(a)

Establishment.

(1)

The board of zoning appeals consisting of five (5) members who are residents of the city, and pursuant to § 15.2-2308 of the Code of Virginia, shall continue as appointed by the circuit court of the city. The board shall serve without pay. Appointments for vacancies occurring otherwise than by expiration of term shall, in all cases, be for the unexpired term. Members may be reappointed to succeed themselves. The board secretary shall notify the court at least thirty (30) days in advance of the expiration of any term and shall also notify the court if a vacancy occurs.

(2)

The term of office shall be for five (5) years; except that original appointments shall be made for such terms that the term of one (1) member shall expire each year. One (1) of the five (5) appointed members may be an active member of the planning commission.

(3)

Any board member may be removed for malfeasance in office or for other just cause by the court which appointed him after hearing held after at least fifteen (15) days' notice.

(4)

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.

(5)

The board shall choose annually its own chairman and, in his absence, an acting chairman; the city zoning administrator shall act as the secretary of the board. These officers may succeed themselves.

(b)

Meetings.

(1)

The board of zoning appeals shall adopt such rules and regulations as it may consider necessary.

(2)

The meetings of the board shall be held at the call of its chairman and at such times as the board may determine.

(3)

The chairman, or, in his absence, the acting chairman, may administer oaths and compel the attendance of witnesses.

(4)

All meetings of the board shall be open to the public.

(5)

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 a public record.

(6)

A quorum shall be at least three (3) members.

(7)

A favorable vote of three (3) 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 upon which the board is required to pass.

(c)

Powers and duties.

(1)

Administrative appeal. 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. No such appeal shall be heard except after notice and hearing as provided by § 15.2-2204 of the Code of Virginia.

(2)

Variance.

a.

To authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship; provided, that the spirit of this chapter shall be observed and substantial justice done, as follows:

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of this chapter, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property, or of the use or development of property immediately adjacent thereto, the strict application of the terms of this chapter would effectively prohibit or unreasonably restrict the use of the property or where the board if satisfied, upon the evidence heard by it, that the granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation as distinguished from a special privilege or convenience sought by the applicant; provided, that all variances shall be in harmony with the intended spirit and purpose of this chapter.

b.

No such variance shall be authorized by the board unless it finds:

1.

That the strict application of this chapter would produce undue hardship.

2.

That such hardship is not shared generally by other properties in the same zoning district and the same vicinity.

3.

That the authorization of such variance will not be substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance.

c.

No such variance shall be authorized except after notice and hearing as required by § 15.2-2204 of the Code of Virginia.

d.

No variance shall be authorized unless the board finds that the condition or situation of the property concerned or the intended use of the property 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 this chapter.

e.

In authorizing a variance the board may impose such conditions regarding the location, character and other features of the proposed structure of 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.

(3)

Variances Factors to be considered for floodplain management. Variances shall be issued only upon (i) a showing of good and sufficient cause, (ii) after the board of zoning appeals has determined that failure to grant the variance would result in exceptional hardship to the applicant, and (iii) after the board of zoning appeals has determined that the granting of such variance will not result in (a) unacceptable or prohibited increases in flood heights, (b) additional threats to public safety, (c) extraordinary public expense; and will not (d) create nuisances, (e) cause fraud or victimization of the public, or (f) conflict with local laws or ordinances.

While the granting of variances generally is limited to a lot size less than one-half (½) acre, deviations from that limitation may occur. However, as the lot size increases beyond one-half (½) acre, the technical justification required for issuing a variance increases. Variances may be issued by the board of zoning appeals for new construction and substantial improvements to be erected on a lot of one-half (½) acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the provisions of this section. Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that the criteria of this section are met, and the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

In passing upon applications for variances, the board of zoning appeals shall satisfy all relevant factors and procedures specified in other sections of the zoning ordinance and consider the following additional factors:

a.

The danger to life and property due to increased flood heights or velocities caused by encroachments. No variance shall be granted for any proposed use, development, or activity within any floodway district that will cause any increase in the one hundred (100)-year flood elevation.

b.

The danger that materials may be swept on to other lands or downstream to the injury of others.

c.

The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions.

d.

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners.

e.

The importance of the services provided by the proposed facility to the community.

f.

The requirements of the facility for a waterfront location.

g.

The availability of alternative locations not subject to flooding for the proposed use.

h.

The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.

i.

