There is hereby created a board of zoning appeals to hear appeals on zoning issues and to hear conditional use permit application and variance applications to be known as the City of Montgomery Board of Zoning Appeals.

(Ord. of 5-9-2023)

(a)

The City of Montgomery Board of Zoning Appeals shall have five members to be appointed by the governing body. The members of the City of Montgomery Board of Zoning Appeals shall be residents of the City of Montgomery for at least three years preceding the member's appointment. A member cannot be a member of the planning commission and cannot hold any other elective or appointive office in the City of Montgomery.

(b)

The members shall be appointed for the following terms: One for a term of one year; two for a term of two years; and two for a term of three years. The terms shall expire on the first day of January of the first, second, and third years, respectively, following appointment. Thereafter, members shall serve three year terms. If a vacancy occurs, the governing body shall appoint a member for the unexpired term.

(c)

The governing body may appoint up to three additional members to serve as alternate members of the City of Montgomery Board of Zoning Appeals. The alternate members must meet the same eligibility requirements as set out in subsection (a) of this section. The term for an alternate member is three years. The governing body may appoint alternate members on a staggered term schedule.

(d)

An alternate member shall serve on the board when one of the regular members is unable to serve. The alternate member shall serve until a final determination is made in the matter to which the alternate member was initially called on to serve during the alternate member's term.

(e)

The City of Montgomery Board of Zoning Appeals shall establish written rules and procedures for designating an alternate member. An alternate member shall have the same powers and duties of a regular board member.

(f)

The members and alternate members of the City of Montgomery Board of Zoning Appeals shall serve without compensation, but shall be entitled to be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties.

(Ord. of 5-9-2023)

(a)

The City of Montgomery Board of Zoning Appeals shall meet at least quarterly and may meet more frequently at the written request of the chairperson or by two or more members.

(b)

Notice for a special meeting must be in writing, include the date, time, and place of the special meeting, and be sent to all members at least two days before the special meeting.

(c)

Written notice of a special meeting is not required if the date, time, and place of the special meeting were set in a regular meeting.

(d)

The City of Montgomery Board of Zoning Appeals must have a quorum to conduct a meeting. A majority of the members of the board shall constitute a quorum. No action of the board is official unless it is authorized by a majority of the members present at a regular or properly called special meeting.

(e)

At its first regular meeting of each year, the City of Montgomery Board of Zoning Appeals shall elect a chairperson and vice chairperson from its membership. The vice chairperson shall have the power and authority to act as chairperson during the absence or disability of the chairperson.

(Ord. of 5-9-2023)

The City of Montgomery Board of Zoning Appeals shall have the following powers and duties:

(a)

Hear, review, and determine appeals from an order, requirement, decision, or determination made by an administrative official charged with the enforcement of this Ordinance or rule and regulation adopted pursuant thereto.

(b)

Authorize exceptions to the district rules and regulations only in the classes of cases or in particular situations as specified in this Ordinance.

(c)

Hear and decide conditional uses of this Ordinance upon which the board is required to act under this Ordinance.

(d)

Authorize, upon appeal in specific cases only as provided in this Ordinance, a variance to this Ordinance.

(e)

Reverse, affirm, or modify the order, requirement, decision, or determination appealed from so long as the action of the BZA taken on appeal is consistent with the rules, regulations, and requirements of this Ordinance.

(f)

Authorize, upon appeal, the substitution of one legal nonconforming use existing at the effective date of this Ordinance for another similar nonconforming use. Provided further that upon substitution all applicable landscaping requirements of this Code shall be satisfied.

(g)

Promulgate and adopt written rules and regulations concerning:

(1)

The filing of appeals, including the process and forms for appeal;

(2)

Application for variances and conditional uses;

(3)

The giving of notice; and

(4)

The conduct of hearings necessary to carry out the BZA's duties under the terms of this article.

(h)

Keep minutes of the BZA's proceedings.

(i)

Keep an accurate and complete audio record of all BZA proceedings and official actions and keep the audio record in a safe manner, which audio record is accessible within twenty-four hours of demand, for three years.

(j)

Record the vote on all actions taken.

(k)

Take responsibility for the custody and preservation of all papers and documents of the BZA. All minutes and records shall be filed in the office of the BZA and shall be public records.

(l)

With consent of the governing body, hire employees necessary to carry out the duties and responsibilities of the BZA, provided that the governing body sets the salaries.

(m)

Supervise the fiscal affairs and responsibilities of the BZA.

(Ord. of 5-9-2023)

(a)

Purpose and applicability. The purpose of this section is to regulate and limit the continued existence of uses, structures, and lots established prior to the effective date of this Ordinance or any amendment thereto that does not conform to this Code. Any nonconformity created by a change in the classification of property or the text of this Code shall be regulated by the provisions of this article.

(b)

General provisions.

(1)

Nonconforming lots, structures, or uses may continue to exist, be bought or sold, altered, restored, or extended only in accordance with the provisions of this Code.

(2)

Nothing in this Code shall prevent the strengthening or restoring to a safe condition any portion of a nonconforming structure declared unsafe by a proper authority.

