(a)

There is hereby established a board of zoning appeals which shall consist of five residents of the county appointed by the circuit court of the county. Their terms of office shall be for five years each, and the term of one member shall expire each year. The secretary of such board of zoning appeals shall notify the court at least 30 days in advance of the expiration of any term of office and shall also notify the court promptly if any vacancy occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves. Members of the board of zoning appeals shall hold no other public office in the county except that one may be a member of the local planning commission. A member whose term expires shall continue to serve until his successor is appointed and qualifies.

(b)

With the exception of its secretary and the alternates, the board of zoning appeals shall elect from its own membership its officers who shall serve annual terms as such and may succeed themselves. The board of zoning appeals 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. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the board of zoning appeals. The board of zoning appeals may make, alter and rescind rules and forms for its procedures consistent with ordinances of the county and general laws of the commonwealth. The board of zoning appeals shall keep a full public record of its proceedings and shall submit a report of its activities to the board of supervisors at least once each year. Any board of zoning appeals member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by the court which appointed him after a hearing held after at least 15 days' notice.

(c)

Members of the board of zoning appeals shall serve without pay other than for traveling expenses. Within the limit of funds appropriated by the board of supervisors, the board of zoning appeals may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. The contracting for any such services must be approved by the board of supervisors.

(d)

Meetings of the board of zoning appeals shall be held at the call of its chairman or at such time as a quorum of the board of zoning appeals may determine. The board of zoning appeals shall keep minutes of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, records indicating such facts. All records of the board of zoning appeals shall be filed immediately with the zoning administrator's office and shall be matters of public record.

(Code 1999, § 9-329)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2308.

The board of zoning appeals will 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 authorize upon appeal or original application in specific cases such variance as defined in the Code of Virginia § 15.2-2201, as amended, and section 98-2 of the County Code; provided that the burden of proof will be on the applicant for a variance to prove by a preponderance of the evidence that their application meets the defined standards for a variance and the following criteria.

a.

A variance can be granted only in accordance with the Code of Virginia § 15.2-2309, as amended.

b.

No such variance will be considered except after notice and hearing as required by the Code of Virginia § 15.2-2204, as amended.

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 after notice and hearing as provided by Code of Virginia, § 15.2-2204, as amended. 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 of zoning appeals may give such notice by first-class mail rather than by registered or certified mail.

(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 the question, and after public hearing with notice as required by Code of Virginia, § 15.2-2204, as amended, the board of zoning appeals may interpret the map in such a way as to carry out the intent and purpose of this chapter 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 of zoning appeals may give such notice by first-class mail rather than by registered or certified mail. The board of zoning appeals does not have the power to change substantially the locations of district boundaries as established by ordinance.

(5)

No provision of this section will be construed as granting any board the power to rezone property or to base board of zoning appeals decisions on the merits of the purpose and intent of local ordinances duly adopted by the governing body.

(Code 1999, § 9-330; Ord. No. O-20-02, 6-10-2002; Ord. No. O-03-25, 6-9-2025)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2309.

(a)

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 or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of Code of Virginia, § 15.2-2280 et seq., or this chapter. Any written notice of a zoning violation or a written order of the zoning administrator, dated on or after July 1, 1993, must include a statement informing the recipient that they 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 will be final and unappealable if not appealed within 30 days. The appeal period must not commence until the statement is given. The appeal must be taken within 30 days after the decision appealed from by filing with the zoning administrator, and with the board of zoning appeals, a notice of appeal specifying the grounds thereof. The zoning administrator will forthwith transmit to the board of zoning appeals all the papers constituting the record upon which the action appealed from was taken.

(b)

An appeal stays all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board of zoning appeals that by reason of facts stated in the certificate a stay would in his or her opinion cause imminent peril to life or property, in which case proceedings will not be stayed otherwise than by a restraining order granted by the board of zoning appeals or by a court of record, on application and on notice to the zoning administrator and for good cause shown.

(c)

In no event will a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by the zoning administrator or any other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer, unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer or through fraud. The 60-day limitation period will not apply in any case where, with the concurrence of the attorney for the board of supervisors, modification is required to correct clerical errors.

(Code 1999, § 9-331(a); Ord. No. O-07-13, 10-15-2013; Ord. No. O-03-25, 6-9-2025)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2311.

Editor's note— Ord. No. O-03-25, adopted June 9, 2025, repealed § 98-1024. Former § 98-1024 pertained to applications for special exceptions and variances and derived from § 9-331(b) of the Code of 1999.

The board of zoning appeals will 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 make its decision within 90 days of the filing of the application or appeal. In exercising its powers, the board of zoning appeals may reverse or affirm, wholly or partly, or may modify, an order, requirement, decision or determination appealed from. The concurring vote of a majority of the membership of the board of zoning appeals will be necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide 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 of zoning appeals must keep minutes of its proceedings and other official actions which will be filed in the office of the board of zoning appeals and must be public records. The chairman of the board of zoning appeals, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(Code 1999, § 9-331(c); Ord. No. O-03-25, 6-9-2025)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2312.

Editor's note— Ord. No. O-15-09, adopted Aug. 10, 2009, repealed § 98-1026 which pertained to variances from floodplain requirements and additional factors and derived from § 9-331(d) of the 1999 Code.

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

(Code 1999, § 9-332; Ord. No. O-03-25, 6-9-2025)

State Law reference— Similar provisions, Code of Virginia, § 15.2-2314.

(a)

Pursuant to Code of Virginia, § 15.2-2286.A.4, as amended, the zoning administrator may grant a modification from provisions contained in this chapter with respect to physical requirements on a lot or parcel of land, including, but not limited to, size, height, location or features of or related to any building, structure or improvements upon finding in writing all of the following:

(1)

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

(2)

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

(3)

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

(4)

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;

(5)

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

(6)

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

(7)

It will not create an unsafe condition with respect to both other properties and public streets.

(c)

Prior to the granting of a modification, the zoning administrator must give all adjoining property owners written notice of the request for modification, and an opportunity to respond to the request within 21 days of the date of the notice. Notice must be sent by first class mail and an affidavit of such mailing must be kept in the file.

(d)

The zoning administrator will make a decision on the application for modification and issue a written decision with a copy provided to the applicant and any adjoining landowner who responded in writing to the notice sent pursuant to this paragraph.

(e)

The decision of the zoning administrator must constitute a decision within the purview of Code of Virginia, § 15.2-2311, as amended, and may be appealed to the board of zoning appeals as provided by section 98-1023.

(Ord. No. O-20-07, 9-24-07; Ord. No. O-03-25, 6-9-2025)