Lexington City Zoning Code
ARTICLE XIX
Board of Zoning Appeals 1
§ 420-19.1 Membership.
A.
Composition; compensation and removal of members; vacancies. A Board consisting of five persons who are residents of the City shall be appointed by the Circuit 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.
B.
Terms. The terms of office shall be for five years and the term of one member shall expire each year.
C.
Conflicts of interest. 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.
Organization. The Board shall choose annually its own Chairman and its own Vice Chairman, who shall act in the absence of the Chairman.
E.
Incumbent members. Members of the present Board of Zoning Appeals, duly appointed under the zoning ordinance in effect immediately preceding the enactment of this chapter, shall remain in office for the balance of the term for which each was originally appointed under the prior ordinance.
§ 420-19.2 Powers and duties. [1]
[Amended 3-21-2019 by Ord. No. 2019-04]
A.
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 hereto.
(2)
To authorize upon appeal in specific cases such variance from the terms of this chapter 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 standard for a variance and the criteria set out in this section.
(a)
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:
[1]
The property interest for which the variance is being requested was acquired in good faith and any hardship was not created by the applicant for the variance;
[2]
The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area;
[3]
The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance;
[4]
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
[5]
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 Subdivision 6 of § 15.2-2309 of the Code of Virginia or the process for modification of a zoning ordinance pursuant to Subdivision A4 of § 15.2-2286 of the Code of Virginia at the time of the filing of the variance application.
(b)
A variance shall be authorized only after a hearing, advertised according to Code of Virginia § 15.2-2204, shall have been held.
B.
In authorizing a variance, the Board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.
C.
In exercising its powers, the Board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and, to that end, shall have all the powers of the Zoning Administrator.
D.
To hear and decide appeals from the decision of the Zoning Administrator after notice and hearing as provided by Code of Virginia § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the Board may give such notice by first-class mail rather than by registered or certified mail.
E.
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 Code of Virginia § 15.2-2204, 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.
F.
No provision of this section shall be construed as granting any 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.
G.
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 Code of Virginia § 15.2-2312 shall be conducted at the continued meeting and no further advertisement is required.
[1]
Editor's Note: For state law as to powers and duties of Board of Zoning Appeals, see Code of Virginia, § 15.2-2309.
§ 420-19.3 Organizational rules and procedures.
A.
The Board shall adopt such rules and regulations as it may consider necessary.
B.
Meetings 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 Acting 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 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 on which the Board is required to pass.
§ 420-19.4 Appeals and variances. [1]
A.
Generally. An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the City affected by any decision of the Administrator or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this article, any ordinance adopted pursuant to this article, or any modification of zoning requirements pursuant to § 15.2-2286. Such an appeal shall be taken within 30 days after the decision appealed from by filing with the 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.
(1)
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 30 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within 30 days. The zoning violation or written order shall include the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal. The appeal period shall not commence until the statement is given. A written notice of a zoning violation or a written order of the Zoning Administrator that includes such statement sent by registered or certified mail to, or posted at, the last known address of the property owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall be deemed sufficient notice to the property owner and shall satisfy the notice requirements of this section.
(2)
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the 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 notice to the Administrator and for good cause shown.
B.
Mailing procedure. Appeals shall be mailed to the Board, care of the Administrator. A copy shall be mailed to the individual, official, department or agency concerned, if any.
C.
Hearing.
(1)
The Board shall fix a reasonable time for the hearing of an application or appeal and decide such appeal within 45 nights.
(2)
Public notice shall be provided as specified below and due notice given to the parties in interest:
(a)
Notice of the hearing shall be published once a week for two successive weeks in some newspaper published or having general circulation in the City. Such notice shall specify the time and place of the hearing at which persons may appear and present their views, not less than five days nor more than 21 days after the second advertisement shall appear in such newspaper. The subject matter of the public hearing need not be advertised in full but may be advertised by reference. Each such advertisement shall contain a reference to the places within the City where copies of the appeal or variance request may be examined. The term "two successive weeks," as used in this subsection, shall mean that such notice shall be published at least twice in such newspaper, with not less than six days elapsing between the first and second publications.
(b)
For variance requests, planning staff shall give written notice to those persons who own property, any portion of which abuts the subject property, and all property which is directly across the street from any portion of the subject property, as determined by the City's real property tax records. This notice shall give the date, time and place of the hearing, identify the property which is the subject of the application and give a brief description of the proposed action. This notice shall be mailed a minimum of 10 days prior to the date of the public hearing. The list of property owners and the content of the notice shall be approved by the Zoning Administrator prior to mailing.
[Amended 3-21-2019 by Ord. No. 2019-04]
(c)
For variance requests, planning staff shall also place a sign provided by the City on the subject property which indicates that this request is pending. This sign shall be located to be clearly visible from the street.
[Amended 3-21-2019 by Ord. No. 2019-04]
D.
Decision. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from. In any appeal, if a 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.
E.
Reapplication. No reapplication for a variance for the same or substantially the same application shall be considered by the governing body within a period of one year from its last consideration.
[1]
Editor's Note: For state law as to appeals to zoning board, see Code of Virginia, § 15.2-2311.
§ 420-19.5 Intent. [1]
A.
Any person or persons jointly or severally aggrieved by any decision of the Board, or any taxpayer or any officer, department, board or bureau of the municipality, may present to the Circuit 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 and shall prescribe therein the time within which a return thereto must be made to serve upon the realtor's attorney, which shall not be less than 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.
C.
The Board 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 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 such evidence to the Court, with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court 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 the Board acted in bad faith or with malice in making the decision appealed from.
[1]
Editor's Note: For state law as to appeals to decision of Board of Zoning Appeals, see Code of Virginia, § 15.2-2311.