or tenant of the subject dwelling prior to seeking the issuance of an inspection warrant pursuant to this section.

Whenever the zoning administrator has reasonable cause to believe that any person has engaged in or is engaging in any violation of any provision of this chapter that limits occupancy in a residential dwelling unit, which is subject to a civil penalty, and the zoning administrator, after a good faith effort to obtain the data or information necessary to determine whether a violation has occurred, has been unable to obtain such information, he may request that the county attorney petition the judge of the general district court for a subpoena duces tecum against any such person refusing to produce such data or information. The judge of the court, upon good cause shown, may cause the subpoena to be issued. Any person failing to comply with such subpoena shall be subject to punishment for contempt by the court issuing the subpoena. Any person so subpoenaed may apply to the judge who issued the subpoena to quash it.

Seek criminal or civil enforcement for any provision of this ordinance and take any action on behalf of the county, either at law or in equity, to prevent or abate any violation or potential violation of this ordinance.

Render interpretations, upon written request of an interested person whose property may be affected, as to the applicability of this ordinance to particular uses and its application to the factual circumstances presented. When such request is made by an applicant which is not the owner of the property in question, written notice of the request shall be provided to the owner of the property within ten (10) days of receipt of the application.

Design and distribute applications and forms required by this ordinance and request information which is pertinent to the requested approval.

Perform such duties as are necessary for the proper enforcement and administration of this ordinance.

In appropriate cases, allow for the refund of fees paid pursuant to this zoning ordinance upon certification by the zoning administrator of the need for such refund and approval by the county administrator. (7-7-05; 1-22-09; Ord. No. 2011-14-C, 8-4-11; 7-19-18; 11-16-23(2).)

Sec. 1-1012. - General permit requirements.

Severability. .....Nothing in this section or other sections of this ordinance shall be construed to exempt any applicant for a permit from compliance with all local, state, and federal codes, statutes, and regulations.

Permit authorization.

Zoning, use and occupancy permits issued on the basis of required plans and applications approved by the zoning administrator shall authorize only the use, arrangement and construction set forth in such permits, plans, and no other. The use, arrangement, or construction significantly deviating with that authorization shall be deemed a violation of this ordinance.

All departments, officials and public employees of Isle of Wight County, which are vested with the duty or authority to issue permits or licenses shall do so in conformance with the provisions of this ordinance. Such departments and personnel shall issue permits for uses, buildings or purposes only when they are in harmony with the provisions of this ordinance. Any such permit, if issued in conflict with the provisions of this ordinance, shall be null and void.

Who may submit permit applications.

Applications for permits will be accepted only from the property owner or the property owner's authorized representative. The zoning administrator or designated representative may require an applicant to provide evidence of his authority to submit the application.

All real estate taxes and any outstanding fees or charges must be current at such time an application is submitted for any activity regulated under this ordinance.

Applications to be complete.

All applications for permits listed in this article must be complete before the application is to be considered. An application is complete when it contains all of the information that is necessary to decide whether or not the development, if completed as proposed, will comply with all requirements of this ordinance.

All prescribed application or permit fees as shall be set forth in the Isle of Wight County Uniform Fee Schedule, as adopted by the board of supervisors, as it may be amended, must be paid.

Compliance with the Chesapeake Bay Preservation Area Ordinance. .....Any structure or use which is subject to the provisions of this ordinance and located upon any lot, parcel, or tract of land located within the designated Isle of Wight County Chesapeake Bay Preservation Area shall be in compliance with the Isle of Wight County Chesapeake Bay Preservation Area Ordinance, located in Appendix B-1 of the Isle of [Wight] County Code.

Compliance with the Isle of Wight Erosion and Sediment Control Ordinance. .....No excavation or land disturbance associated with any structure or use shall begin until such time as an erosion and sediment control plan is reviewed and approved by the department of planning and zoning and a permit for such disturbance is issued.

Compliance with subdivision ordinance. .....Any newly created parcel, lot or tract shall comply with the provisions of this ordinance and the Subdivision Ordinance of Isle of Wight County. (7-7-05; 5-1-14; 7-19-18.)

Sec. 1-1013. - Zoning permit and occupancy permit guidelines.

When is a zoning permit required.

A zoning permit shall be required for the erection, construction, reconstruction, moving, adding to, enlargement or alteration of any structure, or the establishment of any land use, except for bona fide agricultural uses, such as raising of crop or livestock, permitted by right under the provisions of this ordinance.

No permanent sign may be erected without first obtaining a zoning permit in accordance with this ordinance.

No building or other structure except accessory farm structures shall be razed, demolished, or removed, either entirely or in part, nor shall any of said activities be commenced, without a zoning permit.

Additional permits may be required to enforce the provisions of this ordinance.

Exemption from zoning permit. .....The following uses do not require a zoning permit for erection, construction, reconstruction, moving, adding to, enlargement or alteration:

Streets.

Electric power, telephone, cable television, gas, water, and sewer lines, street lights, wires or pipes, together with supporting, poles or structures, and traffic control signs located within a public right-of-way.

Zoning permit applications.

All applicants for a zoning permit shall be accompanied by such plans and information as the zoning administrator deems to be necessary and appropriate to determine compliance and provide for enforcement of this ordinance.

If the zoning permit involves the subdivision of land, an approved subdivision plat shall be required.

Zoning permit approval. .....A zoning permit shall not be issued unless and until the site plan and project proposal complies with applicable established design criteria, construction standards, and specifications for all improvements as may be required by this ordinance.

Expiration of permits. .....All permits shall expire automatically if, within six (6) months after the issuance of such permits:

The use authorized by such zoning and/or other permit has not commenced, in circumstances where no substantial construction, erection, alteration, excavation, demolition, or similar work is necessary before commencement of such use; or

If, after some physical alteration to land or structures begins to take place, such work is discontinued for a period of six (6) months, then the permit authorizing such work shall immediately expire. However, expiration of the permit shall not affect the provisions of severability, subsection 1-1012.A.

General description of occupancy permit.

No person shall use or permit the use of any structure or premises or part thereof hereafter created, erected, changed, converted, enlarged or moved, wholly or partly, until an occupancy permit shall have been issued by the building official.

No building, or other structure, or land shall be used, nor shall any building, structure, or land be converted, wholly or in part, to any other use, except for bona fide agricultural uses permitted by right under the provisions of this ordinance, until an occupancy permit has been issued by the building official.

Such permits shall show that the structure or use, or both, or the premises, or the affected part thereof, are in conformity with the provisions of this ordinance.

It shall be the duty of the building official to issue such permit if it is found that all of the provisions of this ordinance have been met and to withhold such permit unless all requirements of this ordinance have been met. If an occupancy permit is not issued, written notice shall be given to the applicant stating why an occupancy permit cannot be issued.

Upon written request from the owner, and upon inspection to determine the facts in the case, the building official shall issue an occupancy permit for any building premises or use that is in conformity with the provisions of this ordinance or where a legal nonconformity exists, as determined by the zoning administrator.

Temporary or partial occupancy permit.

The building official at his discretion may issue a temporary occupancy permit with a recommendation from the zoning administrator for a period not exceeding six (6) months during alterations or partial occupancy of a building pending its completion in accordance with general rules or regulations concerning such additional conditions and/or safeguards as are necessary, in the circumstances of the case, to protect the safety of the general public. The occupancy permit recipient may be required to provide a performance bond or other security satisfactory to the zoning administrator and approved as to form by the county attorney to ensure that all of the requirements of this ordinance will be fulfilled within a reasonable period determined by the zoning administrator.

A final occupancy permit may be issued for any appropriate complete building or part of a building located in a part of the total area or any approved site plan, provided:

The other on-site construction and improvements included in the approved site plan for the section have been inspected and accepted by the county and other appropriate agencies and, at the discretion of the zoning administrator, a certified "as built" site plan has been submitted for review and approval prior to the proposed date of occupancy.

The off-site improvements related to and necessary to serve the section have been completed, inspected and accepted by the county, the Virginia Department of Transportation or other appropriate agencies; and the developer has submitted a certified "as built" drawing for the section; or the developer has provided surety acceptable to the zoning administrator and approved as to form the by the county attorney.

Enforcement and review.

Zoning permit authorization.

Zoning and occupancy permits issued on the basis of plans and applications approved by the zoning administrator shall authorize only the use, arrangement and construction set forth in such permits, plans, and certificates, and no other. The use, arrangement, or construction at variance with that authorization shall be deemed a violation of this ordinance.

All departments, officials and public employees of Isle of Wight County, which are vested with the duty or authority to issue permits or licenses, shall do so in conformance with the provisions of this ordinance. Such departments and personnel shall issue certifications or permits for uses, buildings or purposes only when they are in harmony with the provisions of this ordinance. Any such certification or permit, if issued in conflict with the provisions of this ordinance, shall be null and void.

Complaints regarding violations. .....Whenever the zoning administrator receives a written, signed complaint or a duly completed complaint form alleging a violation of this ordinance, he shall investigate the complaint, take whatever action is warranted, and inform the complainant of what actions have been or will be taken.

Persons liable. .....The owner, tenant, or occupant of any building or land or part thereof and any architect, builder, contractor, agent, or other person who participates in, assists, directs, creates, or maintains any situation that is contrary to the requirements of this ordinance may be held responsible for the violation and suffer the penalties and be subject to the remedies herein provided.

