The board of zoning appeals, hereafter called the board, shall have the following powers and duties:

(1)

Alleged administrative errors: The board is empowered 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. In deciding such appeals, the determination of the administrative office shall be presumed to be correct. At a hearing or an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence.

(2)

Variances: The board is empowered to authorize on appeal or original application in specific cases a 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 section 45-3203.

(3)

Special exceptions: The board is empowered to hear and decide upon applications for such special exceptions as are authorized in this chapter.

(4)

Interpretation of zoning district boundary lines: The board is empowered to hear and decide applications for interpretation of the zoning district map where there is any uncertainty as to the location of a district boundary.

(5)

Exceptions to Chesapeake Bay preservation requirements: The board is empowered to hear and decide applications for exceptions to the Chesapeake Bay preservation requirements as specified in section 37.1-55.

(6)

No power to rezone: No provision of this chapter shall be construed as granting the board the power to rezone property or to base board decisions on the merits of the purpose and intent of any ordinance.

(Ord. No. 5028-97, § 1; Ord. No. 5484-00, § 1; Ord. No. 5992-03, § 1; Ord. No. 7193-15)

(a)

An appeal to the board for an alleged administrative error may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the zoning administrator.

(b)

An appeal must be taken within thirty (30) days after the decision appealed from by filing with the zoning administrator and with the board a notice of appeal specifying the grounds therefor. Notwithstanding the foregoing, appeals for a notice of violation involving temporary or seasonal commercial uses, parking of commercial vehicles in residential zoning districts, or similar short term, recurring violations must be taken within ten (10) days after notice of the violation is provided.

(c)

Upon receipt of the notice of appeal, the zoning administrator shall forthwith transmit to the board all papers constituting the record upon which the action appealed from was taken. Such papers shall also be made available without cost to the appellant within three (3) business days of providing such materials to the board.

(d)

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 with notice to the zoning administrator, and for good cause shown.

(e)

The board shall fix a reasonable time for the hearing of an appeal, give public notice once a week for two (2) successive weeks in some newspaper published, or having general circulation in the City of Newport News, as well as due notice to the parties in interest and decide the same within ninety (90) days of the filing of the appeal. The public notice shall specify the time and place of the hearing and final notice shall appear not less than six (6) nor more than twenty-one (21) days before the date of the public hearing. The term two (2) successive weeks shall mean that such notice shall be published at least twice in a newspaper with not less than six (6) days elapsing between the first and second publication. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination from which appealed.

(f)

The determination of the administrative officer shall be presumed to be correct. At a hearing on appeal, the administrative officer shall explain the basis for the officer's determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence.

(Ord. No. 5028-97, § 1; Ord. No. 5484-00, § 1; Ord. No. 6713-10; Ord. No. 7193-15; Ord. No. 8102-25)

(a)

An application for a variance may be made by any property owner, tenant, government official, department, board or bureau and shall be filed with the zoning administrator. Applications shall not be processed unless the applicant provides satisfactory evidence that any delinquent real estate taxes, nuisance charges, stormwater management utility fees, and any other charges owed to the city that constitute a lien on the subject property have been paid.

(b)

Such application shall completely disclose the equitable ownership of the real estate to be affected including, in the case of corporate ownership, the names of stockholders, officers and directors and in any case the names and addresses of all of the real parties of interest. However, the requirement of listing names of stockholders, officers and directors shall not apply to a corporation whose stock is traded on a national or local stock exchange and having more than five hundred (500) shareholders. In the case of a condominium, the requirement shall apply only to the title owner, contract purchaser, or lessee if they own ten (10) percent or more of the units in the condominium.

(c)

The board shall conduct a hearing on said application subsequent to the notice requirements contained in subsection 45-3202(e).

(d)

"Variance" means, in the application of this chapter, a reasonable deviation from those provisions regulating the shape, size, or area of a lot or parcel of land; or the size, height, area, bulk, or location of a building or structure when the strict application of the ordinance would unreasonably restrict the utilization of the property, and such need for a variance would not be shared generally by other properties, and provided such variance is not contrary to the purpose of the ordinance. It shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning.

(1)

The board shall not authorize a variance unless it finds:

a.

