Oak Hill City Zoning Code

The City Council shall establish a Board of Zoning Appeals to hear appeals on zoning issues. The Board shall be established in accordance with the W. Va. Code Ch. 8A, Art. 8, as amended, with all the rights and responsibilities accorded therein.

1. The Board shall consist of five members to be appointed by Council.
2. Members of the Board shall:
   1. Be residents of the City for at least three (3) years preceding the appointment;
   2. Not be a member of the Oak Hill Planning Commission; and,
   3. Not hold any other elective or appointive office in the City of Oak Hill.
3. Upon the establishment of the Board, the members shall be appointed for the following terms: one for a term of one (1) year; two (2) for a term of two (2) years; and two (2) for a term of three (3) years. The terms shall expire on the first day of January of the first, second and third year, respectively, following their appointment. Thereafter, members shall serve three-year terms. If a vacancy occurs, the City Council shall appoint a member for the unexpired term.
4. The members of the Board shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties.
   

1. The City Council may appoint up to three (3) additional members to serve as alternate members of the Board of Zoning Appeals.
2. Alternate members of the Board shall meet the eligibility criteria included in OHMC 15.08.010.
3. The term for an alternate Board member is three (3) years. The City Council may appoint alternate members on a staggered term schedule.
4. An alternate member shall serve on the Board when one of the regular members is unable to serve. The alternate member shall serve until a final determination is made in the matter to which the alternate member was initially called on to serve.
5. The Board of Zoning Appeals shall establish rules and procedures for designating an alternate member.
6. An alternate member shall have the same powers and duties of a regular Board member.
   

The Board of Zoning Appeals shall have the following powers and duties:

1. Hear, review and determine appeals from an order, requirement, decision or determination made by an administrative official or board charged with the enforcement of a zoning title or rule and regulation adopted pursuant thereto;
2. Authorize exceptions to the district rules and regulations only in the classes of cases or in particular situations, as specified in the zoning title;
3. Hear and decide conditional uses of the zoning title upon which the Board is required to act under the zoning title;
4. Authorize, upon appeal in specific cases, a variance to the zoning title;
5. Reverse, affirm or modify the order, requirement, decision or determination appealed from and have all the powers and authority of the official or board from which the appeal was taken;
6. Adopt rules and regulations concerning:
   1. The filing of appeals, including the process and forms for appeal;
   2. Applications for variances and conditional uses;
   3. The giving of notice; and,
   4. The conduct of hearings necessary to carry out the Board’s duties under the terms of the W. Va. Code Ch. 8A, Art. 8.
7. Keep minutes of its proceedings;
8. Keep an accurate and complete audio record of all the Board’s proceedings and official actions and keep the audio record in a safe manner, which audio record is accessible within twenty-four (24) hours of demand, for three (3) years;
9. Record the vote on all actions taken;
10. Take responsibility for the custody and preservation of all papers and documents of the Board. All minutes and records shall be filed in the Planning Office and shall be public records;
11. With consent from Council, hire employees necessary to carry out the duties and responsibilities of the Board: provided, that Council sets the salaries; and
12. Supervise the fiscal affairs and responsibilities of the Board.
    

1. The Board of Zoning Appeals shall meet quarterly and may meet more frequently at the written request of the chairperson or by two or more members.
2. Notice for a special meeting shall be in writing and shall include the date, time and place of the special meeting, and be sent to all members at least two (2) days before the special meeting.
3. Written notice of a special meeting is not required if the date, time and place of the special meeting were set in a regular meeting.
   

The Board of Zoning Appeals shall have a quorum to conduct a meeting. A majority of the members of the Board shall constitute a quorum. No action of a Board is official unless authorized by a majority of the members present at a regular or properly called special meeting.

At its first regular meeting each year, the Board shall elect a chairperson and vice chairperson from its membership. The vice chairperson shall have the power and authority to act as chairperson during the absence or disability of the chairperson.