Procedures upon discovery of violations.

If the zoning administrator finds that any provision of this ordinance is being violated, a written notice shall be forwarded to the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it.

In cases when delay would seriously threaten the effective enforcement of this ordinance or pose a danger to the public health, safety, or welfare, the zoning administrator may seek enforcement without prior written notice by posting an order to "cease and desist", and by invoking any of the penalties or remedies authorized in this ordinance.

The zoning administrator in consultation with the county attorney may pursue other legal remedies as may be necessary.

Penalties and remedies for violations.

Violating, causing or permitting the violation of, or otherwise disregarding any of the provisions of this chapter by any person, firm or corporation, whether as principal, agent, owner lessee, employee or other similar position, shall be unlawful and is subject to the following:

Criminal sanctions. .....Upon conviction, any such violation shall be a misdemeanor punishable by a fine of not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000.00). If the violation is uncorrected at the time of the conviction, the court may order the violator to abate or remedy the violation in compliance with the zoning ordinance, within a time period established by the court. Failure to remove or abate a zoning violation within the specified time period shall constitute a separate misdemeanor offense punishable by a fine of not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000.00), and any such failure during any succeeding ten (10) day period shall constitute a separate misdemeanor offense for each ten (10) day period punishable by a fine of not less than one hundred dollars ($100.00) nor more than one thousand five hundred dollars ($1,500.00).

Any conviction resulting from a violation of the provisions regulating the number of unrelated persons living as a "family" in a residential dwelling shall be punishable by a fine of up to two thousand dollars ($2,000.00). Failure to abate the violation within the specified time period shall be punishable by a fine of up to five thousand dollars ($5,000.00), and any subsequent failure during any succeeding ten (10) day period shall constitute a separate misdemeanor offense for each ten (10) day period punishable by a fine of up to seven thousand five hundred dollars ($7,500.00). However, no such fine shall accrue against an owner or managing agent of a single-family residential dwelling unit during the pendency of any legal action commenced by such owner or managing agent of such dwelling unit against a tenant to eliminate an overcrowding condition in accordance with Chapter 13 or Chapter 13.2 of Title 55, as applicable. A conviction resulting from a violation of provisions regulating the number of unrelated individuals in a residential dwelling unit shall not be punishable by a jail term.

Injunctive relief. .....Any violation or attempted violation of this chapter may be restrained, corrected or abated as the case may be by injunction or other appropriate relief.

Civil penalties.

Any person summoned or issued a ticket for a violation of this chapter listed in below may make an appearance in person or in writing by mail to the county treasurer prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability and pay the civil penalty established in this section for the offense charged, in lieu of criminal sanctions. Such persons shall be informed of their right to stand trial and that a signature to an admission of liability will have the same force and effect as a judgment of court. If a person charged with scheduled violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided by law.

ii.

A civil penalty is hereby established for a violation of any offense listed below in the amount of two hundred dollars ($200.00) for any one (1) violation for the initial summons and five hundred ($500.00) for each additional summons:

Constructing, placing, erecting, installing, maintaining, operating, or establishing an accessory structure or use in violation of Sec. 5-1004 et seq.

Constructing, placing, erecting or displaying a sign in violation of Sec. 9-1001 et seq.

Erecting, altering, or changing use or occupancy of any building, structure, or premises without first obtaining a zoning certificate or certificate of zoning compliance in violation of Sec. 1-1013.

Failure to perpetuate and maintain all landscaping, screening, and fencing materials required by this chapter in violation of Sec. 8-1012.

Operating, conducting or maintaining a home occupation in violation of Article IV.

iii.

Each day during which a violation is found to exist shall be a separate offense. However, in no event shall specified violations arising from the same set of operative facts be charged more frequently than once in a ten (10) day period and in no event shall a series of such violations result in civil penalties which exceed a total of more than five thousand dollars ($5,000.00). When such civil penalties total five thousand dollars ($5,000.00) or more, the violation may be prosecuted as a criminal misdemeanor.

iv.

The above provisions notwithstanding, civil penalties shall not accrue or be assessed during the pendency of the thirty (30) day appeal period allowable pursuant to the terms of Sec 1-1019(C).

No provisions herein shall be construed to allow the imposition of civil penalties for:

Enforcement of the Uniform Statewide Building Code;

Activities related to land development;

Violations of the erosion and sediment control ordinance;

Violations relating to the posting of signs on public property or public rights-of-way; or

Violations resulting in injury to any person or persons. (7-7-05; Ord. No. 2011-10-C, 6-16-11; 7-19-18; 11-16-23(2).)

Sec. 1-1014. - Transitional provisions.

Approved or pending zoning permits, site plans or building permits.

The requirements of this ordinance shall not apply to any structure or use established pursuant to a zoning permit or building permit issued prior to the effective date of this ordinance.

No zoning permit which was lawfully issued prior to the original effective date of this ordinance and which is in full force and effect at said date shall be invalidated by the passage of this ordinance, provided that all such permits shall expire not later than six (6) months from the effective date of this ordinance, unless actual construction has begun pursuant to the terms of said permit. See subsection 1013.E, expiration of permits, for further explanation of permit expiration.

The requirements of this ordinance shall not apply to any structure or use proposed to be established pursuant to a zoning permit, site plan or building permit application pending as of the effective date of the ordinance, provided the following conditions are met:

The requirements of the former Isle of Wight County Zoning Ordinance adopted and amendments thereof shall be met;

The zoning permit is issued within ninety (90) days after the effective date of this ordinance;

For the purpose of this section, a pending site plan or building permit application that does not contain all of the required information for a site plan approval shall not meet the intent of this section.

Approved and pending preliminary subdivision plats.

The requirements of this ordinance shall not apply to lots shown on a preliminary subdivision plat approved by the board of supervisors as of the effective date of this ordinance, provided the subdivider submits a final subdivision plat for all or a portion of the property within one (1) year of such approval and thereafter diligently pursues approval of the final subdivision plat.

The requirements of this ordinance shall not apply to lots shown on a preliminary subdivision plat pending approval as of the effective date of this ordinance, provided the following conditions are met:

The requirements of the former Isle of Wight County Zoning Ordinance and amendments thereof shall be met.

The preliminary subdivision plat is approved by the board of supervisors or the subdivision agent, as may be required, within ninety (90) days from the effective date of this ordinance. This time period may be extended by the board of supervisors upon written request.

A final subdivision plat is submitted for all or a portion of the property within one (1) year of such approval and thereafter the subdivider diligently pursues approval of the final subdivision plat.

Board of zoning appeals approvals.

The requirements of this ordinance shall not apply to any variance granted by the board of zoning appeals pursuant to the former ordinance as amended, provided any activity or development authorized by such approval shall commence within six (6) months of the effective date of this ordinance.

The requirements of this ordinance shall not apply to any case pending before the board of zoning appeals or courts of this state, provided that any activity or development authorized by the approval of any case shall commence within six (6) months of the effective date of the board or court decision.

Zoning in effect prior to effective date of this ordinance. .....All zoning district classifications and maps, variances and conditional uses, special uses, and all applications for such approvals, including the particular zoning district applicable to a lot, parcel, or tract of land, established under the prior ordinance, as amended, and as applied by legislative or administrative action thereunder, shall, as of the effective date of this ordinance, be of no further effect or validity, except to the extent specific continuing rights are granted by the terms of this ordinance. (7-7-05; 7-19-18.)

Sec. 1-1015. - Amendments.

Powers and duties of the planning commission. .....The planning commission shall have all the powers and duties of local planning commissions set forth in Sections 15.2-2211—15.2-2310 of the Code of Virginia (1950) as amended and any other powers and duties now or in the future delegated to local planning commissions, in order to promote the orderly development of the locality and its environs pursuant to Section 15.2-2210 of the Code of Virginia (1950), as amended and accomplish the objectives of Section 15.2-2200 of the Code of Virginia (1950), as amended.

General description. .....The board of supervisors hereby acknowledge as fact that sections of the county are rapidly changing from a rural area to residential, commercial, industrial and other urban uses and, although an attempt has been made in the comprehensive plan to anticipate and direct such growth along desirable lines, it is inevitable that no such plan will be perfect or everlastingly valid.

The board of supervisors, therefore, anticipates that the comprehensive plan will need amending from time to time as contemplated and authorized by Section 15.2-2223 et seq. of the Code of Virginia (1950), as amended, and that this ordinance and the zoning map must also be amended from time to time in order that it may continue to be in conformity with the expectations of the board of supervisors.

Findings for change of zoning map classification.

The zoning ordinance and districts shall be drawn and applied with reasonable consideration for the existing use and character of property, the comprehensive plan, the suitability of property for various uses, the trends of growth or change, the current and future requirements of the community as to land use for various purposes as determined by population and economic studies and other studies, the transportation requirements of the community, the requirements for airports, housing, schools, parks, playgrounds, recreation areas and other public services, the conservation of natural resources, the preservation of flood plains, the preservation of agricultural and forestal land, the conservation of properties and their values and the encouragement of the most appropriate use of land throughout the locality.

The fact that an application for reclassification complies with all of the specific requirements and purposes set forth in this ordinance shall not be deemed to create a presumption that the proposed reclassification and resulting development would, in fact, be compatible with surrounding land uses and is not, in itself, sufficient to require the granting of the application.

