A board of zoning appeals consisting of five members shall be appointed by the circuit or corporation court of the county. The board shall serve without pay other than for traveling expenses, and members shall be removable for cause upon written charges and after public hearing. Appointments for vacancies occurring otherwise than by expiration of term shall, in all cases, be for the unexpired term.

(Code 1997, § 54-61; Ord. of 6-6-1969, § 5-1-1)

(a)

The term of office of members of the board of zoning appeals shall be for five years; except that of the first five members appointed, one shall serve for five years, one for three years, one for four years, one for two years, and one for one year. One of the five appointed members may be an active member of the planning commission.

(b)

Members may be removed for cause by the appointing authority upon written charges and after a public hearing.

(c)

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

(d)

The board shall choose annually its own chairman and vice-chairman, who shall act in the absence of the chairman.

(Code 1997, § 54-62; Ord. of 6-6-1969, §§ 5-1-2—5-1-5)

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 division or of any ordinance adopted pursuant to this division.

(2)

To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions will result in unnecessary hardship; provided that the spirit of this chapter shall be observed and substantial justice done, as set out in division 10 of this article.

(Code 1997, § 54-63; Ord. of 6-6-1969, §§ 5-2-1, 5-2-2)

(a)

The board of zoning appeals shall adopt such rules and regulations as it may consider necessary.

(b)

The meeting of the board shall be held at the call of its chairman or at such time as a quorum of the board may determine.

(c)

The chairman or, in his absence, the vice-chairman may administer oaths and compel the attendance of witnesses.

(d)

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.

(e)

All meetings of the board shall be open to the public.

(f)

A quorum shall be at least three members.

(g)

A favorable vote of three members of the board 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.

(Code 1997, § 54-64; Ord. of 6-6-1969, § 5-3)

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 town affected by any decision of the zoning administrator. Such an 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 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 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.

(Code 1997, § 54-65; Ord. of 6-6-1969, § 5-4)

(a)

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

(b)

Appeals requiring an advertised public hearing shall be accompanied by a payment of $50.00. Costs shall be taxed to the applicant. A deposit of $100.00 toward costs shall be made at time of application.

(Code 1997, § 54-66; Ord. of 6-6-1969, § 5-5; Ord. of 11-30-1989, § 5-5-2)

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 60 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. The concurring vote of three members shall be necessary to reverse any order, requirement, decision in favor of the applicant on any matter upon which it is required to pass under this chapter or to effect any variance from this chapter. The board shall keep minutes of its proceedings and other official actions, which shall be filed in the office of the board and shall be public records. The chairman may administer oaths and compel the attendance of witnesses.

(Code 1997, § 54-67; Ord. of 6-6-1969, § 5-6)

(a)

Any person jointly or severally aggrieved by any decision of the board of zoning appeals, or any taxpayer, or any officer, department, board or bureau of the town may present to the circuit or corporation court of the county a petition specifying the grounds on which aggrieved within 30 days after the filing of the decision in the office of the board.

(b)

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 relator's attorney, which shall not be less than ten days and may be extended by the court. The court may, on application, on notice to the board and on due cause shown, grant a restraining order.

(c)

The board of zoning appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(d)

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

(e)

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

(Code 1997, § 54-68; Ord. of 6-6-1969, § 5-7)

(a)

A building or structure shall be started, repaired, reconstructed, enlarged or altered only after a zoning permit has been obtained from the administrator.

(b)

At the discretion of the administrator, each application for a zoning permit shall be accompanied by three copies of a scale drawing. The drawing shall show the size and shape of the parcel of land on which the proposed building is to be constructed, the nature of the proposed use of the building or land, the location and arrangement of off-street parking, and the location of such building or use with respect to the property line of the parcel of land and to the right-of-way of any street or highway adjoining the parcel of land. Any other information which the administrator may deem necessary for the consideration of the application may be required. If the proposed building or use is in conformity with the provisions of this chapter, a permit shall be issued to the applicant by the administrator. One copy of the drawing shall be returned to the applicant with the permit.