That the strict application of this ordinance would unreasonably restrict utilization of the property or 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 or alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability, and 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.

b.

That the authorization of such variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area.

c.

That the condition or situation of the property concerned is not 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.

d.

That 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.

e.

That the relief or remedy sought by the variance application is not available through a special exception process or through modification of a zoning ordinance, both of which are authorized in this chapter.

(e)

Any variance granted to provide a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability may expire when the person benefitted by it is no longer in need of the modification to such property or improvements provided by the variance, subject to the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990 (42 U.S.C. §12131 et seq.) as applicable.

(f)

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 insure that the conditions imposed are being and will continue to be complied with. Notwithstanding any other provision of law, the property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state law and local ordinances. The use or the structure permitted by the variance may not be expanded, unless the expansion is within an area of the site or part of the structure for which no variance is required. Where expansion is proposed within an area of the site or part of the structure for which a variance is required, the expansion may not occur unless an additional variance is obtained.

(Ord. No. 5028-97, § 1; Ord. No. 5867-02; Ord. No. 5873-02; Ord. No. 6276-06, § 1; Ord. No. 6541-08, § 1; Ord. No. 6619-09; Ord. No. 7193-15; Ord. No. 7315-16; Ord. No. 7476-18, § 1; Ord. No. 7765-22, § 1)

(a)

Applications for special exceptions may be made by any property owner, tenant, government official, department, board or bureau and shall be filed with the director of planning or his authorized representative. Applications shall not be processed unless the applicant provides satisfactory evidence that any delinquent real estate taxes, nuisance charges, stormwater management utility fees, and any other charges owed to the city that constitute a lien on the subject property have been paid.

(b)

The board shall refer all special exception applications to the city planning commission for its recommendation. The city planning commission shall review the referred application and submit its recommendation to the board within sixty (60) days of the first meeting of the planning commission subsequent to referral. The planning commission report shall state whether the proposed special exception is in harmony with the intent of the applicable regulations in this zoning ordinance. In making its report, the planning commission may recommend to the board any conditions which should be attached to the special exception as to make it compatible with surrounding development. Failure of the planning commission to report within the prescribed sixty-day period shall be construed as an affirmative recommendation.

(c)

Prior to action by the planning commission on any special exception, the applicant must meet with the director of planning, or his representative, to determine the appropriateness of the application and who may require such supporting information as he may deem to be necessary, including:

(1)

A legal description of the property for which the special exception is requested.

(2)

Complete disclosure of the equitable ownership of the real estate to be affected including, in the case of corporate ownership, the names of stockholders, officers and directors and in any case the names and addresses of all of the real parties of interest. However, the requirement of listing names of stockholders, officers and directors shall not apply to a corporation whose stock is traded on a national or local stock exchange and having more than five hundred (500) shareholders. In the case of a condominium, the requirement shall apply only to the title owner, contract purchaser, or lessee if they own ten (10) percent or more of the units in the condominium.

(3)

One (1) electronic copy, one (1) eleven (11) by seventeen (17) inches paper copy and one (1) full-sized twenty-four (24) by thirty-six (36) inches scalable paper copy of a plan, including a drawing(s) of the proposed special exception. Such drawing shall be to scale in a manner to show clearly the following information:

a.

The actual dimensions and shape of the property.

b.

The exact size and location on the property of existing and proposed structures.

c.

The existing and proposed uses of all structures and open areas.

d.

The name of the owner, as well as the name of any other person preparing the plan, together with the north point, scale and number of sheets of the plan.

e.

Such additional supporting information as may be deemed necessary by the director of planning to perform the evaluations required herein, including but not limited to topography, ingress and egress, vegetation, surrounding land use, proposed connections to existing or proposed water, sewer and drainage facilities.

(d)

After notice as specified in section 45-3202(e), the board shall conduct a hearing on the application. The board may approve or deny the application and may impose such conditions relating to the use for which a special exception is granted as it may deem necessary in the public interest and may require a guarantee or bond to insure that the conditions imposed are being and will continue to be complied with.

(e)

The board shall be authorized to hear and decide only those special exceptions listed below:

(1)

The board may grant a special exception increasing the height and or floor area of accessory buildings and structures provided that:

a.