Filing procedures for amendment applications.

An application for text amendment may be initiated by resolution of the board of supervisors, by motion of the planning commission, or by application petition of any property owner(s) addressed to the board of supervisors. An application for text amendment will set forth the new text to be added and the existing text, if any, to be deleted or amended.

Zoning map amendment applications may be made by the board of supervisors, planning commission or by any property owner(s) or duly authorized agent. A map amendment may cover a single lot or a larger contiguous area.

All real estate taxes and any outstanding fees or charges must be current at such time an application is submitted for a zoning map amendment application.

Applications by property owners for change in zoning classification of property shall be accompanied by the prescribed application fee listed in Table 3 of this ordinance (Isle of Wight County Fee Schedule). Such application fee is nonrefundable and no application is considered complete until the fee is submitted. In addition, an application for rezoning not including the entire tract of land shall require a boundary plat to be prepared in accordance with the requirements of the subdivision ordinance, which must be recorded in the clerk's office of the circuit court of Isle of Wight County, Virginia, prior to the rezoning taking effect. If a boundary plat of the rezoned area is not recorded within twelve (12) months of the approval of same by the board of supervisors of Isle of Wight County, Virginia, for good cause shown, the zoning administrator may extend this time period beyond twelve (12) months after the applicant/property owner provides justification for the specified extension demonstrating that the applicant/property owner has diligently pursued the completion of the aforementioned requirements. If the zoning administrator cannot find just cause to grant the extension, then said rezoning will be null and void and the property will revert to the zoning classification existing prior to the action of the board of supervisors.

Proof of said recordation shall be presented to the zoning administrator prior to the issuance of any zoning permits for the property which has been rezoned.

An application petition by any property owner for an amendment or change in the zoning district classification of property which is substantially the same as any petition or application denied by the board of supervisors for the same subject property will not be reconsidered within one (1) year of said action of denial. The zoning administrator shall determine whether petitions or applications are substantially the same.

Amendment application.

Applications for text or map amendments shall be submitted on forms provided by and filed in the office of the zoning administrator.

A community impact statement shall be required for all application amendments for residential subdivisions of five (5) or more lots, planned development, commercial and industrial amendment applications, in accordance with subsection 1-1015.F.

Upon receipt of an ordinance amendment application, the zoning administrator shall review the application. If the zoning administrator finds all required information has been provided and the required fee paid, then the application shall be accepted.

All application files will be in the custody of the zoning administrator and will be open to public inspection during regular office hours. No application file will be removed from the custody of the zoning administrator's office. Any persons may, at their expense, obtain copies of any and all exhibits.

Upon determination by the zoning administrator that the application is complete in accordance with the herein requirements, the application shall be promptly submitted for comment and review to appropriate county departments and agencies and scheduled for review before the planning commission.

Fees for engineering/consultant review. If in the discretion of the county review of any request for a zoning map amendment by any outside engineering firm or other consultant expert in the field of the request is deemed necessary, the landowner/applicant shall be required to pay the fee for such review prior to consideration of the request by the county. The purpose of the review will be to ensure that the request complies with all regulations.

Community impact statement. .....A community impact statement shall address the following:

Adequacy of existing public facilities and services intended to serve the proposed development. Analysis shall be made of sewer, water, drainage, schools, fire stations, roadways, and other major locally financed facilities.

Additional on-site and off-site public facilities or services which would be required as a result of the development.

A traffic impact analysis is required for:

Any development proposed which will generate two hundred (200) average daily trips (ADT) or more based on vehicular trip generation rates as defined by the Institute of Transportation Engineers' most recent publication, "Trip Generation", or the Virginia Department of Transportation. The analysis must be prepared in accordance with VDOT's Traffic Impact Analysis Regulations and Administrative Guidelines and indicate the relationship of the proposed development on the cumulative effect of the traffic and road use for the arterial and secondary roads providing access to the development and any other road or intersection impacted by the development. The traffic impact analysis shall also include traffic data from other existing development to show the cumulative impact of traffic and road use for the affected roadways. Additional areas may be required to be incorporated into the analysis where traffic and accident data warrant.

At the request of the zoning administrator, when the proposed development is expected to significantly impact the vehicular movement on the arterial highways within the area.

A capital impact analysis prepared by county staff utilizing the capital impact model which shall be updated annually. If the model is not available, a fiscal impact analysis of the proposed development on the county shall be required and prepared by the applicant to be reviewed and approved by the zoning administrator when the proposal includes residential dwelling units. A fiscal impact analysis is optional when the proposal does not include any residential dwelling units. The analysis shall contain a comparison of the public revenues anticipated to be generated by the development and the anticipated capital, operations, maintenance and replacement costs for public facilities needed to service the project at the adopted county service standards, as well as employment opportunities to be generated by the development. The county shall consider the information provided by the applicant during the development review process; provided, however, that the fiscal impact analysis shall not serve as the sole basis for the approval or disapproval of an individual development proposal unless the health and safety of the community is affected by the inability to provide transportation, fire, police, emergency equipment and services, sewer or water to the proposed development.

Action of the planning commission for amendment applications.

All proposed amendments to this ordinance will be referred to the planning commission for review and a recommendation to the board of supervisors.

The zoning administrator or their designee shall present a report representing a review of the application by the staff of the department of planning and zoning and such other agencies as may be appropriate. The staff report may include, without limitation, the following matters: population change, availability of public facilities, present and future transportation patterns, compatibility with existing and proposed development for the area and the relationship of such proposed amendment to the comprehensive plan.

The planning commission shall hold at least one (1) public hearing on such proposed amendment after notice as required by Section 15.2-2204(A) of the Code Virginia (1950), as amended, and may make appropriate changes in the proposed amendment as a result of such hearing. Upon completion of this work, the planning commission shall present the proposed amendment to the board of supervisors together with its recommendations and appropriate explanatory materials within one hundred (100) days after its first meeting following receipt of the proposed amendment.

Action of the board of supervisors for amendment applications.

Before considering any amendment, the board of supervisors shall hold at least one (1) public hearing thereon, pursuant to public notice as required by Section 15.2-2204(A) of the Code of Virginia (1950), as amended, after which the board of supervisors may make appropriate changes or corrections in the proposed amendment; provided, however, that no additional land may be zoned to a different classification than was contained in the public notice without an additional public hearing after notice required by Section 15.2-2204(A) of the Code of Virginia (1950), as amended. An affirmative vote of at least a majority of the members of the board of supervisors shall be required to amend this ordinance or the zoning map.

The record in all zoning cases shall include the application, all documents or communications submitted regarding the application, the recorded testimony received at the hearing, any reports or communications to or from any public officials or agency concerning the application, the recommendation of the planning commission, and the final decision of the board of supervisors. The record shall be open to public inspection and shall be maintained by the zoning administrator. The burden of proof for any zoning change shall be upon the applicant.

Continuance and withdrawal of amendment applications.

The applicant may withdraw, in writing, a text or map amendment case from consideration prior to the public hearing of the planning commission or board of supervisors. Any new application for rezoning of said property shall be subject to all procedures and fees of an original application.

If a request by an applicant for continuance of a public hearing on a map amendment is granted after the required public notice has been given, the applicant shall pay an additional fee for another public notice.

Nothing shall be construed as limiting the right of the planning commission or the board of supervisors to continue amendment cases on its own initiative. (7-7-05; Ord. No. 2011-1-C, 1-6-11; 7-19-18; 7-18-19.)

Sec. 1-1016. - Conditional zoning.

In order to provide a more flexible and adaptable zoning method to permit differing land uses and to recognize effects of change, conditional zoning is permitted. That is, a zoning reclassification may be allowed subject to certain conditions proffered by the zoning applicant for the protection and well-being of the community that are not generally applicable to land similarly zoned.

For purposes of this section, the following terms shall have the meanings set forth as follows:

New residential development\ means any construction or building expansion on residentially zoned property, including a residential component of a mixed-use development, that results in either one (1) or more additional residential dwelling units or, otherwise, fewer, residential dwelling units, beyond what may be permitted by right under the then-existing zoning of the property, when such new residential development requires a rezoning or proffer condition amendment.

New residential use\ means any use of residentially zoned property that requires a rezoning or that requires a proffer condition amendment to allow for new residential development.

Offsite proffer\ means a proffer addressing an impact outside the boundaries of the property to be developed and shall include all cash proffers.

Onsite proffer\ means a proffer addressing an impact within the boundaries of the property to be developed and shall not include any cash proffers.

Proffer condition amendment\ means an amendment to an existing proffer statement applicable to a property or properties.

Public facilities\ means public transportation facilities, public safety facilities, public school facilities, or public parks.

Public facility improvement\ means an offsite public transportation facility improvement, a public safety facility improvement, a public school facility improvement, or an improvement to or construction of a public park. No public facility improvement shall include any operating expense of an existing public facility, such as ordinary maintenance or repair, or any capital improvement to an existing public facility, such as a renovation or technology upgrade, that does not expand the capacity of such facility. For purposes of this definition, the term "public park" shall include playgrounds and other recreational facilities.

Public safety facility improvement\ means construction or new law enforcement, fire, emergency medical, and rescue facilities or expansion of existing public safety facilities, to include all buildings, structures, parking, and other costs directly related thereto.