(Code 1997, § 54-91; Ord. of 6-6-1969, § 4-1)

Land may be used or occupied and buildings structurally altered or erected may be used or changed in use only after a certificate of occupancy has been issued by the county building official. Such a permit shall state that the building or the proposed use, or the use of the land, complies with the provisions of this chapter. A similar certificate shall be issued for the purpose of maintaining, renewing, changing or extending a nonconforming use. A certificate of occupancy, either for the whole or a part of a building, shall be applied for simultaneously with the application for a zoning permit. The permit shall be issued within ten days after the erection or structural alteration of such building or part has conformed with the provisions of this chapter.

(Code 1997, § 54-92; Ord. of 6-6-1969, § 4-2)

Where permitted by this chapter, the location of new permitted conditional uses shall require, in addition to zoning permit and certificate of occupancy, a conditional use permit. These permits may be approved or denied by the council and shall be subject to such conditions as the council deems necessary to carry out the intent of this chapter. No such conditional use permit shall be authorized except after notice and hearing as required by Code of Virginia, § 15.2-2204.

(Code 1997, § 54-93; Ord. of 6-6-1969, § 4-3; Ord. of 6-20-1988, § 4-3)

In determining conditions to be imposed for issuance of a conditional use permit, the council shall take into consideration the intent of this chapter and may impose reasonable conditions that:

(1)

Abate or restrict noise, smoke, dust or other elements that may affect surrounding property.

(2)

Establish setback, side and front yard requirements necessary for orderly expansion and to prevent traffic congestion.

(3)

Provide for adequate parking and ingress and egress to public streets or roads.

(4)

Provide adjoining property with a buffer or shield from view of the proposed use if such use is considered to be detrimental to the adjoining property.

(5)

Provide for adequate lighting.

(6)

Tend to prevent such use from changing the character and established pattern of development of the town.

(Code 1997, § 54-94; Ord. of 6-6-1969, § 4-3-1; Ord. of 6-20-1988, § 4-3-1)

The regulations, restrictions and boundaries established in this chapter may, from time to time, be amended, supplemented, changed, modified or repealed by a favorable majority of votes of the town council, provided:

(1)

That a public hearing shall be held in relation thereto at which parties in interest and citizens shall have an opportunity to be heard.

(2)

Notices shall be given of the time and place of such hearings by publication in at least two issues of some newspaper having a general circulation in the jurisdiction. Such notice shall specify the time and place of the hearing at which persons affected may appear and present their views, not less than six days nor more than 21 days after final publication. After enactment of any such plans, ordinance or amendment, further publication thereof shall not be required.

(3)

Changes shall be made by the town council in this chapter or the zoning map only after such changes have been referred to the planning commission for a report. Action shall be taken by the town council only after a report has been received from the planning commission, unless a period of 90 days has elapsed after the date or referral to the commission, after which time it may be assumed the commission has approved the change or amendment.

(4)

Individual property owners may petition the governing body to have their property rezoned by submitting their request in writing, accompanied by a payment of $50.00 to the zoning administrator. The costs shall be taxed to the applicant. A deposit of $100.00 toward costs shall be made at time of application. After proper public hearing, the planning commission shall make its recommendation to the council, who will then act upon the applicant's request. If the planning commission makes no recommendation within 90 days from the date of referral, the council may assume that the commission concurs with the applicant.

(Code 1997, § 54-116; Ord. of 6-6-1969, § 7-1; Ord. of 11-30-1989, § 7-1-4)

Substantially the same zoning application for amendment or change or for a conditional use permit, or conditional zoning, or rezoning shall not be reconsidered within six months of any final action thereon by the town council.

(Code 1997, § 54-117; Ord. of 4-15-1996, § 7-1-5)

The purpose of conditional zoning is to provide a method for permitting the reasonable and orderly development and use of land in those situations in which peculiar circumstances indicate that the existing zoning regulations are inadequate. The town allows an owner seeking a change in zoning classification to proffer voluntary conditions for the protection of the community, which conditions are not generally applicable to other land in the zoning classification sought and which, when considered with such generally applicable regulations, should cause the requested reclassification to be compatible with existing zoning and uses in the area.

