Nutter Fort City Zoning Code
CHAPTER THREE
ADMINISTRATION
§ 1341.01 CONTINUATION OF USE.
Except as otherwise provided in this article, the lawful use of any building, structure or land existing at the time of the enactment of this Zoning Ordinance, or any applicable amendment thereto, may be continued, although such use does not conform to the provisions of the Zoning Ordinance.
(Ord. passed 2-14-1978)
§ 1341.02 REGULATION OF NON-CONFORMING USES.
No existing building or structure devoted to a non-conforming use shall be enlarged, extended, reconstructed or structurally altered, except as follows.
(a) Restoration. If any non-conforming building or structure, which as a result of fire, explosion or other casualty, has less than two-thirds of its fair sale value, including foundation made unsafe or unusable, such non-conforming building or structure may be restored, reconstructed or used as before; provided that, the bulk, height and area requirements shall not be in the excess of those which existed prior to the damage. Such restoration must be completed within one year of such occurrence, or the use of such building, structure or land as a legal non-conforming use shall thereafter be terminated.
(b) Extension and displacement. A non-conforming use shall not be extended, but the extension of a lawful use to any portion of a non-conforming building which existed prior to the enactment of this Zoning Ordinance shall be deemed the extension of such non-conforming use. No non-conforming use shall be extended to displace a conforming use.
(c) Unsafe structures. Any non-conforming building or structure or portion thereof declared unsafe by proper authority may be restored to a proper condition.
(d) Alterations and repairs. A non-conforming building or structure for other than residential purposes may not be reconstructed or structurally altered during its life to an extent that such alterations exceed in aggregate cost two-thirds of the full valuation of the building or structure, exclusive of the value of land, unless such building or structure is changed to a conforming use. A non-conforming building or structure containing residential use may be altered in any way to improve interior livability; provided that, no structural alteration shall be made which would increase the non-conformity with regard to the number of housing units or the bulk of the building or structure. Normal maintenance repairs and incidental alteration of a building or structure containing a non-conforming use shall be permitted; provided that, such repairs and alterations do not extend the volume of area of space occupied by the non-conforming use.
(e) Change of use. A non-conforming use or structure may be changed to another non-conforming use of an equal or more restricted classification; provided that, no structural change, enlargement, extension or reconstruction is made.
(1) A non-conforming use may be changed into a conforming use.
(2) When a non-conforming use is changed into a conforming use or a more restricted non-conforming use, the use of the structure, building or land shall not thereafter be changed into a non-conforming use or a less restricted non-conforming use.
(f) Prior approval. Nothing herein contained shall require any change in the plans, construction or designated use of a building complying with existing laws, a permit for which had been duly granted before the date of adoption of this Zoning Ordinance or any applicable amendment thereto; providing that, such building shall be completed according to such plans as filed within six months from the date of this Zoning Ordinance.
(Ord. passed 2-14-1978)
§ 1341.03 TERMINATION OF NON-CONFORMING USES.
(a) Abandonment. The discontinuance of a non-conforming use for a period of six months or the change of use to a more restrictive or conforming use for any period of time shall be considered an abandonment thereof, and such non-conforming use shall not thereafter be revived.
(b) Partial destruction. Any non-conforming building or structure, which as a result of fire, explosion or other casualty, has two-thirds or more of its fair sale value destroyed, including its foundation, immediately prior to such damage, the use of such building or structure, as a non-conforming use, shall thereafter be terminated and any new construction shall be in accordance with the provisions of this Zoning Ordinance.
(c) Amortization and fencing.
(1) Non-conforming signs shall be discontinued and removed or changed to a use permitted in the respective district not later than two years after the adoption of this Zoning Ordinance.
(2) Every junk yard existing as a non-conforming use shall, within two years after becoming non-conforming, be completely enclosed with a continuous solid fence or evergreen hedge found on determination of the Zoning Inspector to be of such height and character as to screen all of the operations from public view. Such fence or hedge shall be adequately maintained and in full conformity with any conditions attached to such approval.
(Ord. passed 2-14-1978)
§ 1345.01 ENFORCEMENT OFFICER.
It shall be the duty of the person designated as the Zoning Inspector, with the aid of the Police Department, to enforce this Zoning Ordinance in accordance with the administrative provisions of the Building Code, if any, and this Zoning Ordinance.
(Ord. passed 2-14-1978)
§ 1345.02 PLANS.