Public school facility improvement\ means construction of new primary and secondary public schools or expansion of existing primary and secondary public schools, to include all buildings, structures, parking, and other costs directly related thereto.

Public transportation facility improvement\ means (i) construction of new roads; (ii) improvement or expansion of existing roads, and related appurtenances as required by applicable standards of the Virginia Department of Transportation; and (iii) construction, improvement, or expansion of buildings, structures, parking, and other facilities directly related to transit.

Residentially zoned property\ means property zoned or proposed to be zoned for either single-family or multifamily housing.

The owner of land seeking a rezoning may provide, by voluntarily proffering in writing, reasonable conditions as part of the application for rezoning, for which such conditions or proffers are in addition to the regulations provided for the zoning district. Proffered conditions shall constitute a part of the rezoning or amendment to the zoning map and shall remain in effect even if the property is sold.

Conditional uses may be considered as a permitted use and granted by the board of supervisors when included as a part of a conditional zoning amendment, and shall not require a separate conditional use permit application.

The terms of all proffered conditions must be submitted in writing by the owner ten (10) days prior to a public hearing before the board of supervisors provided that the conditions are in accordance with the following:

The rezoning itself gives rise to the need for the conditions;

Such conditions have a reasonable relation to the rezoning; and;

All such conditions are in conformity with the Isle of Wight County Comprehensive Plan.

The zoning administrator shall have sole authority to meet with any applicant to discuss proffered conditions. No such meeting with the zoning administrator shall occur without the presence of the county attorney to ensure compliance with the restrictions set forth in Section 15.2-2303.4 of the Code of Virginia (1950, as amended).

For new residential developments and new residential uses submitted after July 1, 2016, the determination as to reasonableness and acceptability of voluntary proffers will be evaluated by the planning commission and board of supervisors based upon the following criteria:

The voluntary proffer addresses an impact that is specifically attributable to the proposed new residential development or other new residential use applied for; and

The voluntary offsite proffer addresses an impact to an offsite public facility, such that (a) the new residential development or new residential use creates a need, or an identifiable portion of a need, for one (1) or more public facility improvements in excess of existing public facility capacity at the time of the rezoning or proffer conditions amendment; and (b) each such new residential development or new residential use applied for receives a direct and material benefit from a proffer made with respect to any such public facility improvements. For purposes of this subsection, the planning commission and board of supervisors may base their assessment of public facility capacity on the projected impacts specifically attributable to the new residential development or new residential use.

There shall be no amendment or variation of proffered conditions as part of an approved rezoning until after a public hearing before the board of supervisors advertised pursuant to the provisions of this ordinance. However, where an amendment to the proffered conditions is requested by the applicant, and where such amendment does not affect conditions of use or density, the board of supervisors may waive the requirements of a public hearing. Once so amended, the proffered conditions shall continue to be an amendment to the ordinance and may be enforced by the zoning administrator pursuant to the provisions of the ordinance.

The zoning administrator is vested with all necessary authority on behalf of the governing body of the locality to administer and enforce conditions attached to a rezoning or amendment to a zoning map. Any zoning applicant or any other person who is aggrieved by a decision of the zoning administrator may petition the governing body for review of the decision of the zoning administrator. All petitions for review shall be filed with the zoning administrator and with the clerk of the governing body within thirty (30) days from the date of the decision for which review is sought and shall specify the grounds upon which the petitioner is aggrieved. A decision by the governing body on an appeal taken pursuant to this section 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 written notice of the zoning violation, written determination, or other appealable decision. An aggrieved party may petition the circuit court for review of the decision of the governing body on an appeal taken pursuant to this section. Every action contesting a decision of the local governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception shall be filed within thirty (30) days of the decision with the Isle of Wight County Circuit Court. Nothing herein shall be construed to create any new right to contest the action of the local governing body. (7-7-05; 9-24-09; Ord. No. 2011-1-C, 1-6-11; Ord. No. 2013-3-C, 4- 18-13; 10-20-16; 7-19-18; 7-18-19.)

Sec. 1-1017. - Conditional uses.

General description.

The board of supervisors after public notice and hearing and upon recommendation by the planning commission may authorize the issuance of conditional use permit in harmony with the general purpose and intent, as hereinafter provided, and subject to appropriate conditions.

If the board of supervisors shall determine that a conditional use provided for in this ordinance will conform to the general character of the neighborhood to which the proposed use will apply and that the public health, morals, safety and general welfare of such neighborhood will be secure by the granting of such conditional use, subject to the safeguards imposed by the board, then the board of supervisors may authorize the issuance of a permit. Such permits may be granted for a temporary period or permanently, as determined by the board and, if granted for a temporary period, application for extension of same will be subject to a public hearing as required in the original application.

Initiation of conditional use.

Any property owner or other person with an enforceable legal interest in a property may file an application to use such land for one (1) or more of the conditional uses provided for in the zoning district classification in which the land is located.

All real estate taxes and any outstanding fees or charges must be current at such time an application is submitted for a conditional use permit.

Application for conditional use. .....An application for conditional use shall be filed with the zoning administrator on a form prescribed by the zoning administrator. The application shall be accompanied by such plans and/or data as necessary, and shall include a statement in writing by the applicant and adequate evidence showing that the proposed use will conform to the standards set forth. Such application shall be forwarded from the zoning administrator to the planning commission for review and recommendation. The planning commission shall conduct a public hearing and render a recommendation on the application, which shall be forwarded to the board of supervisors.

Fees. .....An application for conditional use permit shall be accompanied by the prescribed application fee listed in Table 3 of this ordinance (Isle of Wight County Fee Schedule).

Fees for engineering/consultant review. .....If in the discretion of the county review of any request for a conditional use permit by any outside engineering firm or other consultant expert in the field of the request is deemed necessary, the landowner/applicant shall be required to pay the fee for such review prior to consideration of the request by the county. The purpose of the review will be to ensure that the request complies with any applicable regulations.

Planning commission recommendation. .....The planning commission, after public notice and hearing, shall forward its recommendation to the board of supervisors which in turn shall hold another hearing after notice as provided for in section 1-1021, public notification for amendment applications, use permits, plan amendments, and variances, before making its decision.

The board of supervisors and conditional use permits. .....The board of supervisors after public notice and hearing and upon recommendation by the planning commission may authorize the issuance of conditional use permits in harmony with the general purpose and intent, as hereinafter provided, and subject to appropriate conditions.

Standards for review of a conditional use application. .....The planning commission and board of supervisors shall consider the following criteria before the granting of a conditional use permit:

That the establishment, maintenance, and operation of the conditional use will not be detrimental to or endanger the public health, safety, and general welfare;

That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially impair the use of other property within the immediate proximity;

That adequate utilities, water, sewer or septic system, access roads, storm drainage and/or other necessary public facilities and improvements have been or will be provided;

That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion on the public streets;

That the proposed conditional use is not contrary to the goals and objectives of the Isle of Wight County Comprehensive Plan;

That the conditional use shall, in all other respects, conform to the applicable regulations of the zoning district classification in which it is located and to the special requirements established for the specific use;

That the use(s) at the location proposed will not result in a multiplicity or saturation of similar uses in the same general neighborhood of the proposed use.

Conditions and guarantees. .....In addition to the specific standards contained in article V, supplementary use regulations, the other guidelines and criteria described in this ordinance, and other relevant consideration, the board may impose conditions or limitations on any approval, including the posting of performance guarantees. Such conditions may include, but are not necessarily limited to:

The number of persons living or working in the immediate area and the proposed hours of operation, as may applicable;

Traffic conditions, including facilities for pedestrians, such as sidewalks and parking facilities; the access of vehicles to roads; peak periods of traffic; and proposed roads, but only if construction of such roads will commence within the reasonably foreseeable future;

The orderly growth of the neighborhood and community and the fiscal impact on the county;

The effect of odors, dust, gas, smoke, fumes, vibration, glare, and noise upon the use of surrounding properties;

Facilities for police, fire protection, sewerage, water, trash and garbage collection and disposal, and the ability of the county or persons to supply such services;

The degree to which the development is consistent with generally accepted engineering and planning principles and practices;

The structures in the vicinity such as schools, houses of worship, theaters, hospitals, and similar places of public use;

The purposes set forth in this ordinance, the county's comprehensive plan, and related studies for land use, roads, parks, schools, sewers, water, population, recreation, and the like;

The environmental impact, the effect on sensitive natural features, and opportunities for recreation and open space;

10.

The preservation of cultural and historic resources or landmarks.

Other laws applicable. .....The granting of a conditional use does not exempt the applicant from obtaining a zoning permit certificate or complying with all other requirements of this ordinance or any applicable county, state, or federal law.

Denial of a conditional use permit. .....If the board of supervisors finds that in an application for a conditional use provided in this ordinance and requested in said application will not conform to the general character of the neighborhood to which the proposed use will apply, and that the public health, safety and general welfare of such neighborhood will not be secure by granting such conditional use, then the board of supervisors may deny such application, anything in this ordinance to the contrary notwithstanding.

Effect of denial of a conditional use.

No application for a conditional use which has been denied wholly or in part by the board of supervisors shall be resubmitted for a period of one (1) year from the date of said order of denial, except on the grounds of new evidence or proof of change of conditions found to be valid by the board of supervisors.