(Code 1997, § 54-141; Ord. of 6-6-1969, § 9-1; Ord. of 6-5-1991)

(a)

The owner shall, if he elects to obtain conditional zoning, voluntarily proffer in writing such conditions as he deems appropriate at the time of filing an application to rezone the property or by such later date as the planning commission shall allow, but in any event before the planning commission makes its recommendation to the council.

(b)

If additions to or modifications of property are desired by the owner, the same shall be made in writing no less than 21 days prior to the time at which the planning commission makes its recommendation to the council, unless the commission:

(1)

Specifically waives such time period; or

(2)

Specifically establishes such greater or lesser time period as it deems reasonable.

(c)

The council may consider additional proffers, deletions and amendments to all such conditions provided same have been voluntarily proffered in writing prior to the public hearing at which the council renders its decision thereon.

(Code 1997, § 54-142; Ord. of 6-6-1969, § 9-2; Ord. of 6-5-1991)

The council may approve reasonable conditions provided the following criteria are met:

(1)

The rezoning itself must give rise to the need for the conditions.

(2)

All conditions shall have a reasonable relation to the rezoning.

(3)

No conditions shall include a cash contribution to the town.

(4)

No condition shall require mandatory dedication of real or personal property for open space, parks, schools, fire stations, or other public facilities not otherwise provided for in chapter 38.

(5)

No condition shall include payment for or construction of off-site improvements except those sewerage or drainage facilities otherwise provided for by law.

(6)

No condition shall be proffered that is not related to the physical development or physical operation of the property.

(7)

All conditions shall be in conformity with the town's comprehensive plan.

(Code 1997, § 54-143; Ord. of 6-6-1969, § 9-3; Ord. of 6-5-1991)

The zoning map shall show by an appropriate symbol the existence of conditions attached to the zoning on the map. The zoning administrator shall maintain a conditional zoning index, which index shall be available in the planning office for public inspection during regular office hours. The index shall provide ready access to the ordinance creating such conditions in accordance with this section and shall clearly list all conditions applicable to each.

(Code 1997, § 54-144; Ord. of 6-6-1969, § 9-4; Ord. of 6-5-1991)

In order to ensure that the intent and purpose of conditional zoning approved in accordance with this section are furthered, the zoning administrator or his agent shall be vested with all necessary authority on behalf of the town council to administer and enforce conditions attached to a rezoning or amendment to a zoning map, including:

(1)

Ordering, in writing, compliance with such conditions.

(2)

Requiring a guarantee or contract or both for construction of physical improvements required by conditions.

(3)

Denial of zoning certification with regard to the issuance of any required use, occupancy or building permit.

(Code 1997, § 54-145; Ord. of 6-6-1969, § 9-5; Ord. of 6-5-1991)

Any person who is aggrieved by the zoning administrator's decision or actions regarding enforcement or guarantees as provided for in section 54-145 may petition the council for review of such decision. Such petition shall be filed with the zoning administrator and the town clerk within 30 days from the date of the decision from which review is sought, and such petition shall specify the grounds upon which the petitioner is aggrieved.

(Code 1997, § 54-146; Ord. of 6-6-1969, § 9-6; Ord. of 6-5-1991)

There shall be no amendment or variation of conditions created pursuant to the provisions of this division until after a public hearing before the council advertised pursuant to provisions of Code of Virginia, § 15.2-2206.

(Code 1997, § 54-147; Ord. of 6-6-1969, § 9-7; Ord. of 6-5-1991)

(a)

If at the time of enactment of this chapter any legal activity is being pursued, or any lot or structure is being legally utilized in a manner or for a purpose which does not conform to the provisions of this chapter, such manner of use or purpose may be continued as provided in this division.

(b)

If any change in title of possession, renewal of a lease of any such lot or structure occurs, the use existing may be continued.

(c)

If any nonconforming use, structure or activity is discontinued for a period exceeding two years after the enactment of this chapter, it shall be deemed abandoned; and any subsequent use shall conform to the requirements of this chapter.

(d)

Whenever a nonconforming structure, lot or activity has been changed to a more limited nonconforming use, such existing use may only be changed to an even more limited use.