Every application for a building permit or certificate of occupancy shall be accompanied by plans in duplicate, based on a survey and drawn to scale in ink or blueprint, showing the actual shape and dimensions of the lot to be built upon, the exact location, size and height of the building or structure to be erected or altered, the existing and intended use of each building or part, the proposed number of families or housekeeping units, and such other information with regard to the lot and neighboring lots as may be necessary for the enforcement of this Zoning Ordinance. One copy of such plans shall be returned to the applicant when approved by the Zoning Inspector together with such permit or certificate as may be granted.
(Ord. passed 2-14-1978)
§ 1345.03 CERTIFICATE OF OCCUPANCY.
Before using any building or premises or part thereof hereafter created, erected, changed, converted or enlarged in use or structure, a certificate of occupancy shall be obtained from the Zoning Inspector. Such certificate shall show that such building or premises, or part thereof, and the proposed use thereof conform with the provisions of this Zoning Ordinance.
(Ord. passed 2-14-1978)
§ 1345.04 VIOLATIONS.
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with any of the provisions of this Zoning Ordinance shall, upon conviction, be fined not less than $25, nor more than $500, for each offense. Each day that a violation continues shall constitute a separate offense.
(Ord. passed 2-14-1978; Ord. passed 7-23-1991)
§ 1345.05 LEGAL ACTIONS.
In case any building or structure is erected, constructed, reconstructed, altered or converted, or any building, structure or premises is used in violation of the provisions of this Zoning Ordinance, the Town Attorney is hereby authorized to institute an action to enjoin, or any other appropriate action or proceeding to prevent such erection, construction, reconstruction, alteration, conversion or use.
(Ord. passed 2-14-1978)
§ 1345.06 EXISTING USES SAFEGUARD.
(a) Nothing contained in this Zoning Ordinance shall prohibit the continuance of the use of any land, building or structure for the purpose for which such land, building or structure is used at the time such ordinance or ordinances take effect, but any alteration or addition to any land or any alteration, addition or replacement of or to any existing building or structure for the purpose of carrying on any use prohibited under the zoning rules and regulations applicable to the district may be prohibited; provided that, no such prohibition shall apply to alterations or additions to buildings or structures by any farm, industry or manufacturing, or to the use of land presently owned by any farm, industry or manufacturer, but not used for agricultural, industrial or manufacturing purposes, or to the use or acquisition of additional land which may be required for the protection, continuing or expansion of any agricultural, industrial or manufacturing operation or any present of future satellite agricultural, industrial or manufacturing use. If a non-conforming use has been abandoned, any future use of such land, building or structure shall be in conformity with the provisions of the ordinance regulating the use in the district in which such land, building or structure may be located; provided, however, that, abandonment of any particular agricultural, industrial or manufacturing process shall not be construed as abandonment of agricultural, industrial or manufacturing use.
(b) Nothing contained in this article shall be deemed to authorize an ordinance, rule and regulation which would prevent, outside of urban areas, the complete use and alienation of any timber and any and all minerals, including coal, oil and gas, by the owner or a licensee thereof. For the purpose of this section, URBAN AREA shall include all lands or lots within the jurisdiction of a Municipal Planning Commission, as defined in this article.
(Ord. passed 2-14-1978)
§ 1349.01 CREATION, MEMBERSHIP AND PROCEDURE.
(a) A Board of Zoning Appeals shall be appointed in accordance with the provisions of W.Va. Code § 8A-8-1. Such Board shall consist of five members.
(b) The Board shall have the power to adopt rules and regulations for its own government, not inconsistent with law or with the provisions of this or any other pertinent ordinance. Meetings shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson or, in his or her absence, the Acting Chairperson, may administer oaths and compel attendance of witnesses.
(c) Hearings of the Board shall be public; minutes shall be kept of proceedings, showing the action of the Board and the vote of each member upon each question, and records shall be made of the Board’s examinations and other official actions, all of which shall be filed immediately in the office of the Board as a public record.
(d) Three members of the Board shall act by resolution, and the concurring vote of three members shall be necessary to reverse any order requiring decision or determination of the Zoning Inspector, or to decide in favor of an applicant any matter upon which it is required to pass under the Zoning Ordinance, or to effect any variation in the requirement of the Zoning Ordinance.
(e) The Board may call on the other officials for assistance in the performance of its duties, and it shall be the duty of such officials to render such assistance to the Board as may reasonably be required.