The board of supervisors may, at any time, consider a new application affecting the same property as an application previously denied. A new application is one that differs in some substantial way from the one previously considered, as determined by the zoning administrator.

Scope of approval.

Unless otherwise specified by the conditions of the permit, failure to establish the conditional use authorized by the permit within two (2) years from the date of approval by the board of supervisors shall cause the permit to terminate and to become void.

The provisions of this section are cumulative with the power of injunction and other remedies afforded by law to the county and, further, shall not be so interpreted as to vest in any applicant any rights inconsistent or in conflict with the power of the county to rezone the subject property or to exercise any other power provided by law.

Once a conditional use permit is granted, such use may be enlarged, extended, increased in intensity or relocated only in accordance with the provisions of this section unless the board of supervisors, in approving the initial permit, has specifically established alternative procedures for consideration of future expansion or enlargement. The provisions of subsection 1-1020.G, relative to expansion of nonconforming uses shall not be construed to supersede this requirement unless the specially permitted use for which the permit was initially granted is in fact, no longer a use permitted as of right or as a conditional use in the zoning district in which located.

Where any conditional use is discontinued for any reason for a continuous period of two (2) years or more, the conditional use permit shall terminate and become null and void. A use shall be deemed to have been "discontinued" when the use shall have ceased for any reason, regardless of the intent of the owner or occupier of the property to reinstitute the use at some later date. The approval of a new conditional use permit shall be required prior to any subsequent reinstatement of the use.

Revocation of conditional use permits.

The board of supervisors may, by resolution, initiate a revocation of a conditional use permit. When initiated, the revocation process shall be handled as would a new application for a conditional use permit.

After review by the zoning administrator and consideration and recommendation by the planning commission, the governing body shall act on the proposal to revoke the conditional use permit. Grounds for revocation shall include, but not be limited to, the following:

A change in conditions affecting the public health, safety and welfare since the adoption of the conditional use permit; or

Repeated violations of this article, including any conditions attached to the conditional use permit, by the owner/operator of the use; or

Fraudulent, false or misleading information or an error or mistake in fact supplied by the applicant (or his agent) for the conditional use permit.

Violations. .....If it is determined that violations exist with regard to an approved conditional use permit, the following procedure shall be followed: After review and recommendation by the planning commission, the board of supervisors shall act on the proposal to revoke the conditional use permit. Grounds for revocation shall include, but not be limited to, the following:

A change in conditions affecting the public health, safety and general welfare since adoption of the conditional use permit; or

Repeated violations, including any conditions attached to the conditional use permit owner/operator of the use; or

Fraudulent, false or misleading information or an error or mistake in fact supplied by the applicant (or his agent) for the conditional use permit. (7-7-05; Ord. No. 2013-3-C, 4-18-13; 7-19-18.)

Sec. 1-1018. - Special use permits for uses not provided for.

General description. .....If, in any district established under this ordinance, a use is not specifically permitted and an application is made to the zoning administrator for such use, the zoning administrator shall refer the application to the planning commission as a special use permit. The planning commission shall make its recommendation to the board of supervisors after holding a public hearing on the said application.

The board of supervisors may, after receiving the recommendations from the planning commission and after holding a public hearing on said application, issue a special use permit for said use for a temporary period or permanently, as determined by the board, upon such conditions as the board may deem necessary to safeguard and protect the public health, morals, safety and general welfare of the neighborhood or area within the proposed use will be located.

Initiation of special use permit.

The property owner or other person with an enforceable legal interest in the property may file an application for a special use permit.

All real estate taxes and any outstanding fees or charges must be current at such time an application is submitted for a special use permit.

Application fees. .....An application for a special use permit shall be accompanied by the prescribed application fee listed in Table 3 of this ordinance (Isle of Wight County Fee Schedule).

Application for special use. .....An application for special use shall be filed with the zoning administrator on a form prescribed by the zoning administrator. The application shall be accompanied by such plans and/or data as necessary, and shall include a statement in writing by the applicant and adequate evidence showing that the proposed use will conform to the standards set forth. Such application shall be forwarded from the zoning administrator to the planning commission for review and recommendation. The planning commission shall conduct a public hearing and render a recommendation on the application, which shall be forwarded to the board of supervisors.

Fees for engineering/consultant review. .....If in the discretion of the county review of any request for a special use permit by any outside engineering firm or other consultant expert in the field of the request is deemed necessary, the landowner/applicant shall be required to pay the fee for such review prior to consideration of the request by the county. The purpose of the review will be to ensure that the request complies with any applicable regulations.

The board of supervisors and special use permits. .....The board of supervisors after public notice and hearing and upon recommendation by the planning commission may authorize the issuance of special use permits in harmony with the general purpose and intent, as hereinafter provided, and subject to appropriate conditions.

Standards for review of a special use application. .....The planning commission and board of supervisors shall consider the following criteria before the granting of a special use permit:

That the establishment, maintenance, and operation of the special use will not be detrimental to or endanger the public health, safety, and general welfare;

That the special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially impair the use of other property within the immediate proximity;

That adequate utilities, water, sewer or septic system, access roads, storm drainage and/or other necessary public facilities and improvements have been or will be provided;

That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion on the public streets;

That the proposed special use is not contrary to the goals and objectives of the Isle of Wight County Comprehensive Plan;

That the special use shall, in all other respects, conform to the applicable regulations of the zoning district classification in which it is located and to the special requirements established for the specific use;

That the use(s) at the location proposed will not result in a multiplicity or saturation of similar uses in the same general neighborhood of the proposed use.

The number of persons living or working in the immediate area and the proposed hours of operation, as may be applicable;

The orderly growth of the neighborhood and community and the fiscal impact on the county;

The effect of odors, dust, gas, smoke, fumes, vibration, glare, and noise upon the use of surrounding properties;

Facilities for police, fire protection, sewerage, water, trash and garbage collection and disposal, and the ability of the county or persons to supply such services;

The degree to which the development is consistent with generally accepted engineering and planning principles and practices;

The structures in the vicinity such as schools, houses of worship, theaters, hospitals, and similar places of public use;

The purposes set forth in this ordinance, the county's comprehensive plan, and related studies for land use, roads, parks, schools, sewers, water, population, recreation, and the like;

The environmental impact, the effect on sensitive natural features, and opportunities for recreation and open space;

10.

The preservation of cultural and historic resources or landmarks.

Other laws applicable. .....The granting of a special use does not exempt the applicant from obtaining a zoning permit certificate or complying with all other requirements of this ordinance or any applicable county, state, or federal law.

Denial of a special use permit. .....If the board of supervisors finds that in an application for a special use provided in this ordinance and requested in said application will not conform to the general character of the neighborhood to which the proposed use will apply, and that the public health, safety and general welfare of such neighborhood will not be secure by granting such special use, then the board of supervisors may deny such application, anything in this ordinance to the contrary notwithstanding.

Effect of denial of a special use.

No application for a special use which has been denied wholly or in part by the board of supervisors shall be resubmitted for a period of one (1) year from the date of said order of denial, except on the grounds of new evidence or proof of change of conditions found to be valid by the board of supervisors.

Scope of approval.

Unless otherwise specified by the conditions of the permit, failure to establish the special use authorized by the permit within two (2) years from the date of approval by the board of supervisors shall cause the permit to terminate and to become void.

Once a special use permit is granted, such use may be enlarged, extended, increased in intensity or relocated only in accordance with the provisions of this section unless the board of supervisors, in approving the initial permit, has specifically established alternative procedures for consideration of future expansion or enlargement. The provisions of subsection 1-1020.G, relative to expansion of nonconforming uses shall not be construed to supersede this requirement unless the specially permitted use for which the permit was initially granted is in fact, no longer a use permitted as of right or as a special use.

Where any special use is discontinued for any reason for a continuous period of two (2) years or more, the special use permit shall terminate and become null and void. A use shall be deemed to have been "discontinued" when the use shall have ceased for any reason, regardless of the intent of the owner or occupier of the property to reinstitute the use at some later date. The approval of a new special use permit shall be required prior to any subsequent reinstatement of the use.

Revocation of special use permits.

The board of supervisors may, by resolution, initiate a revocation of a special use permit. When initiated, the revocation process shall be handled as would a new application for a special use permit.

After review by the zoning administrator and consideration and recommendation by the planning commission, the governing body shall act on the proposal to revoke the special use permit. Grounds for revocation shall include, but not be limited to, the following:

A change in conditions affecting the public health, safety and welfare since the adoption of the special use permit; or

Repeated violations of this article, including any conditions attached to the special use permit, by the owner/operator of the use; or

Fraudulent, false or misleading information or an error or mistake in fact supplied by the applicant (or his agent) for the special use permit.

Violations. .....If it is determined that violations exist with regard to an approved special use permit, the following procedure shall be followed: After review and recommendation by the planning commission, the board of supervisors shall act on the proposal to revoke the special use permit. Grounds for revocation shall include, but not be limited to, the following:

A change in conditions affecting the public health, safety and general welfare since adoption of the special use permit; or

Repeated violations, including any conditions attached to the special use permit owner/operator of the use; or

Fraudulent, false or misleading information or an error or mistake in fact supplied by the applicant (or his agent) for the special use permit. (7-7-05; Ord. No. 2013-3-C, 4-18-13; 7-19-18.)

Sec. 1-1019. - Provisions for appeals, variances, and interpretations.