(e)

Temporary seasonal nonconforming uses that have been in continual operation for a period of two years or more prior to the effective date of the ordinance from which this chapter is derived are excluded.

(Code 1997, § 54-171; Ord. of 6-6-1969, § 3-1)

(a)

All nonconforming uses shall obtain a certificate of occupancy within 60 days after the adoption of the ordinance from which this chapter is derived. Such permits shall be issued promptly upon the written request of the owner or operator of a nonconforming use.

(b)

The construction or use of a nonconforming building or land area for which a permit was issued legally prior to the adoption of the ordinance from which this chapter is derived may proceed, provided such building is completed within one year, or such use of land established within 30 days after the effective date of the ordinance from which this chapter is derived.

(Code 1997, § 54-172; Ord. of 6-6-1969, § 3-2)

On any building devoted in whole or in part to any nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs or on repair or replacement of nonloadbearing walls, fixtures, wiring or plumbing, to an extent not exceeding ten percent of the current replacement value of the structure provided that the cubic content of the structure as it existed at the time of passage or amendment of this chapter shall not be increased. Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any structure or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

(Code 1997, § 54-173; Ord. of 6-6-1969, § 3-3)

Whenever the boundaries of a district are changed, any uses of land or buildings that become nonconforming as a result of such change shall become subject to the provisions of this division.

(Code 1997, § 54-174; Ord. of 6-6-1969, § 3-4)

(a)

A nonconforming structure to be extended or enlarged shall conform with the provisions of this division.

(b)

A nonconforming activity may be extended throughout any part of a structure arranged or designed for such activity at the time of enactment of this division.

(Code 1997, § 54-175; Ord. of 6-6-1969, § 3-5)

Any lot of record at the time of the adoption of the ordinance from which this chapter is derived that is less in area or width than the minimum required by this chapter may be used when the requirements of this Code regarding setbacks, side and rear yards are met.

(Code 1997, § 54-176; Ord. of 6-6-1969, § 3-6)

(a)

When a nonconforming activity, which is carried on in either a conforming or nonconforming structure, is destroyed or damaged in any manner to the extent that the cost of repair or restoration to its condition before the occurrence shall exceed 50 percent of the fair market value of the entire structure, it shall be restored only if the requirements of this chapter are met.

(b)

When a nonconforming structure, devoted to a conforming activity, is destroyed or damaged in any manner to the extent that the cost of repair or restoration to its condition before the occurrence shall exceed 75 percent of the fair market value of the entire structure, it shall be restored only if it complies with the requirements of this chapter.

(c)

When a conforming structure devoted to a nonconforming activity is damaged less than 50 percent of the fair market value of the entire structure, or when a nonconforming structure devoted to a conforming activity is damaged less than 75 percent of the fair market value of the entire structure, either may be repaired or restored, provided any such repair or restoration is started within 12 months and completed within 18 months from the date of partial destruction.

(d)

The cost of land or any factors other than the cost of the structure are excluded in the determination of fair market value for the purpose of calculating the percentage of damage.

(Code 1997, § 54-177; Ord. of 6-6-1969, § 3-7)

(a)

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance from which this chapter is derived, or where by reason of exceptional topographical conditions or other 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 chapter would effectively prohibit or unreasonably restrict the use of the property or where the board is satisfied, upon the evidence heard by it, that the granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided all variances shall be in harmony with the intended spirit and purpose of this chapter.

(b)

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

(1)

The strict application of this division would produce undue hardship;

(2)

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

(3)

The authorization of 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.

(Code 1997, § 54-191; Ord. of 6-6-1969, §§ 5-2-3, 5-2-4)

No variance shall be authorized, except after notice and hearing as required by Code of Virginia, § 15.2-2309.

(Code 1997, § 54-192; Ord. of 6-6-1969, § 5-2-5)

No variance shall be authorized unless the board finds that the condition or situation of the property concerned or 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 chapter.

(Code 1997, § 54-193; Ord. of 6-6-1969, § 5-2-6)

In authorizing 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.

(Code 1997, § 54-194; Ord. of 6-6-1969, § 5-2-7)