(Ord. passed 2-14-1978)
§ 1349.02 APPLICATIONS AND APPEALS.
(a) An application to the Board, in cases in which it has original jurisdiction under the provisions of this Zoning Ordinance, may be taken by any property owner, including a tenant, or by any governmental officer, department, board or bureau. Such application shall be filed with the Zoning Inspector who shall transmit the same, together with all the plans, specifications and other papers pertaining to the application, to the Board.
(b) An appeal to the Board may be taken by any property owner, including a tenant, or by any governmental officer, department, board or bureau affected by any ruling of the Zoning Inspector. Such appeal shall be taken within a reasonable time, as prescribed by the rules of the Board, by filing with the Zoning Inspector a notice of appeal, together with all the plans and papers constituting the record upon which the action appealed from was taken.
(c) The Board shall fix a reasonable time for the hearing of an application or of an appeal. It shall give at least ten days’ notice of the time and place of such hearing by insertion in a daily newspaper of general circulation in the county, and shall also give notice delivered personally or by mail at least five days before the time fixed for such hearing to the applicant or appellant and to the Zoning Inspector, and to the respective owners of record of property adjoining or adjacent to the premises in question. Any party may appear at such hearings in person or by agent or by attorney. The Board shall decide the application or appeal within a reasonable time.
(Ord. passed 2-14-1978)
§ 1349.03 STAY OF PROCEEDINGS.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Inspector certifies to the Board 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 such case, proceedings shall not be stayed otherwise than by an order which may, on due cause shown, be granted by the Board on application, after notice to the Zoning Inspector, or by judicial proceedings.
(a) Powers of the Board. The Board shall have jurisdiction in matters and shall have the specific and general powers provided in this Zoning Ordinance.
(b) Special exceptions and interpretation of map. The Board shall have the power to hear and decide, in accordance with the provisions of this Zoning Ordinance, requests or applications for special exceptions or for interpretation of the Zoning Map or for decisions upon other special questions upon which the Board is authorized to pass.
(1) Special exceptions. In addition to permitting the special exceptions heretofore specified in this Zoning Ordinance, the Board shall have authority to permit the following:
(a) The substitution for a non-conforming use existing at the time of enactment of this Zoning Ordinance, another non-conforming use, if no structural alterations, except those required by law or ordinance are made; provided, however, that, in any residence district, and in any business district no change shall be permitted to any use prohibited in the industry district;
(b) The temporary use of a building or premises in any district for a purpose or use that does not conform to the regulations prescribed by this Zoning Ordinance; provided that, such use be of a true temporary nature and does not involve the erection of substantial buildings. Such permit shall be granted in the form of a temporary and revocable permit for not more than a 12-month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare; and
(c) The temporary use of a building or premises in undeveloped sections for a purpose that does not conform to the regulations prescribed by this Zoning Ordinance; provided that, such structure or use is of a true temporary nature, is promotive of or incidental to the development of such undeveloped sections and does not involve the erection of substantial buildings.
(2) Interpretation of map. Where the street or lot layout actually on the ground, or as recorded, differs from the street and lot lines indicated on the Zoning Map, the Board, after notice to the owners of the property and after public hearing, shall interpret the map in such a way as to carry out the intent and purposes of this Zoning Ordinance for the particular section or district in question.
(c) Administrative review and variances. The Board also shall have the power:
(1) Administrative review. To hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision, grant or refusal made by the Zoning Inspector in the enforcement of the provisions of this Zoning Ordinance; and
(2) Variances. To authorize on appeal in specific cases such variance from the terms of this Zoning Ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Zoning Ordinance will result in unnecessary hardship, and so that the spirit of this Zoning Ordinance shall be observed and substantial justice done, as follows:
(a) Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of enactment of this Zoning Ordinance, or by reason of exceptional situation or condition of such piece of property, or of the use or development of property immediately adjoining the piece of property in question, the literal enforcement of the provisions of the Zoning Ordinance would result in peculiar and exceptional practical difficulties or exceptional and undue hardship upon the owner of such property, unnecessary to carry out the spirit and purpose of the Zoning Ordinance, the Board shall have the power to authorize, upon appeal, a variance from such strict application, so as to relieve such difficulties or hardships, and so that the spirit and purpose of the Zoning Ordinance shall be observed and substantial justice done. In authorizing a variance, the Board may attach thereto such conditions regarding the location, character and other feature of the proposed building, structure or use as it may deem advisable in the interest of the furtherance of the purposes of the Zoning Ordinance.