1. The Board of Zoning Appeals shall authorize, upon appeal in specific cases, a variance from the requirements of this Title where such variance will not be contrary to the public interest, where the spirit and intent of this Title will be observed, and where substantial justice will be done, subject to the provisions and conditions prescribed by or made pursuant to this Title.
2. No variance shall be granted unless the Board makes written findings of fact that all the following conditions exist:
   1. Exceptional and unique conditions of topography, access, location, shape, size, drainage or other physical features of the property exist that create a hardship not generally shared by other properties in the same vicinity or zoning district;
   2. The variance is necessary for the preservation and enjoyment of a substantial property right possessed by other properties within the same vicinity or zoning district but denied to the property in question;
   3. The hardship is related to the land itself and is not personal to the applicant, financial in nature or self-created;
   4. The requested variance is the minimum relief necessary to alleviate the demonstrated hardship;
   5. The granting of the variance will not be materially detrimental to the public welfare or injurious to neighboring properties or improvements;
   6. The granting of the variance will not adversely affect public health, safety, or welfare; and
   7. The variance is consistent with the general spirit and intent of this Title and the Comprehensive Plan and will not have the effect of nullifying the purpose of either.
3. In determining whether exceptional circumstances or hardship exist, the Board may consider whether the hardship arises from unique physical characteristics of the property, including but not limited to:
   1. Topography;
   2. Access limitations;
   3. Location;
   4. Shape or configuration of the lot;
   5. Size of the lot;
   6. Drainage conditions;
   7. Existing development patterns; or
   8. Other extraordinary physical or environmental conditions peculiar to the property.
4. The Board shall have the authority to impose specific conditions as part of its approval in order to protect the public health, and for reasons of safety, comfort and convenience (e.g., to ensure compatibility with surrounding properties). A variance request may be denied or revoked where the applicant fails to comply with specific conditions made a part of the approval by the Board or fails to comply with a reasonable request of the Board for furnishing specific information related to the proposed variance. Failure to comply with the conditions of approval shall constitute a violation of this Title.
5. Variance approval applies to the subject property and shall be transferred with ownership of the subject property subject to the provisions and conditions prescribed by or made pursuant to this Title.
6. The applicant shall file a formal and complete application for a variance with the City. The application shall include a filing fee in the amount of $50.00. The Zoning Enforcement Officer will conduct a formal review of the complete application. As part of the formal review process, the Zoning Enforcement Officer will notify appropriate departments and request summaries of departmental reviews.
7. The Zoning Enforcement Officer shall publish a Class I legal advertisement describing the request for a variance in a local newspaper of general circulation at least fifteen (15) days prior to the scheduled public hearing before the Board of Zoning Appeals.
8. The Board of Zoning Appeals shall hold a public hearing to review the variance request. All adjoining property owners shall be notified of the proposed variance along with the date and time of the public hearing
   1. The Board may approve an application for a variance, subject to such reasonable conditions and restrictions as are directly related to and incidental to the proposed variance, if it finds that the standards outlined in this Title are met.
9. If the variance is granted by the Board of Zoning Appeals, the applicant receives approval and is formally notified in writing by the City.
10. If the variance is denied by the Board of Zoning Appeals, the applicant is formally notified in writing of the denial and the right to appeal the decision to the Circuit Court of Fayette County within thirty (30) days. See OHMC 15.08.090.

1. Appeal to board of zoning appeals.
   1. An appeal from any order, requirement, decision or determination made by Zoning Enforcement Officer or rule and regulation adopted pursuant to this zoning title, shall be filed with the board of zoning appeals.
   2. The appeal shall:
      1. Specify the grounds of the appeal;
      2. Be filed within thirty days of the original order, requirement, decision or determination made by the Zoning Enforcement Officer; and
      3. Be on a form prescribed by the board.
   3. Upon request of the Board of Zoning Appeals, the Zoning Enforcement Officer shall transmit all documents, plans and papers constituting the record of the action from which the appeal was taken.
2. Notice and hearing of appeal.
   1. Within ten days of receipt of the appeal by the Board of Zoning Appeals, the Board shall set a time for the hearing of the appeal and give notice. The hearing on the appeal must be held within forty-five days of receipt of the appeal by the Board.
   2. At least fifteen days prior to the date set for the hearing on the appeal, the Board of Zoning Appeals shall publish a notice of the date, time and place of the hearing on the appeal as a Class I legal advertisement in compliance with the provisions of W. Va. Code chapter fifty-nine, article three and written notice shall be given to the interested parties. The publication area shall be the area covered in the appeal.
   3. The Board of Zoning Appeals may require the party taking the appeal to pay for the cost of public notice and written notice to interested parties.
   4. At the hearing, any party may appear in person, by agent or by an attorney licensed to practice in this state.
   5. Every decision by the Board must be in writing and state findings of fact and conclusions of law on which the board based its decision. If the Board fails to provide findings of fact and conclusions of law adequate for decision by the Circuit Court of Fayette County and as a result of the failure, the Circuit Court returns an appealed matter to the board and dismisses jurisdiction over an applicant's appeal without deciding the matter, whether the Court returns the matter with or without restrictions, the Board shall pay any additional costs for court filing fees, service of process and reasonable attorneys' fees required to permit the person appealing the board's decision to return the matter to the circuit court for completion of the appeal.
   6. The written decision by the board shall be rendered within thirty days after the hearing. If the board fails to render a written decision within thirty days after the hearing, then any party may pursue additional legal remedies to obtain a decision, including, but not limited to, seeking a writ of mandamus.
      

