Notwithstanding any other provision of this ordinance, the zoning administrator shall have the authority, as qualified below, to approve a reduction in the minimum setback and yard requirements in the case of any structure existing or partially constructed which does not comply with such requirements applicable at the time such structure was erected. Such a reduction may be approved by the zoning administrator in accordance with the following provisions:

(1)

The zoning administrator determines, in writing, that:

a.

The encroachment does not exceed one and one half linear feet;

b.

The noncompliance was done in good faith, or through no fault of the property owner, or was the result of an error in the location of the building subsequent to the issuance of a building permit, if such was required;

c.

To force compliance with the minimum setback and yard requirements would cause undue hardship upon the owner;

d.

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

e.

It will not be detrimental to the use and enjoyment of other property in the immediate vicinity;

f.

The character of the zoning district will not be changed by the granting of the variance;

g.

It will not create an unsafe condition with respect to both other property and public streets; and

h.

The reduction will not result in an increase in density or floor area ratio from that permitted by the applicable zoning district regulations.

(2)

In approving such a reduction under the provisions of this section, the zoning administrator shall allow only a reduction necessary to provide reasonable relief and may prescribe such conditions, to include landscaping and screening measures, to assure compliance with the intent of this ordinance.

(3)

Upon the approval of a reduction for a particular building in accordance with the provisions of this section, the same shall be deemed to be a lawful building.

(4)

Prior to the granting of a variance, the zoning administrator shall give, or require the applicant to give, all adjoining property owners written notice of the request for variance, and an opportunity to respond to the request within twenty-one days of the date of the notice. If any adjoining property owner objects to said request in writing within the time specified above, the request shall be transferred to the board of zoning appeals for decision.

(5)

In accordance with the provisions set forth in section 24-633, the applicant shall have 30 days in which to appeal a decision made under section 24-644 by the zoning administrator.

(Ord. No. 31A-189, 4-13-99)

A board of zoning appeals, consisting of five residents of the county as members, shall be appointed by the Circuit Court of James City County. Members of the board may serve without pay other than for traveling expenses.

(Ord. No. 31A-88, § 20-110, 4-8-85; Ord. No. 31A-189, 4-13-99)

(a)

The term of office of members of the board of zoning appeals shall be for five years.

(b)

Appointments for vacancies occurring otherwise than by expiration of term shall in all cases be for the unexpired term.

(Ord. No. 31A-88, § 20-111, 4-8-85; Ord. No. 31A-189, 4-13-99)

Any member of the board of zoning appeals shall be disqualified to act upon a matter before the board with respect to property in which the member has an interest.

(Ord. No. 31A-88, § 20-112, 4-8-85; Ord. No. 31A-189, 4-13-99)

Members of the board of zoning appeals may be removed for cause by the circuit court upon written charges and after a public hearing.

(Ord. No. 31A-88, § 20-113, 4-8-85; Ord. No. 31A-189, 4-13-99)

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

(Ord. No. 31A-88, § 20-114, 4-8-85; Ord. No. 31A-189, 4-13-99)

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 chapter or of any ordinance adopted pursuant thereto.

(2)

To grant upon appeal or original application in specific cases a variance as defined in Va. Code § 15.2-2201 and section 24-2 of the County Code; provided 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 defined standard for a variance and the following criteria:

a.

A variance shall be granted only in accordance with Va. Code § 15.2-2309.

b.

No such variance shall be considered except after notice and hearing as required by Va. Code § 15.2-2204.

c.

In granting a variance the board 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.

(3)

To hear and decide appeals from the decision of the zoning administrator.

(4)

To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by any such question, and after a public hearing with notice as required by Va. Code § 15.2-2204, the board may interpret the map in such way as to carry out the intent and purpose of this chapter for the particular section or district in question. The board shall not have the power, however, to rezone property or substantially to change the locations of district boundaries as established by ordinance.

(Ord. No. 31A-88, § 20-115, 4-8-85; Ord. No. 31A-189, 4-13-99; Ord. No. 31A-243, 7-14-09; Ord. No. 31A-300, 10-13-15; Ord. No. 31A-344, 3-12-19)

The board of zoning appeals shall adopt rules and regulations as it may consider necessary. The meetings of the board shall be held at the call of its chairman or at such times as a quorum of the board may determine. The chairman or, in his absence, the acting chairman may administer oaths and compel the attendance of witnesses. The board shall keep minutes of its proceedings showing the vote of each member upon each question or if absent or failing to vote, indicating such fact. It shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. All meetings of the board shall be open to the public. A quorum shall be at least three members.

(Ord. No. 31A-88, § 20-116, 4-8-85; Ord. No. 31A-189, 4-13-99)

A favorable vote of three members of the board of zoning appeals shall be necessary to reverse any order, requirement, decision or determination of any administrative official or to decide in favor of the applicant on any matter upon which the board is required to pass.

(Ord. No. 31A-88, § 20-117, 4-8-85; Ord. No. 31A-189, 4-13-99)

An appeal to the board of zoning appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the county affected by any decision of the zoning administrator. Such appeal shall be taken within 30 days after the decision appealed from by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed was taken. An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property, in which case proceeding 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.

(Ord. No. 31A-8, § 20-118, 4-8-85; Ord. No. 31A-189, 4-13-99)

(a)

Appeals shall be mailed to the board of zoning appeals in care of the zoning administrator and a copy of the appeal shall be mailed to the secretary of the planning commission. A third copy should be mailed to the individual, official, department or agency concerned, if any.

(b)

Appeals requiring an advertised public hearing shall be accompanied by a certified check payable to the treasurer for the amount set forth in section 24-7.

(Ord. No, 31A-88, § 20-119, 4-8-85; Ord. No. 31A-189, 4-13-99)

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 matter within 90 days. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from.

(Ord. No. 31A-88, § 20-120, 4-8-85; Ord. No. 31A-110, 9-12-88; Ord. No. 31A-189, 4-13-99)

Petition to circuit court. Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the county may present to the Circuit Court of James City County a petition in accordance with Va. Code § 15.2-2314 within 30 days after the final decision of the board.

(Ord. No. 31A-88, § 20-121, 4-8-85; Ord. No. 31A-110, 9-12-88; Ord. No. 31A-189, 4-13-99; Ord. No. 31A-221, 1-10-06; Ord. No. 31A-248, 10-12-10; Ord. No. 31A-300, 10-13-15)