It is the general policy of the county in accordance with the provisions of Code of Virginia, § 15.2-2283 to provide for the orderly development of land, for all purposes, through zoning and other land development legislation. Frequently, when competing and incompatible uses conflict, traditional zoning methods and procedures are inadequate. In these cases, more flexible and adaptable zoning methods are needed to permit differing land uses and at the same time to recognize effects of change. It is the purpose of this article to provide a more flexible and adaptable zoning method to cope with situations found in such zones through conditional zoning, whereby a zoning reclassification may be allowed subject to certain conditions proffered by the zoning applicant for the protection of the community that are not generally applicable to land similarly zoned. The provisions of this article shall not be used for the purpose of discrimination in housing.

(Code 1999, § 9-251)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2296.

(a)

Any owner of property making application for rezoning or amendment to the zoning map as part of the application may voluntarily proffer in writing reasonable conditions prior to any public hearing before the board of supervisors, which shall be in addition to the regulations provided for the applicable zoning district or zone by this chapter, provided that:

(1)

The rezoning itself must give rise for the need for the conditions;

(2)

The conditions shall have a reasonable relation to the rezoning;

(3)

All such conditions shall be in conformity with the New Kent County Comprehensive Plan.

(b)

If proffered conditions include the dedication of real property or payment of cash, such property shall not transfer and such payment of cash shall not be made until the facilities for which such property is dedicated or cash is tendered are included in the capital improvement program, provided that nothing in this section shall prevent the acceptance of proffered conditions which are not normally included in the capital improvement program.

(c)

If proffered conditions include the dedication of real property or the payment of cash, the proffered conditions shall provide for the disposition of the property or cash payment if the property or cash payment is not used for the purpose for which proffered.

(d)

If proffered conditions include a requirement for the dedication of real property of substantial value or substantial cash payments for or construction of substantial public improvements, the need for which is not generated solely by the rezoning itself, then no amendment to the zoning map for the property subject to such conditions, nor the conditions themselves, nor any amendments to the text of the zoning ordinance with respect to the zoning district applicable thereto initiated by the board of supervisors, which eliminate, or materially restrict, reduce, or modify the uses, the floor area ratio, or the density of use permitted in the zoning district applicable to such property, shall be effective with respect to such property unless there has been mistake, fraud, or a change in circumstances substantially affecting the public health, safety or welfare.

(Code 1999, § 9-252; Ord. No. O-17-05, 5-9-2005)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2297.

Upon the approval of any such rezoning or amendment to this chapter, all conditions proffered and accepted by the board of supervisors shall be deemed part of this chapter and nonseverable therefrom, and shall remain in force and continue in effect until amended or varied by the board of supervisors in accordance with Code of Virginia, § 15.2-2302. However, such conditions shall continue if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning ordinance. All such conditions shall be in addition to the regulations provided for in the zoning district by this chapter.

(Code 1999, § 9-253)

Each conditional rezoning shall be designated on the zoning map by an appropriate symbol designed by the zoning administrator. In addition, the zoning administrator shall keep and maintain a conditional zoning index which shall be available for public inspection and which shall provide ready access to the ordinance creating such conditions.

(Code 1999, § 9-254)

Each application for rezoning which proposes conditions to be applied shall be accompanied by the following items beyond those required by conventional rezoning requests.

(1)

A statement detailing the nature and location of any proffered conditions and those proposed circumstances which prompted the proffering of such conditions.

(2)

A signed statement by both the applicant and owner in the following form:

I hereby proffer that the development of the subject property of this application shall be in strict accordance with the conditions set forth in this submission.

(Code 1999, § 9-255)

(a)

Proffered conditions shall include written statements, development plans and materials proffered in accordance with the provisions of this article and approved by the board of supervisors in conjunction with the approval of a change in zoning or an amendment to the zoning map.

(b)

Upon approval, any site plan, subdivision plat or development plan thereafter submitted for the development of the property in question shall be in substantial conformance with all proffered conditions and no development shall be approved by any county official in the absence of such substantial conformance. For the purpose of this section substantial conformance shall mean that conformance which leaves a reasonable margin for adjustment due to final engineering data but conforms with the general nature of the development, the specific uses and the general layout depicted by the plans and other materials presented by the owner and the applicant.

(Code 1999, § 9-256)

The zoning administrator shall be vested with all necessary authority on behalf of the county to administer and enforce conditions attached to a rezoning or amendment to a zoning map including:

(1)

The ordering in writing of the remedy of any noncompliance with such conditions;

(2)

The bringing of legal action to ensure compliance with such conditions including injunction, abatement or other appropriate action or proceeding; and

(3)

Requiring a guarantee in an amount sufficient for or conditioned upon the construction of any physical improvements required by the conditions, or a contract for the construction of such improvements and the contractor's guarantee, in like amount and so conditioned, which guarantee may be reduced and/or released by the zoning administrator upon the submission of satisfactory evidence that construction of such improvements has been completed in whole or in part. Failure to meet all conditions shall constitute cause to deny the issuance of any required use, occupancy or building permits as may be appropriate.

(Code 1999, § 9-257)

(a)

Any zoning applicant who is aggrieved by a decision of the zoning administrator made pursuant to the provisions of section 98-787 may petition the board of supervisors for review of the decision of the zoning administrator. All petitions for review shall be filed with the zoning administrator and with the clerk within 30 days from the date of the decision for which review is sought and shall specify the grounds upon which the petitioner is aggrieved.

(b)

The zoning administrator shall forthwith transmit to the board of supervisors all of the papers constituting the record upon which the action appealed from was taken, and the board of supervisors shall proceed to hear the appeal at its next regularly scheduled meeting.

(c)

An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board of supervisors after notice of appeal has been filed with him that by reason of the facts stated in the certificate a stay would in his opinion cause imminent peril to life or property. In such case the proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of supervisors or by a court of record, on application and on notice to the zoning administrator and for good cause shown.

(Code 1999, § 9-258)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2301.

The provisions contained in this article shall be considered separate from, supplemental and in addition to the provisions contained elsewhere in this chapter or other county ordinances. Nothing contained in this article shall be construed as excusing compliance with all other applicable provisions of this Code or other county ordinances.

(Code 1999, § 9-259)

Nothing in this article shall be construed to affect or impair the authority of the board of supervisors to:

(1)

Accept proffered conditions which include provisions for timing or phasing of dedications, payments or improvements; or

(2)

Accept or impose valid conditions pursuant to Code of Virginia, § 15.2-2286(A)(3), or other provision of law.

(Code 1999, § 9-260)