(3)

Nothing in this Ordinance shall be interpreted as authorization for or approval of the continuance of the illegal use of a structure or premises in violation of zoning controls in existence at the time of the effective date of legal enactment of this Code.

(4)

Whenever the boundaries of a district shall be changed so as to transfer an area from one district to another district of a different classification, the foregoing provisions shall apply to any nonconformities existing therein.

(5)

Nothing in this section prohibits alterations or additions to or replacement of buildings or structures owned by any farm, industry, or manufacturer, or the use of land presently owned by any farm, industry, or manufacturer but not used for agricultural, industrial, or manufacturing purposes, or the use or acquisition of additional land that may be required for the protection, continuing development, or expansion of any agricultural, industrial, or manufacturing operation of any present or future satellite agricultural, industrial, or manufacturing use.

(c)

Nonconforming uses.

(1)

If a nonconforming use has ceased for one year, abandonment shall be presumed and the nonconforming use shall not resume. Any future use of the land or structures shall conform to and be in accordance with this Ordinance. Abandonment of a nonconforming use shall be presumed if one or more of the following conditions exists, indicating intent on the part of the property owner to abandon the nonconforming use:

a.

When the intent of the owner to discontinue the use is apparent;

b.

Utilities, such as water, gas, and electricity to the property have been disconnected;

c.

The property, buildings, and grounds, have fallen into disrepair as evidenced by proper code violation documentation;

d.

When the nonconforming use has been replaced by a conforming use;

e.

When the nonconforming use has been changed to a use permitted or conditional use by the City of Montgomery; or

f.

The business license issued by the City of Montgomery has expired.

(2)

The zoning officer shall be responsible for preparing a list of all nonconforming uses existing at the time of the legal enactment of this Ordinance and such list shall be maintained for public use and information.

(3)

Once a nonconforming use has been changed or converted to a conforming use, it shall not thereafter be used for any nonconforming use.

(d)

Nonconforming buildings or structures.

(1)

A lawful nonconforming structure that is damaged the extent of fifty percent or more of its appraised value, as valuated within twelve months of when the damage occurred, shall not be restored unless it is in full conformance with this Code, except that single-family homes may be rebuilt within the original building's boundaries and no taller than the original building unless exceeding the boundaries or height of the original building would not increase the structures nonconformity.

(2)

A lawful nonconforming structure that is damaged, by neither malfeasance nor wanton disregard by an interested party, to the extent of less than fifty percent of the structure' appraised value, as valuated within twelve months of when the damage occurred, may be reconstructed, provided that:

a.

The reconstructed structure shall not exceed the height, area, or volume of the original structure; and

b.

Reconstruction shall be commenced within one year from the date the structure was destroyed or condemned and shall be carried on without interruption.

(3)

In the event an aggrieved person contests the appraised value determination, three arbitrators shall be appointed, one by city council, one by the aggrieved party, and one by the two arbitrators or one by the board of zoning appeals if the two arbitrators cannot agree on the third arbitrator. Any determination regarding the percentage of damage made by the three arbitrators shall be deemed the official decision of the BZA.

(4)

The extension of a lawful use to any portion of a nonconforming structure shall not be deemed the extension of a nonconforming use.

(e)

Nonconforming lot.

(1)

Except as provided in this section, a nonconforming vacant lot existing and of official record as of the effective date of this Ordinance may be developed for any of the uses permitted by these regulations in the zoning district in which it is located, provided that the use meets all applicable yard and setback requirements for the zoning district in which the lot is located.

(2)

A nonconforming vacant lot shall not be developed if it could be combined with an adjoining lot owned by the same person on or after the effective date of these regulations in order to create a single lot. Where an owner owns adjoining property, construction may occur across the lot lines if that is the only way the yard requirements may be met without a variance. If said combination, however, results in the creation of a single lot that is more than one and one-half times the minimum lot width or area required in the zoning district, then the single lot may be divided into two lots of equal width and area without being further classified as nonconforming. For the purposes of this section, "adjoining" shall be deemed to mean the sharing of one or more common lot lines and access to both lots can be provided by the same street without crossing that street.

(f)

Nonconforming accessory uses and structures. No nonconforming accessory use or accessory structure shall continue after the principal use or structure is terminated by abandonment, damage, or destruction unless such accessory use or accessory structure thereafter is made to conform to the standards for the zoning district in which it is located. No nonconforming accessory use or structure shall become or replace any terminated principal nonconforming use or structure.

(g)

Enlargement or extension of a nonconforming use.

(1)

Nonconforming structures used for a permitted use may be enlarged, provided that the enlargement shall not create any additional nonconformity or increase the degree of the existing nonconformity of such structure.

(2)

Nonconforming structures and uses may enlarge principal structures by adding decks or porches provided structural nonconformities are not increased and that all requirements of this Code are met, including but not limited to setback and yard requirements.

(3)

Nonconforming residential uses of single-family residential structures may enlarge or extend principal residential structures provided that all requirements of this Code are met, including but not limited to setback and yard requirements, and provided that the enlargement or extension does not increase the number of dwelling units.