The relationship of the proposed use to the comprehensive plan and floodplain management program for the area.

j.

The safety of access by ordinary and emergency vehicles to the property in time of flood.

k.

The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site.

l.

The historic nature of a structure. Variances for repair or rehabilitation of historic structures may be granted upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

m.

Such other factors which are relevant to the purposes of this ordinance. The board of zoning appeals may refer any application and accompanying documentation pertaining to any request for a variance to any engineer or other qualified person or agency for technical assistance in evaluating the proposed project in relation to flood heights and velocities, and the adequacy of the plans for flood protection and other related matters.

Variances shall be issued only after the board of zoning appeals has determined that the granting of such will not result in (a) unacceptable or prohibited increases in flood heights, (b) additional threats to public safety, (c) extraordinary public expense; and will not (d) create nuisances, (e) cause fraud or victimization of the public, or (f) conflict with local laws or ordinances.

Variances shall be issued only after the board of zoning appeals has determined that the variance will be the minimum required to provide relief.

The board of zoning appeals shall notify the applicant for a variance, in writing and signed by the building official, that the issuance of a variance to construct a structure below the one hundred (100)-year flood elevation (a) increases the risks to life and property and (b) will result in increased premium rates for flood insurance.

A record shall be maintained of the above notification as well as all variance actions, including justification for the issuance of the variances. Any variances that are issued shall be noted in the annual or biennial report submitted to the Federal Insurance Administrator.

(4)

Special exception (use permissible on appeal).

a.

To hear and decide upon applications for such special exceptions (uses permissible on appeal) as may be specifically authorized by the City of Norton Zoning Chapter. Applications for special exceptions (uses permissible on appeal) may be made by any property owner, tenant, government official, department, board or bureau. Such application shall be made to the city manager or his designee in accordance with the rules adopted by the board. The board may impose such conditions regarding the location, character and other features of the proposed structure of 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. No such special exception (use permissible on appeal) will be granted except after notice and hearing as provided by § 15.1-431 of the Code of Virginia.

b.

Prior to making a decision on any special exception (use permissible on appeal), the board shall request, receive and consider a report thereon from the planning commission. The report shall state, among other things as the commission may decide, the effect, if any, of the application upon the policies and directives contained in the city's adopted comprehensive plan.

c.

If an application for a special exception is denied by the board, no application shall be considered by the board of zoning appeals within one (1) year of the final action of the board upon a prior application covering any of the same lot, parcel or portion thereof.

(5)

Interpretation of district boundaries. 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 any such question, and after public hearing with notice as required by § 15.2-2204 of the Code of Virginia, the board may interpret the map in such way as to carry out the intent and purpose of this chapter for the particular section or district in question. The board shall not have the power, however, to rezone property or substantially to change the locations of district boundaries as established by ordinance.

(d)

Procedural requirements.

(1)

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 or municipality affected by any decision, or from any order, requirement, decision or determination made by any administrative officer in the administration or enforcement of this chapter or any ordinance adopted pursuant thereto. Such appeal shall be taken within thirty (30) days after the decision appealed from by filing with the city manager or his designee, and with the board, a notice of appeal specifying the grounds thereof. The city manager or his designee shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. An appeal shall stay all proceedings in furtherance of the action appealed from unless the city manager or his designee 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 on notice to the city manager or his designee and for good cause shown.

(2)

The board shall fix a reasonable time for the hearing of an application or appeal, give notice thereof as well as due notice to the parties in interest and decide the same within ninety (90) days.

(3)

In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify, the order, requirement, decision or determination appealed from. The concurring vote of three (3) members shall 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 special exception (use permissible on appeal) or variance from this chapter. The board shall keep minutes of its proceedings and other public official actions which shall be filed in the office of the board and shall be public records. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(4)

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 chapter, 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 court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the administrative officer to the board of zoning appeals.

(e)

Court appeal.

(1)

Any person jointly or severally aggrieved by any decision of the board of zoning appeals, or any taxpayer or any officer, department, board or bureau of the city, may present to the circuit or corporation court of the city a petition specifying the grounds on which aggrieved within thirty (30) days after the filing of the decision in the office of the board.

(2)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of zoning appeals and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten (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.

(3)

The board of zoning appeals 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.

(4)

If, upon the hearing, it shall appear to the court that testimony is necessary for their 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.

(5)

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 a return of the record pursuant to the writ of certiorari.

(Ord. of 1-5-16, § 1(Exh. A)