The height or floor area increase is in harmony with the appearance of surrounding properties and does not create a harmful effect to the neighborhood; and

b.

The accessory building and structure shall have at least the same required rear and side yard setbacks as the main building.

c.

The board, as a condition of approval, may require additional side and rear yard setbacks for the accessory building and structure to be heightened or enlarged.

(2)

A nonconforming lot of record having less than fifty (50) feet of frontage may be improved with a single-family detached dwelling provided that:

a.

The single-family dwelling shall be two (2) stories or of similar design to abutting structures.

b.

The front yard setback of the single-family dwelling shall be the average of the setbacks of existing buildings on the block, but not less than ten (10) feet.

c.

The minimum side yard setback shall be five (5) feet.

d.

An attached or detached garage shall be provided. However, if the garage is attached, it shall be attached on the side of the dwelling and recessed eighteen (18) feet from the front of the dwelling or attached in the rear of the dwelling.

e.

The proposed dwelling is in harmony with the appearance of surrounding properties and does not create a harmful effect to the neighborhood.

(3)

The board may grant as a special exception in the C1, C2 or C3 zoning districts the construction of a driveway for ingress and egress to any use permitted in the C2, C3, M1 or M2 zoning districts subject to the following provisions:

a.

Access to the site does not otherwise exist over a public street.

b.

A report is obtained from the director of planning to the effect that a public street is not essential to serve the special use being developed or other lands in the same proximity.

c.

It is the judgment of the board that the proposed use and the potential vehicular traffic produced will not adversely affect the general character and development of the immediate area.

(4)

The board may grant as a special exception, in any district where such use is not permitted as a matter of right, facilities for the keeping of horses, ponies, or similar animals provided that:

a.

Such animals are exclusively kept for the recreational purposes of the family living on the premises.

b.

The minimum area of any parcel used for the keeping of not more than two (2) such animals shall be five (5) acres. One-half (½) acre addition to the minimum lot area shall be required for each additional animal kept thereon.

c.

Any building, structure or animal yard used for the housing of such animals shall be located not less than one hundred (100) feet from any property line and not less than one hundred seventy-five (175) feet from any adjacent dwelling.

d.

Such use will not be detrimental to the character of the neighborhood and provided further that other conditions which are imposed to protect the character of the neighborhood shall be observed.

(5)

The board may grant an enlargement of nonconforming uses; provided that:

a.

All yards, height, and other applicable dimensional regulations of the district in which the use is located shall be observed.

b.

Any enlargement of a use shall be made in conformity with the regulations of the most restrictive district in which such use would ordinarily be permitted.

c.

Any enlargement shall be limited to the same premises on which the use existed at the time it became nonconforming; provided, that in no case shall the nonconforming use be expanded across a zoning district boundary into a more restrictive district.

d.

No enlargement of a building or use shall be made to create an entirely new use or to occupy more than one hundred (100) percent additional land area or floor space that was used at the time the use became nonconforming.

e.

Such enlargement is in harmony with the surrounding neighborhood and such reconstruction or enlargement is in the general welfare of the public.

(6)

The board may authorize the outdoor storage of goods and materials when located in the C2 district; provided, that:

a.

Such storage is established as an accessory to a permitted use in the C2 district.

b.

Materials so stored shall not be visible from any public right-of-way.

c.

The storage of such goods or materials is screened or fenced in such manner so as not to detract from the character of the neighborhood.

d.

Appropriate conditions in the form of screening and/or buffer area requirements shall be included to assure the protection of any adjacent residential district or development.

(7)

The board shall authorize as a special exception the use and/or reduction of any buffer area for uses associated with the higher intensity district and not otherwise permitted within the buffer area whenever the board finds the buffer area is screened or fenced in a manner that insures that any authorized concentration of people, cars, noise or associated activities will not adversely affect any use permitted in the abutting lower intensity district and the granting of such special exception is:

a.

Necessary for the reasonable use of the property;

b.

Not detrimental to uses in or permitted in the abutting lower intensity district; and,

c.

Any reduction shall not reduce the required number of trees for the remaining buffer area.

The board in authorizing such special exceptions may impose reasonable conditions as may be required to insure compliance with this provision.