Boards of zoning appeals generally.

(1)

A board of zoning appeals, as provided for in Section 15.2-2308 of the Code of Virginia (1950), as amended, consisting of five (5) residents of the County of Isle of Wight, shall be appointed by the circuit court judge of the County of Isle of Wight.

(2)

The terms of office shall be for five (5) years provided, however, that the members serving on the board of zoning appeals on the effective date of this ordinance shall continue on such board and shall serve for their remaining respective terms. The secretary of the board of zoning appeals 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 of Isle of Wight except that one (1) may be a member of the planning commission of the County of Isle of Wight. A member whose term expires shall continue to serve until his successor is appointed and qualifies.

(3)

The board shall elect from its own membership its officers who shall serve annual terms as such and may succeed themselves. For the conduct of the hearing and the taking of any action, the quorum shall not be 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 the ordinances of the County of Isle of Wight and the general laws of the Commonwealth of Virginia. The board shall keep a full public record of its proceedings and shall submit a report of its activities to the governing body at least once each year.

(4)

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.

(5)

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 a hearing held following at least fifteen (15) days' notice.

Powers of the board of zoning appeals. .....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 any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the board's judgement 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 his 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, 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)

Notwithstanding any other provision of law, general or special, to grant upon appeal or original application in specific cases a variance, that 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 and the criteria set out in this section. 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, and

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;

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

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;

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

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 15.2-2309 of the Code of Virginia or the process for modification of a zoning ordinance pursuant to Section 15.2-2286 of the Code of Virginia at the time of the filing of the variance application.

No variance shall be considered except after notice and hearing as required by Section 15.2-2204 of the Code of Virginia. 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. 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 ordinance. 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 Section 15.2-2204 of the Code of Virginia. 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 the question, and after public hearing with notice as required by Section 15.2-2204 of the 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 question. 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. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.

(5)

No provision 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 local ordinances duly adopted by the governing body.

(6)

To hear and decide applications for special exceptions as may be authorized in the ordinance. The board may impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. No special exception may be granted except after notice and hearing as provided by Section 15.2-2204 of the Code of Virginia. 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.

(7)

To revoke a special exception previously granted by the board of zoning appeals if the board determines that there has not been compliance with the terms or conditions of the permit. No special exception may be revoked except after notice and hearing as provided by Section 15.2-2204 of the Code of Virginia. 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. If a governing body reserves unto itself the right to issue special exceptions pursuant to Section 15.2-2286 of the Code of Virginia, and, if the governing body determines that there has not been compliance with the terms and conditions of the permit, then it may also revoke special exceptions in the manner provided.

(8)

The board by resolution may fix a schedule of regular meetings, and may also fix the day or days to which any meeting shall be continued if the chairman, or vice-chairman if the chairman 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 Section 15.2-2312 [of the Code of Virginia] shall be conducted at the continued meeting and no further advertisement is required.

Appeals.

(1)

An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the county or municipality 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. 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 thirty (30) days in accordance with this section, and that the decision shall be final and unappealable if not appealed within thirty (30) days. The appeal period shall not commence until such statement is given. Such appeal shall be taken within thirty (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 zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

(2)

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 permit 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.

(3)

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 sixty (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 sixty-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.

(4)

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.

Variances.

(1)

The board of zoning appeals is authorized to grant variances from the strict application of these regulations 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 this ordinance, or where by reason of exceptional topographic conditions or extraordinary situation or condition of such piece of property, or of the use or development of property immediately adjacent thereto, the strict application of the terms of this ordinance would unreasonably restrict the utilization of the property, as distinguished from a special privilege or convenience sought by the applicant; provided, that all variances shall not be contrary to the purpose of this ordinance.

(2)

The board of zoning appeals shall not authorize a variance unless it finds:

(A)

That the strict application of this ordinance would unreasonably restrict the utilization of the property;

(B)

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

(C)

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;

(D)

No such variance shall be authorized except after notice and hearing as required by Sections 15.2-2204(A), 15.2-431 of the Code of Virginia (1950), as amended.

(E)

No variance shall be authorized unless the board of zoning appeals finds that the condition or situation of the property concerned or the intended use of the property 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 ordinance.

(F)

In authorizing a variance, the board of zoning appeals may impose such conditions regarding the location, character, and other features of the proposed structure for 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.

(G)

A variance may be issued for a specified duration or an indefinite duration.

(H)

The granting of a variance does not exempt the applicant from complying with all other requirements of this ordinance or any applicable county, state, or federal law.

(3)

Whenever the board of zoning appeals disapproves an application for a variance on any basis other than the failure of the applicant to submit a complete application, such action may not be reconsidered by the respective board for a period of one (1) year unless the applicant clearly demonstrates that:

(A)

Circumstances affecting the property which is the subject of the application have substantially changed; or

(B)

New information is available that could not with reasonable diligence have been presented at a previous hearing. A request to be heard on this basis must be filed with the zoning administrator. Such a request does not extend the period within which an appeal must be taken.

(C)

The board of zoning appeals may at any time consider a new application affecting the same property as an application previously denied. A new application is one that differs in some substantial way from the one previously considered, as determined by the zoning administrator.

(4)

The burden of presenting evidence sufficient to allow the board of zoning appeals to reach a favorable conclusion, as well as the burden of persuasion on those issues referenced herein, remains the responsibility of the applicant seeking the variance.

Interpretations.

(1)

The board of zoning appeals is authorized to interpret the zoning map and to pass upon disputed questions of lot or zoning boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the zoning administrator, they shall be handled as provided in subsection 1-1019.C, appeals.

(2)

An application for a map interpretation shall be submitted to the board of zoning appeals by filing a copy of the application with the zoning administrator. The application shall contain sufficient information to enable the board to make the necessary interpretation.

(3)

Where uncertainty exists as to the boundaries of zones as shown on the official zoning map, the following rules shall apply:

(A)

Boundaries indicated as approximately following the centerline of alleys, streets, highways, streams, or railroads shall be construed to follow such centerline.

(B)

Boundaries indicated as approximately following lot lines, corporate limits of a municipality and county boundary lines shall be construed as following such lines, limits or boundaries.

(C)

Boundaries indicated as following shorelines shall be construed to follow such shorelines, and in the event of change in the shoreline shall be construed as following such shorelines.

(D)

Where a zoning boundary divides a lot or where distances are not specifically indicated on the official zoning map, the boundary shall be determined by measurement, using the scale of the official zoning map.

(E)

Where any street or alley is hereafter officially vacated or abandoned, the regulations applicable to each parcel of abutting property shall apply to that portion of such street or alley added thereto by virtue of such vacation or abandonment.

(4)

Interpretations of the location of floodway and floodplain boundary lines or boundaries shall be made by the zoning administrator.

Hearing required on appeals and variances.

(1)

Before making a decision on an appeal or an application for a variance, the board of zoning appeals shall hold a hearing on the appeal or application and shall give due notice to the parties of interest a public notice as required by Sections 15.2-431, 15.2-2204(A) of the Code of Virginia (1950), as amended.

(2)

The board of zoning appeals 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 reserve 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 members 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 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 zoning administrator and shall be public record. The chairman of the board, or in his absence the vice-chairman, may administer oaths and compel the attendance of witnesses.

(3)

The hearing shall be open to the public and all people aggrieved by the outcome of the appeal or application shall be given an opportunity to present testimony and ask questions of persons who testify.

(4)

The board of zoning appeals may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made. In no event shall a continuance of the hearing extend the time frame for rendering a decision beyond the maximum days permitted by statute and subsection F(2), hearing required on appeals, and variances of this ordinance.

Appeal of decision of board of zoning appeals.

(1)

Any person or persons jointly or severally aggrieved by a 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 of Isle of Wight a petition specifying the grounds on which aggrieved within thirty (30) days after the final decision by the board of zoning appeals.

(2)

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.

(3)

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 ground of the decision appealed from and shall be verified.

(4)

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

(5)

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 therefrom.

Taxes and fees must be paid.

(1)

Taxes. .....All real estate taxes and any outstanding fees or charges must be current at such time an application is submitted for all variance or appeal.

(2)

Fees. .....An application for a variance or appeal shall be accompanied by the prescribed application fee in accordance with Table 3 (Isle of Wight County Fee Schedule). No application shall be considered complete until the fee is paid.

(3)

Fees for engineering/consultant review. .....If, in the discretion of the county review of any request for a variance or appeal by any outside engineering firm or other consultant expert in the field of the request is deemed necessary, the landowner/applicant shall be required to pay the fee for such review prior to consideration of the request by the county. (7-7-05; 9-24-09; Ord. No. 2011-14-C, 8-4-11; Ord. No. 2013-3-C, 4-18-13; 11-19-15; 7-19-18.)

Sec. 1-1020. - Nonconforming situations.

General description.

(1)

If, within zoning district classifications established by this ordinance, or amendments subsequently adopted, there exist lots, buildings, structures or uses of land which were lawful prior to the enactment of this ordinance, or subsequent amendments, and which would not conform to regulations and restrictions under the terms of this ordinance or amendments thereto, or which could not be built or used under this ordinance, such nonconformities may continue to exist subject to the regulations contained in this section.

(2)

The purpose of this article is to restrict nonconforming buildings, structures, and uses, and to specify those circumstances and conditions under which such nonconforming buildings, structures, and uses shall be permitted to continue.