(4)

Nonconforming uses existing at the time this Ordinance was passed, or at the time a subsequent amendment creates the nonconforming use, may extend within the building that housed the nonconforming use at the time this Ordinance was passed, or at the time a subsequent amendment creates the nonconforming use, provided that the area to which the nonconforming use extends was manifestly designed or arranged to accommodate such use, and that no structural alterations are made within the building in order to allow the use to extend, except those that may be required by the building code.

(5)

Nonconforming uses existing at the time this Ordinance was passed, or at the time a subsequent amendment creates the nonconforming use, may extend within the building that housed the nonconforming use at the time this Ordinance was passed, or at the time a subsequent amendment creates the nonconforming use, provided that such enlargement or extension may occur once and shall not exceed more than twenty-five percent of the floor area.

(6)

Enlargement or extension approval shall be void if construction work does not begin within one year from the date of approval, or if work is suspended or abandoned for a period of ninety days at any time after the work is commenced.

(7)

All enlargement or extension of a nonconforming use must comply with the applicable floodplain management requirements.

(8)

Any enlargement or extension onto an adaject parcel adheres to setback and yard requirements as if all parcels on which the use takes place were a singular parcel.

(Ord. of 5-9-2023)

(a)

A variance is a deviation from the minimum standards of this Ordinance and shall not involve permitting land uses that are otherwise prohibited in the zoning district nor shall it involve changing the zoning classifications of a parcel of land.

(b)

The City of Montgomery Board of Zoning Appeals shall grant a variance to this Ordinance if it finds that the variance:

(1)

Will not adversely affect the public health, safety, or welfare or the rights of adjacent property owners and residents;

(2)

Arises from special conditions or attributes that pertain to the property for which a variance is sought and that were not created by the person seeking the variance;

(3)

Would eliminate an unnecessary hardship and permit a reasonable use of the land; and

(4)

Will allow the intent of this Ordinance to be observed and substantial justice done.

(Ord. of 5-9-2023)

An appeal from any order, requirement, decision, or determination made by the zoning officer or any other person charged with the enforcement of this Ordinance shall be filed by an aggrieved person with the City of Montgomery Board of Zoning Appeals. The appeal shall:

(a)

Specify the grounds for appeal;

(b)

Be filed within thirty days of the date of the original order, requirement, decision, or determination made by the zoning officer, which time period shall be jurisdictional in nature;

(c)

Be on the form prescribed by the board; and

(d)

Upon request of the City of Montgomery Board of Zoning Appeals, the zoning officer shall transmit all documents, plans, and papers constituting the record of the action from which the appeal was taken.

(Ord. of 5-9-2023)

(a)

Within ten days of receipt of the appeal by the City of Montgomery Board of Zoning Appeals (BZA), the BZA shall set a time for the hearing of the appeal and give notice. The hearing on the appeal must be held within forty-five days of receipt of the appeal by the board.

(b)

At least fifteen days prior to the date set for the hearing on the appeal, the BZA shall publish a notice of the date, time, and place of the hearing on the appeal as a Class I legal advertisement, pursuant to the West Virginia Code, and written notice shall be given to the interested parties. The publication area shall be the area covered in the appeal.

(c)

The BZA may require the party taking the appeal to pay for the cost of public notice and written notice to interested parties.

(d)

At the hearing, any party may appear in person, by agent, or by an attorney licensed to practice in this state.

(e)

Every decision by the BZA shall be in writing and state specific findings of fact and conclusions of law on which the BZA based its decision. If the BZA fails to provide findings of fact and conclusions of law adequate for decision by the circuit court and as a result of the failure, the circuit court returns an appealed matter to the BZA and dismisses jurisdiction over an applicant's appeal without deciding the matter, whether the court returns the matter with or without restrictions, the BZA shall pay any additional costs for court filing fees, service of process, and reasonable attorney's fees required to permit the person appealing the BZA's decision to return the matter to the circuit court for the completion of the appeal.

(f)

The written decision by the BZA shall be rendered within thirty days after the hearing. If the BZA fails to render a written decision within thirty days after the hearing, then any party may pursue additional legal remedies to obtain a decision, including, but not limited to, seeking a writ of mandamus.

(g)

When an appeal has been filed with the BZA, all proceedings and work on the premises in question shall be stayed, except as provided below:

(1)

If the official or board from where the appeal was taken certifies in writing to the BZA that a stay would cause imminent peril to life or property;

(2)

Upon further administrative proceedings, including, but not limited to, submissions to and reviews by the staff or any administrative body; or

(3)

Upon engineering or architectural work that does not disturb the real estate beyond what is necessary to complete engineering, survey work, or other tests.

(h)

Petition for writ of certiorari. The final decision of the City of Montgomery Board of Zoning Appeals shall be subject to review by the applicable Circuit Court of West Virginia, by certiorari, as provided by West Virginia Code Section 8A-9-1 et seq.

(i)

Nothing in this section prevents a party from obtaining an injunction.

(Ord. of 5-9-2023)

APPENDIX A:
OFFICIAL ZONING MAP

(Ord. of 5-9-2023)