(8)

The board may grant a special exception for a kennel to be located in any residential district for no more than six (6) domesticated animals; provided;

a.

All animals shall be maintained in a healthy condition or, if ill, shall be given appropriate treatment immediately.

b.

Animal pens shall be large enough (within recognized standards) to provide freedom of movement for each animal contained therein.

c.

Any animal pen must be located in the rear yard and at least ten (10) feet away from any property line.

d.

Litter and bedding material shall be changed to prevent odor that could adversely affect or impact neighboring properties.

e.

No person shall utilize any space for the keeping of animals in any manner that is detrimental to the use of the adjacent property or that, because of odor, noise or attraction of flies or other pests, reduces or otherwise unreasonably restrict the rights of adjacent property owners to enjoy the use of their property.

f.

No person shall permit the drainage from any space devoted to animals to contaminate or pollute any stream, watercourse or drainageway, natural or manmade.

g.

No person shall store, stockpile or permit any accumulation of animal waste in any manner whatsoever that, due to odor, attraction of flies or other pests or for any other reason, diminishes the rights of adjacent property owners to enjoy reasonable use of their property.

h.

Such kennel will not adversely affect or impact neighboring properties.

(9)

The board may grant a special exception reducing or eliminating privacy fencing or treed buffers provided all of the following are met:

a.

Any such reduction or elimination is limited to:

1.

Community facilities as specified in article IV., section 45-402, summary of uses by district.

2.

Uses authorized by and located within the Neighborhood Conservation district as defined by article XXXI.

b.

That the applicant shall clearly show that the proposed surface lot:

1.

Requires a lesser amount of fencing or tree screening or no fencing or tree screening; and

2.

The applicant shall clearly demonstrate that the reduction or elimination of the fencing or tree screening is necessary by reason of surface lot location, location of existing fencing, location of adjacent residences and other special circumstances as may warrant such reduction or elimination.

(Ord. No. 5028-97, § 1; Ord. No. 5048-97, § 1; Ord. No. 5205-98; Ord. No. 5752-02; Ord. No. 5867-02; Ord. No. 5873-02; Ord. No. 6445-08; Ord. No. 7315-16; Ord. No. 7765-22, § 1; Ord. No. 7841-22, § 1; Ord. No. 8027-24, § 1)

(a)

An application to the board to interpret the zoning district map where there is uncertainty as to the location of a zoning district boundary may be made by any property owner, government official, department, board or bureau and shall be filed with the zoning administrator.

(b)

After notice to the owners of property affected by any such question and after public hearing with notice as required by section 45-3202(e), the board 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.

(c)

The board shall not have the power to change substantially the locations of district boundaries as established by this chapter.

(Ord. No. 5028-97, § 1)

(a)

An application to the board for an exception to the provisions of Chapter 37.1, Article V, Chesapeake Bay Preservation, of the City Code, as amended, and Sections 37.1-51(b)(1)b., 37.1-51(b)(1)c., 37.1-51(b)(1)d., 37.1-51(b)(1)m., and 37.1-51(b)(2) thereof, may be made by any property owner, government official, department, board or bureau and shall be filed with the city manager or the city manager's designee.

(b)

Applications shall not be processed unless the applicant provides satisfactory evidence that any delinquent real estate taxes, nuisance charges, stormwater management utility fees, and any other charges owed to the city that constitute a lien on the subject property have been paid.

(c)

No exception shall be authorized except after notice and hearing as required by § 15.2-2204 of the Code of Virginia, 1950, as amended, except that only one (1) hearing shall be required before the board. 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 notice may be given by first class mail rather than by registered or certified mail.

(d)

The board may grant exceptions to the provisions of sections 37.1-51(b)(1)b., 37.1-51(b)(1)c., 37.1-51(b)(1)d., 37.1-51(b)(1)m, and 37.1-51(b)(2) upon its making the following findings:

(1)

The requested exception to the criteria is the minimum necessary to afford relief;

(2)

Granting the exception will not confer upon the applicant any special privileges that are denied by Chapter 37.1 to other property owners who are subject to its provisions and who are similarly situated;

(3)

The exception is in harmony with the purpose and intent of Chapter 37.1, Article V and is not of substantial detriment to water quality;

(4)

The exception request is not based upon conditions or circumstances that are self-created or self-imposed;

(5)

Reasonable and appropriate conditions are imposed as warranted that will prevent the allowed activity from causing a degradation of water quality; and

(6)

Other conditions required by the board are met.