Changes in district boundaries. .....Whenever the boundaries of a district are changed, any uses of land or buildings, which become nonconforming as a result of such changes shall become subject to the provisions of this section.

Continuation.

(1)

Nothing in this ordinance shall be construed to authorize the impairment of any lawful nonconforming situation; except, that land, buildings and structures and the uses thereof which do not conform to the regulations and restrictions prescribed for the district in which they are situated may be continued only so long as the existing or a more restricted use continues and such use is not discontinued for more than two (2) years, and so long as the buildings or structures are maintained in their then structural condition; and that the uses of such buildings or structures are continued in their then intensity and condition; and that the uses of such buildings or structures shall conform to such regulations whenever they are enlarged, extended, are reconstructed or structurally altered; and no nonconforming building or structure may be moved on the same lot or to any other lot which is not properly zoned to permit such nonconforming use.

(2)

Any lot reduced in area or yard setback to a nonconforming lot by reason of a realignment or dedication of any existing public highway or by reason of a condemnation proceeding, is considered to be a nonconforming lot of record. Any lawful structure on the lot before such reduction in lot size occurs, by which such action is rendered nonconforming, shall be considered a legal nonconforming structure and may continue. However, this provision does not apply to the creation of new streets in a proposed subdivision.

(3)

Nothing in this section shall be construed to prevent the land owner or home owner from removing a valid nonconforming manufactured home from a mobile or manufactured home park and replacing that home with another comparable manufactured home that meets the current HUD manufactured housing code. In such mobile or manufactured home park, a single-section home may replace a single-section home and a multisection home may replace a multisection home. The owner of a valid nonconforming mobile or manufactured home not located in a mobile or manufactured home park may replace that home with a newer manufactured home, either single-section or multisection, that meets the current HUD manufactured housing code. Any such replacement home shall retain the valid nonconforming status of the prior home pursuant to Section 15.2-2307 of the Code of Virginia.

(4)

The burden of proof for determining nonconforming status shall be with the applicant.

Verification of nonconforming uses prior to any changes in nonconforming use or structure.

(1)

Prior to the approval of any change in, enlargement, extension, are reconstruction, or structural alteration of, a nonconforming use or structure, the lawful status of the use shall be verified in writing by the zoning administrator. The zoning administrator may also verify in writing the lawful status of a nonconforming use not proposed to change upon the request of the owner of the property on which the use or structure is located or upon the request of a neighboring property owner.

(2)

In verifying the lawful status of a nonconforming use, the zoning administrator shall determine the following:

(A)

Whether the use, in fact, is a lawful nonconforming use as defined by this article; and, if so, then:

(B)

The location and floor area (in square feet) of all buildings associated with the nonconforming use; and

(C)

The location, use and size of all structures other than buildings associated with the nonconforming use; and

(D)

The area of land (in square feet) devoted to all aspects of the nonconforming use (including buildings, parking, outside storage, travel ways, open spaces, etc.); and

(E)

A description of the principal use(s) and all accessory uses that make up the lawful nonconforming use as a whole.

(3)

Classification of use. If such determination results in the use, or any portion, being verified as a lawful nonconforming use, the zoning administrator shall classify the overall nonconforming use of the property based on the zoning district in which the use would be a permitted use. If the use would be permitted in more than one (1) zoning district, the assigned classification shall be based on the zoning district that is the least intense of all districts where the use would be permitted. The assignment of such a zoning classification shall not operate to change the zoning of the property on which the nonconforming use is located, but shall be used only in determining the applicable criteria for change of the nonconformance use under the provisions of subsection 1-1020.E, permitted changes of nonconforming uses and structures.

(4)

Basis for the zoning administrator's decision. The decision of the zoning administrator shall be based on information provided by the owner of the property on which the nonconforming use is located, on information provided by other persons with knowledge of the property and on any other information available to the zoning administrator as public record. Such information may include, but shall be limited to, permits, licenses, tax records, receipts, business records, photographs, plats, plans, bills, utility information, assessment information, and sworn affidavits from individuals with personal knowledge of the use and/or the property on which the use is located.

Permitted changes of nonconforming uses and structures.

(1)

If the proposed change in use is from an existing nonconforming use to a use that will conform to a use permitted in the zoning district in which the property is located, the property owner must make application for the change in use in accordance with section 5-1003, change in use, and subsection 1-1013.A.(1), zoning permit required and occupancy permit guidelines, in the same manner as authorized to make an initial use of a vacant lot.

If, and in the event, conformity of land use with this ordinance is achieved, the property may not later revert to the nonconforming use.

(2)

If the intended change in use is to a principal use that is permitted by right in the zoning district classification where the property is located, but all of the requirements of this ordinance applicable to that use cannot be complied with, then an exception or waiver, as required by the applicable sections of this ordinance shall be obtained from the appropriate approval authority. In considering such requests, financial hardship shall not be considered as justification for the exception or waiver, if approved.

(3)

A nonconforming use or structure may be changed, enlarged, extended, are reconstructed or structurally altered only in accordance with the provisions of this article and subject to the appropriate approvals (including, among others, verification of the nonconforming use, site plan approval, building permit approval and zoning approval under this ordinance) otherwise required by law.

(4)

If a use does not conform to the zoning prescribed for the district in which such use is situated, and if:

(A)

A business license was issued for such use; and

(B)

The holder of such business license has operated continuously in the same location for at least fifteen (15) years and has paid all local taxes related to such use;

The county shall permit the holder of such business license to apply for a rezoning or a conditional/special use permit without charge by the county or any agency affiliated with the county for fees associated with such filing.

Repairs and maintenance. .....A nonconforming structure may be repaired, provided such repair constitutes only routine maintenance necessary to keep the structure in the same general condition it was in when it originally became nonconforming.

Expansion/improvements to nonconforming uses and structures.

(1)

A nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this ordinance, was designed or arranged to accommodate such use, provided, that current parking requirements shall be adhered to upon such extension.

(2)

Any permitted expansion shall occur only on the lot occupied by the nonconforming use or structure and no area of any lot not originally devoted to the nonconforming use shall be utilized for any aspect of such expansions.

(3)

A nonconforming structure may be altered to decrease its nonconformity.

(4)

Minor alterations, cosmetic modifications, interior renovations and similar changes for nonconforming uses or structures may be permitted, subject to the following standards:

(A)

Any building or structure that is conforming as to use, but is nonconforming as to the requirements of this chapter, including floor area, lot, yard, road frontage, setback, parking, loading spaces, fences, signs or height requirements, may be enlarged or structurally altered, if the alteration or enlargement complies with this article.

(B)

Such construction shall meet all current use requirements for the zoning district assigned by the zoning administrator as a part of the nonconforming use verification process.

(5)

A nonconforming single-family detached dwelling may not be expanded, except as provided for in this article. In addition, new or expanded detached residential accessory structures or uses (such as a storage shed, garage, swimming pool, etc.) may be permitted subject to the provisions of this article. Expansion of the dwelling and new or expanded detached accessory structures and uses shall meet all current zoning requirements, including height, yard and setbacks, for the zoning district in which they are located. In no case shall a nonconforming one-family dwelling be modified to accommodate additional dwelling units.

(6)

For commercial, industrial, other nonresidential uses or residential uses, other than a single-family detached use, where the use is compatible with the proposed land use district as designated by the comprehensive plan, but where the current zoning requirements (including, but not limited to, parking, yards, setbacks, landscaping, screening and buffering, height, signs, lot coverage, connection to public sewer and water) are not met, expansion of the building, and expansion of the land area within the lot devoted to activities other than buildings, may be approved, provided all current zoning requirements applicable to the expansion are met.

(A)

A one-time exempt ion may be granted by the zoning administrator for properties located in the Highway Corridor Overlay District in accordance with subsection 6-1005.D.

(7)

For commercial, industrial and other nonresidential uses not connected to public water and sewer, where the expansion of a use compatible with the proposed land use district as designated by the comprehensive plan, and meeting all zoning requirements except for connection to public water and sewer, expansion of buildings and the land area within the lot devoted to activities other than buildings may be permitted subject to a waiver granted by the board of supervisors upon recommendation from the planning commission.

(8)

Existing commercial, industrial and other nonresidential uses compatible with the proposed land use district as designated by the comprehensive plan, and which have been made nonconforming with respect to open space, perimeter landscape requirements or setback requirements as a result of a right-of-way dedication to the County or the Virginia Department of Transportation without compensation shall be allowed to expand the buildings and the land area devoted to the activity only to the extent that would have been permitted under the ordinance requirements prior to the dedication.

(9)

Improvements may be made to a nonconforming use or structure for the sole purpose of accessibility or public safety when such improvements are necessitated by a local, state, or federal law. Such improvements may be approved by the zoning administrator and are not subject to items (3), (4) and (5) of subsection 1-1020.G.

Restoration or replacement.