(b) No such variance in the provisions or requirements of the Zoning Ordinance shall be authorized by the Board unless the Board finds, beyond reasonable doubt, that all of the following conditions exist:
1. There are exceptional or extraordinary circumstances or conditions applying to the property in question or to the intended use of the property that do not apply generally to other properties or class of uses in the same zoning district;
2. Such variance is necessary for the preservation and enjoyment of a substantial property right possessed by other properties in the same zoning district and in the vicinity; and
3. The authorizing of such variance will not be of substantial detriment to adjacent property and will not materially impair the purposes of the Zoning Ordinance or the public interest.
(c) No grant or variance shall be authorized unless the Board specifically finds that the condition or situation of the specific piece of property for which the variance is sought is not of so typical or recurrent a nature as to make reasonably practicable the formulation of a general regulation, under an amendment of the Zoning Ordinance, for such conditions or situations.
(d) Action of Board. In exercising its power, the Board may, in conformity with the provisions of W.Va. Code § 8A-8-9, and of the Zoning Ordinance reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made.
(Ord. passed 2-14-1978)
§ 1349.04 APPLICATION FOR APPEAL OF ACTIONS OF AUTHORITIES.
Any person aggrieved by the action or order of the Building Inspector, the Building Commission of the Zoning Board of Appeals shall have the right to appeal to the Circuit Court of Harrison County, West Virginia, for a temporary injunction restraining the Building Inspector or Building Commission pending final disposition of the cause as provided in W.Va. Code § 8A-9-1. In the event such application is made, a hearing thereon shall be had within 20 days, or as soon thereafter is possible, and the court shall enter such final order or decree as the law and justice may require. Cost of such proceeding shall be imposed at the discretion of the Court.
(Ord. passed 8-10-1999)
§ 1353.01 GENERAL PROCEDURE.
In accordance with the provisions of W.Va. Code § 8A-3-11, Council may from time to time amend or change by ordinance the number, shape or area of districts established on the Zoning Map or the regulations set forth in the Zoning Ordinance; but no such amendment or change shall become effective unless the ordinance proposing such amendment or change shall first be submitted to the Planning Commission for approval, disapproval or suggestions, and the Commission shall have been allowed a reasonable time, not less than 30 days, for consideration and report.
(Ord. passed 2-14-1978)
§ 1353.02 PUBLIC HEARING.
Before submitting its recommendations and report to Council the Planning Commission shall hold a public hearing on the proposed amendment, supplement or change. It shall give at least 15 days’ notice of the time and place of such hearing by publication in an official paper or a newspaper of general circulation in the county and by mailing notices to all property owners who, in the opinion of the Commission, may be affected by such amendment, supplement or change, and in accordance with such rules of procedure as it may establish.
(Ord. passed 2-14-1978)
§ 1353.03 NOTICE.
No amendment, supplement or change in any of the provisions of the Zoning Ordinance or in the boundaries of any of the districts established thereunder shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation in the county.
(Ord. passed 2-14-1978)
§ 1353.04 PROTEST.
In case of a protest against a proposed change in the boundaries of a district signed by the owners of 20% or more of either the area of the lots included in such proposed change, or of those immediately adjacent to the rear thereof extending 100 feet therefrom or of those directly opposite thereto extending 100 feet from the street frontage of such opposite lots, such amendment shall not become effective, except by the favorable vote of three-fourths of all of the members of Council.
(Ord. passed 2-14-1978)
§ 1353.05 NAMES OF OWNERS.
Any person desiring a change in zoning of property shall accompany the petition for such change in zoning, or the ordinance introduced for the purpose of changing such zoning, with a statement giving the names and addresses of the owners of all properties lying within the block or blocks where the proposed change is to be made within 100 feet of any part of the property proposed to be changed.
(Ord. passed 2-14-1978)
§ 1353.06 NOTIFICATION.
The failure to notify, as provided by this article, shall not invalidate an ordinance; provided, such failure was not intentional, and the omission of the name of any owner or occupant of property who may, in the opinion of the Planning Commission, be affected by such amendment, supplement or change, unless such omission is intentional, shall not invalidate any ordinance passed hereunder, it being the intention of this article to provide so far as may be for notice to the persons substantially interested in the proposed change that an ordinance is pending before the Council, to make a change in zoning.
(Ord. passed 2-14-1978)