(Ord. No. 5992-03, § 1; Ord. No. 6098-05, § 1; Ord. No. 7503-18, § 1; Ord. No. 7765-22, § 1)

Where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of this zoning ordinance by suit filed within fifteen (15) days after the start of construction by a person who had no actual notice of the issuance of the permit, the Newport News Circuit Court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision to the board of zoning appeals.

(Ord. No. 5028-97, § 1)

(a)

Any person or persons jointly or severally aggrieved by any decision of the board or any taxpayer or any administrative official, department, board or bureau of the city, may file with the clerk of the circuit court of the city a petition specifying the grounds upon which aggrieved within thirty (30) days after the final decision 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 must be made and served upon the secretary of the board of zoning appeals or, if no secretary exists, the chair of the board of zoning appeals, which shall not be less than ten (10) days and may be extended by the court. Once the writ of certiorari is served, the board of zoning appeals shall have twenty-one (21) days or as ordered by the court to respond. The allowance of the writ shall not stay proceedings from the decision appealed. The court may grant a restraining order subject to proper application, notice to the board, all based on due cause.

(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 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 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 proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(e)

In the case of an appeal from the board to the circuit court of an order, requirement, decision or determination of a zoning administrator or other administrative officer in the administration or enforcement of any ordinance or provision of state law, the findings and conclusions of the board on questions of fact shall be presumed to be correct. The appealing party may rebut that presumption by proving by a preponderance of the evidence, including the record before the board, that the board erred in its decision. Any party may introduce evidence in the proceedings in the court. The court shall hear any argument on questions of law de novo.

(f)

In the case of an appeal by a person of any decision of the board that denied or granted an application for a variance, exception to the Chesapeake Bay Preservation requirements, or application for a special exception, the decision of the board shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that the board applied erroneous principles of law, or where the discretion of the board is involved, the decision of the board was plainly wrong and in violation of the purpose and intent of the zoning ordinance, or Chesapeake Bay Preservation Ordinance, where applicable.

(g)

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. In the event the decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making the return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the board may request that the court hear the matter on the question of whether the appeal was frivolous.

(Ord. No. 5028-97, § 1; Ord. No. 5668-01, § 1; Ord. No. 5955-03, § 1; Ord. No. 6276-06, § 1; Ord. No. 7648-20, § 1)

(a)

No action shall be taken by the board on any petition for an appeal, an interpretation of the zoning district map, a variance or special exception as provided in this article, or an exception to the Chesapeake Bay preservation requirements until the petitioner shall have paid a filing fee to the City of Newport News in the amount of two hundred fifty dollars ($250.00) which shall not be refundable.

(b)

No application for action by the board shall be processed unless the applicant provides satisfactory evidence that any delinquent real estate taxes, nuisance charges, stormwater management utility fees, and any other charges owed to the city that constitute a lien on the subject property have been paid.

(Ord. No. 5028-97, § 1; Ord. No. 5992-03, § 1; Ord. No. 6418-07, § 1; Ord. No. 7765-22, § 1)

(a)

Deferral of an application: An applicant may request the planning commission or board of zoning appeals to defer action on an application for a special exception, variance or exception to the Chesapeake Bay preservation requirements prior to a public hearing. The applicant shall pay a non-refundable reprocessing fee of one hundred dollars ($100.00) before the request for deferral is considered by the planning commission or board of zoning appeals.

(b)

Withdrawal of an application: An application for a variance, exception to the Chesapeake Bay preservation requirements or special exception may be withdrawn by the applicant prior to a public hearing; provided, such request is filed by 5:00 p.m. on the Thursday prior to the public hearing; however, any re-submittal shall be deemed a new application.

(c)

Denial of application: If the application is denied by the board, substantially the same application shall not be reconsidered within one (1) year of denial.

(Ord. No. 5028-97, § 1; Ord. No. 5247-99; Ord. No. 5992-03, § 1; Ord. No. 7765-22, § 1)