(1)

A residential or commercial nonconforming structure damaged or destroyed by a natural disaster, casualty, or other act of God, may be repaired, rebuilt or replaced to eliminate or reduce the nonconforming features to the extent possible, without the need to obtain a variance. If such building is damaged greater than fifty percent (50%) and cannot be repaired, rebuilt or replaced except to restore it to its original nonconforming condition, the owner of the property shall have the right to do so. The owner shall apply for a zoning and building permit and any work done to repair, rebuild or replace such building shall be in compliance with the provisions of the Uniform Statewide Building Code and any work done to repair, rebuild or replace such building shall be in compliance with the provisions of the Floodplain Management Overlay District as contained in article VI of this ordinance. Unless such building is repaired rebuilt or replaced and construction completed within two (2) years of the date of the natural disaster, casualty, or other act of God, such building shall only be repaired, rebuilt or replaced in accordance with the provisions of subsection H.(2) below. However, if the nonconforming building is in area under a federal disaster declaration and the building has been damaged or destroyed as a direct result of conditions that gave rise to the declaration, an additional two (2) years shall be provided for the building to be repaired, rebuilt or replaced as otherwise provided in this paragraph.

(A)

One (1) extension not exceeding ninety (90) days may be granted by the zoning administrator if it is determined that such additional time is required to reasonably complete the construction, repair or rebuild the replacement residence.

(2)

"Casualty" shall mean as result of a fire or other cause beyond the control of the owner or by an act of nature, and shall not be caused by age or ordinary wear and tear or damage intentionally caused by the owner or an agent thereof. For purposes of this section, "act of God" shall include any natural disaster or phenomena including a hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake or fire caused by lightning or wildfire. For purposes of this section, owners of property damaged by accidental fire have the same rights to rebuild such property as if it were damaged by an act of God. Nothing herein shall be construed to enable the property owner to commit an arson under Section 18.2-77 or 18.2-80 of the Code of Virginia, and obtain vested rights under this section.

(3)

All other nonconforming uses or structures destroyed or damaged in any manner, to the extent that the cost of restoration to its condition before such an occurrence shall exceed fifty percent (50%) of the current replacement value of the structure at the time of damage, it shall be restored only if it complies with the requirements of this ordinance.

(A)

When such use or structure is damaged less than fifty percent (50%) of the cost of reconstructing the entire use or structure, it may be repaired or restored; provided, any such repair or restoration is started within twelve (12) months and completed within eighteen (18) months from the date of partial destruction.

(4)

The cost of land or any factors other than the cost of the structure are excluded in the determination of cost of restoration for any structure or activity devoted to a nonconforming use.

(5)

Nonconforming uses other than buildings and signs (such as, but limited to, underground storage tanks, private sewage disposal systems and parking lots) may be restored or replaced when such structures become unsafe or unsound. A relocation on the same lot may be approved by the zoning administrator, provided the new location is less nonconforming than the original location, and further provided that the new location shall not cause a greater detrimental impact on conforming uses in the neighborhood.

(6)

Such restoration shall not include any minor alterations, cosmetic modifications, interior renovations or similar changes unless approved under the provisions of subsection 1-1020.G, expansion/improvements to nonconforming uses and structures, of this article, nor shall such restoration include any expansion unless approved under the provisions of subsection 1-1020.G, expansion/improvements to nonconforming uses and structures. Such restoration may include changes that make the use less nonconforming than it was prior to the casualty.

(7)

Redevelopment of a site which is nonconforming as to lot coverage standards shall be permitted to maintain lot coverage on site equal to or less than the existing impervious coverage on site at the time of redevelopment, provided that the post-development stormwater runoff shall meet the quality and quantity requirements or the County Chesapeake Bay Preservation Area Ordinance and stormwater management regulations.

Moving a nonconforming use or structure. .....No structure used as part of a nonconforming use shall be moved to any other lot unless such lot is properly zoned to permit the use, nor shall such a structure be moved within the lot on which it exists, unless a relocation is specifically provided for in other sections of this article.

Certifications. .....The construction or use of a nonconforming building or land area for which a zoning permit was issued legally prior to the adoption of this ordinance may proceed, provided such building is complete within one (1) year or such use of land is established within thirty (30) days after the effective date of this ordinance.

Undeveloped nonconforming lots.

(1)

This section applies only to undeveloped nonconforming lots. A lot is undeveloped if it has no principal building upon it or if there is a principal building upon it which is physically unsafe or unlawful due to lack of repairs and maintenance and is declared by a duly authorized official to be unsafe or unlawful by reason of physical condition. A change in use of a developed nonconforming lot may be accomplished in accordance with section 5-1003.

(2)

When a nonconforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is nonconforming as to the lot area, lot width and/or frontage, or lot depth, or a combination thereof, required by the zoning district, unless specifically prohibited, the lot may be used as proposed just as if it were conforming, provided all other requirements of the zoning district are met or the board of zoning appeals establishes setbacks in accordance section 1-1019, provisions for appeals, variances, interpretations.

(A)

If a lot lacks street frontage, it must be documented that the lot has an unrestricted right of ingress and egress to a public street.

(3)

For undeveloped lots zoned for commercial, industrial and other nonresidential uses located in the Highway Corridor Overlay District, the board of supervisors upon recommendation from the planning commission may grant exemptions, whether partial or total, from Highway Corridor Overlay provisions in accordance with subsection 6-1005.D, exemptions to the Highway Corridor District Requirements.

(4)

If two (2) or more undeveloped lots or combinations of lots with continuous frontage under the same ownership are of record at the same time of passage or amendment of this article, and if all or part of the lots do not meet the requirements established for lot area and width, the lands involved shall be considered to be an unsubdivided parcel for the purposes of this article, and no portion of said parcel shall be used or sold in a manner diminishing compliance with the area and width requirements applicable to such nonconforming lot.

This subsection shall not apply to a nonconforming lot if it is determined that a majority of the developed lots located on either side of the street where such nonconforming lot is located and within five hundred (500) feet of such lot are also nonconforming. The intent of this subsection is to require nonconforming lots to be combined with other undeveloped lots to create conforming lots, but not to require such combinations when it would be clearly out of character with the manner in which the neighborhood had previously been developed.

Abandonment and discontinuance of nonconforming situation.

(1)

In the event a nonconforming use ceases for a period of two (2) years or more, then the nonconforming use shall be deemed abandoned and compliance with this ordinance shall be required. The casual, temporary or illegal use of land or structure does not establish the existence of a nonconforming use.

(2)

When a structure or use made nonconforming by this ordinance is vacant or discontinued at the effective date of this ordinance, the two-year period for purposes of this article begins to run on the effective date of this ordinance. (7-7-05; 9-24-09; 10-20-16; 7-19-18.)

Sec. 1-1021. - Public notification for amendments, conditional zoning, conditional or special use permits, variances, manufactured home family member residences, and gunsmith home occupations.

Publication of notice. .....The zoning administrator, upon acceptance of any application, shall cause a notice of the public hearing to be published. Public newspaper notice of the time and place of such hearing, together with a summary describing the proposed application shall be published in at least one (1) newspaper of general circulation in Isle of Wight County once each week for two (2) successive weeks in accordance with Section 15.2-2204(A) of the Code of Virginia (1950), as amended.

Written notice to adjoining property owners.

Map amendments. .....In the case of proposed map amendments, the zoning administrator shall send written notice to adjoining property owners, whether separated by streets, railroads or other rights-of-way, of the time, date, place and nature of the public hearing, at least ten (10) days.

Conditional use permits.

Before an application for a conditional use may be heard by the planning commission, a complete and accurate list of the names and addresses of the owners of all the lands adjoining and within a radius of two hundred (200) feet of the property affected by such application shall be prepared by the zoning administrator.

The zoning administrator shall send, by mail, to each owner shown on said list, at least ten (10) days before the date set for a hearing upon such application, a notice addressed to such owners generally, identifying the property affected thereby, and setting forth the conditional use requested and the date, hour and place fixed by the planning commission for the hearing thereon. This provision shall likewise apply to any application for the extension of a temporary conditional use.

Posting of signs.

In addition to notice of public hearings as required by the applicable statues of the Commonwealth of Virginia, the applicant for amendments, conditional zoning, conditional or special use permits, variances, manufactured home family member residences and gunsmith home occupations shall erect on or immediately adjacent to such property a sign or signs as specified herein giving public notice of the zoning action required.

The sign must meet the following criteria:

The wording, size and color of such sign shall be as specified by the zoning administrator and approved by the board of supervisors.

One (1) sign shall be erected so as to be visible and legible to each abutting public street. Where the property has extensive road frontage, one (1) sign shall be erected for each five hundred (500) feet of frontage. When a property has no frontage directly on a public street, it shall be posted adjacent to the nearest public street from which future access is contemplated.

Such signs shall be erected not less than seven (7) calendar days before any public hearing of which they give notice and removed by the applicant within two (2) days after the final public hearing before the action of the board of supervisors on said application.

Such signs shall be required for each public hearing at which the application is considered. It shall be unlawful for any person to pull down, write on, cut or otherwise injure or deface such public notice, which will constitute violation of this ordinance.

The applicant shall be responsible for the maintenance or replacement of signs obliterated or destroyed during the posting period.

The zoning administrator may require the applicant to deposit with the county a cash bond equal to the replacement value of the sign(s).

[Addition requirements.] .....The additional requirements for public notice and posting on the property is for the benefit of the public to identify the location of the property in question only and to have advanced knowledge of a hearing and is not a legal requirement of notice and the failure to comply with the provisions herein shall not defeat the action of the board of supervisors concerning the application. The only legal notice requirements shall be those provided by the statutes of the Commonwealth of Virginia. (7-7-05, 3-20-14; 7-19-18.)