1. When an appeal has been filed with the Board of Zoning Appeals, all proceedings and work on the premises in question shall be stayed, except as provided in Part B of this section.
2. A stay may not be had:
   1. If the Zoning Enforcement Officer certifies in writing to the Board of Zoning Appeals that a stay would cause imminent peril to life or property;
   2. Upon further administrative proceedings, including, but not limited to, submissions to and reviews by Zoning Enforcement Officer; or
   3. Upon engineering or architectural work that does not disturb the real estate beyond what is necessary to complete engineering, survey work or other tests.
3. If the written certification is filed pursuant to Part B of this section, then proceedings or work on the premises shall not be stayed.
4. Nothing in this section prevents a party from obtaining a restraining order.

1. Every decision or order of the Board of Zoning Appeals is subject to review by certiorari.
2. Within thirty (30) days after a decision or order by the Board, any aggrieved person may present to the Circuit Court of Fayette County a duly verified petition for a writ of certiorari setting forth:
   1. That the decision or order by the Board of Zoning Appeals is illegal in whole or in part; and
   2. The specific grounds of the alleged illegality.
      

1. Upon filing a petition for a writ of certiorari with the Clerk of the Circuit Court of Fayette County in which the affected premises are located, the petitioner shall cause a notice to be issued and served by the sheriff of the county upon:
   1. The adverse party, as shown by the record of the appeal in the office of the Board of Zoning Appeals; and
   2. The chairperson or secretary of the Board of Zoning Appeals, as applicable.
2. The adverse party is any property owner appearing at the hearing before the Board of Zoning Appeals in opposition to the petitioner.
3. If the record shows a written document containing the names of more than three property owners opposing the request of the petitioner, then the petitioner is required to cause notice to be issued and served upon the three property owners whose names first appear upon the written document. Notice to the other parties named in the written document is not required.
4. The notice shall:
   1. State that a petition for a writ of certiorari has been filed in the Circuit Court of the County asking for a review of the decision or order of the Board of Zoning Appeals;
   2. Designate the affected premises; and
   3. Specify the date of the decision or order that is the subject of the petition for a writ of certiorari.
5. Service of the notice by the sheriff to the chairperson or secretary of the Board of Zoning Appeals shall constitute notice to the Board. Service of the notice by the sheriff to the City Council and to the Zoning Enforcement Officer shall also constitute such a notice. No further summons or notice with reference to the filing of such petition shall be necessary.
6. As an alternative to the requirements for notice prescribed in the preceding Parts of this section, notice is sufficient upon a showing that the chairperson or secretary of the Board of Zoning Appeals and all adjacent landowners to the affected premises have received personal service of process of the notice containing information as required in Part D of this section. As to all other interested parties, notice shall be sufficient if notice containing information as required in Part D of this section, is published as a Class III-0 legal advertisement, in the county or counties wherein the affected premises are located.

1. Within twenty days after a petition for a writ of certiorari is presented, the Board of Zoning Appeals must show the Circuit Court of Fayette County cause why a writ of certiorari should not be issued.
2. If the Board of Zoning Appeals fails to show the Court that a writ should not be issued, then the Court may allow a writ of certiorari directed to the Board of Zoning Appeals.
3. The writ shall prescribe the time in which a return shall be made to it. This time shall be not less than ten days from the date of issuance of the writ and may be extended by the Court.

1. The allowance of the writ of certiorari shall not stay proceedings or work on the premises affected by the decision or order to be brought up for review.
2. The Court may, upon application and on notice to all parties to the decision or order and on due cause shown, grant such relief as the circumstances of the case may require, including an order staying the proceedings or work until final determination of the case by the Court.
3. The staying order may be issued by the Court without requiring the petitioner to enter into a written undertaking with the adverse party or parties affected thereby for the payment of damages by reason of such staying order.

1. The return to the writ of certiorari by the Board of Zoning Appeals must concisely set forth the pertinent facts and data and present material to show the grounds of the decision or order appealed. The return must be verified by the secretary of the Board of Zoning Appeals.
2. The Board of Zoning Appeals does not have to return the original papers acted upon by it. It shall be sufficient to return certified copies of all or such portion of the papers as may be called for by the writ.
   

1. The Court may consider and determine the sufficiency of the allegations of illegality contained in the petition without further pleadings and may make a determination and render a judgment with reference to the legality of the decision or order of the Board of Zoning Appeals on the facts set out in the petition and return to the writ of certiorari.
2. If it appears to the Court that testimony is necessary for the proper disposition of the matter, the Court may take evidence to supplement the evidence and facts disclosed by the petition and return to the writ of certiorari, but no such review shall be by trial de novo.
3. In passing upon the legality of the decision or order of the Board of Zoning Appeals, the Court may reverse, affirm or modify, in whole or in part, the decision or order.
   

An appeal may be taken to the West Virginia Supreme Court of Appeals from the final judgment of the Circuit Court reversing, affirming, or modifying the decision or order of the Board of Zoning Appeals within the same time, in the same manner, and upon the same terms, conditions and limitations as appeals in other civil cases.