(A)

Establishment.

(1)

The position of Zoning Administrator has been established by City Council in accordance with Code of Virginia § 15.2-2286.

(2)

The Zoning Administrator shall designate in writing agents for the administration and enforcement of the Zoning Ordinance.

(B)

Power and Duties. The Zoning Administrator shall have all necessary authority on behalf of City Council to administer and enforce this Ordinance, including the following general powers and duties:

(1)

To review and approve, approve with conditions, or deny applications for:

(a)

Zoning Permits; and

(b)

Temporary Use Permits.

(2)

To make interpretations of matters within the scope of this Ordinance.

(3)

To process and review BZA applications.

(4)

To enforce the provisions of this Ordinance.

(5)

To maintain the Zoning Map and other such records and official materials as relate to the adoption, amendment, or administration of this Ordinance.

(6)

To determine vested rights.

(7)

To take such other actions to administer and enforce this Ordinance as are authorized elsewhere in this Ordinance or are expressly permitted by or fairly implied from the scope of authority of Zoning Administrators under the Code of Virginia, including without limitation Code of Virginia § 15.2-2286.

(A)

Establishment. City Council was established by the City Charter.

(B)

Powers and Duties. The City Council shall have the following powers and duties under this Ordinance:

(1)

To hear and decide applications for amendment of the Zoning Map or zoning text.

(2)

To hear and decide development applications for Use Permits.

(3)

To hear and decide on appeals of the Downtown Design Committee and the Historic Preservation Commission.

(4)

To hear and decide applications to amend existing proffers.

(5)

To hear and decide appeals of interpretations of proffered conditions by the Zoning Administrator.

(6)

To take such other actions with regard to this Ordinance as are authorized elsewhere in this Ordinance or are expressly permitted by or fairly implied from the scope of authority of local governing bodies with respect to zoning under the Code of Virginia.

(A)

Establishment. The Planning Commission was established under Ch. 2, Article X of the City Code and Code of Virginia § 15.2-2210.

(B)

Powers and Duties. The Planning Commission serves primarily in an advisory capacity and has no legislative authority except where expressly granted in the Code of Virginia. The Planning Commission shall have the following powers and duties under this Ordinance:

(1)

To hear and make recommendations to City Council on:

(a)

Amendments to the Zoning Map or zoning text; and

(b)

Use Permits.

(2)

To take such other actions with regard to this Ordinance as are authorized elsewhere in this Ordinance or the City Code or are expressly permitted by or fairly implied from the scope of authority of planning commissions under the Code of Virginia.

(A)

Establishment. The Board of Zoning Appeals (BZA) is established pursuant to Code of Virginia § 15.2-2308.

(B)

Powers and Duties. The BZA shall have the following powers and duties under this Ordinance:

(1)

To hear and decide applications for a Variance.

(2)

To hear and decide applications for a Special Exception.

(3)

To hear and decide applications for a Variance to Ch. 14.1 Flood Protection of the City Code.

(4)

To hear and decide applications for a Variance to allow for a deviation from the provisions of this Ordinance regulating the shape, size, or area of a lot of land or the size, height, area, bulk, or location of a building or structure prior to pursuing a CBPA exception (Ch. 9—Chesapeake Bay Preservation Area Overlay District 9 VAC 10-20-150 C 2 a).

(5)

To hear and decide appeals taken from any interpretation or final decision made by the Zoning Administrator under this Ordinance other than interpretations of proffered conditions.

(6)

To hear and decide applications for interpretations of the Zoning Map where there is uncertainty as to the location of a district boundary.

(7)

To take such other actions with regard to this Ordinance as are authorized elsewhere in this Ordinance or are expressly permitted or fairly implied from the scope of authority of boards of zoning appeals under the Code of Virginia.

(C)

Membership, Meetings, Conduct.

(1)

Membership.

(a)

The BZA shall consist of seven regular members and may include one, but not more than three alternate members.

(b)

The regular members and alternate members shall be appointed by the City Council and serve without compensation.

(c)

Each member shall be a resident of the City of Portsmouth.

(d)

Alternate members shall be required to attend all regular meetings and training of the BZA, but shall not participate in the voting or decisions of the BZA unless asked by the chairperson to fill a position when a regular member is absent or unavailable to vote on a matter.

(e)

When seated, alternate members shall have the same powers and duties as the member they replace.

(f)

The Zoning Administrator shall serve as a non-voting member and Secretary of the BZA.

(2)

Meetings.

(a)

BZA meetings shall be held at the call of the chairperson and at such other times as the BZA may determine.

(b)

Four members of the BZA shall constitute a quorum.

(c)

Alternate members may be seated as necessary to establish a quorum.

(d)

No official business of the board shall be conducted without a quorum present.

(A)

Establishment. The Historic Preservation Commission (HPC) and Downtown Design Committee (DDC) are established as historic review boards under Code of Virginia § 15.2-2306.

(B)

Powers and Duties. HPC and DDC shall each have the following powers and duties under this Ordinance:

(1)

To review and decide on applications for Certificates of Appropriateness in the Historic District(s) in which it has jurisdiction.

(2)

To advise on the creation of new Historic Districts.

(3)

To adopt, and amend from time to time, standards and guidelines for implementing the standards established by City Council for the issuance of Certificates of Appropriateness in the Historic District(s) under its jurisdiction.

(C)

Membership, Meetings, Conduct.

(1)

Each of HPC and DDC shall consist of seven members, and may include one, but not more than three alternate members, appointed by the City Council, who serve without compensation for terms of three years.

(2)

Members may be reappointed for a maximum of two consecutive terms.

(3)

All members shall be residents of the City of Portsmouth.

(4)

Alternate members shall be required to attend all regular meetings and training of the HPC and DDC, but shall not participate in the voting or decisions of the HPC and DDC unless asked by the chairperson to fill a position when a regular member is absent or unavailable to vote on a matter.

(5)

When seated, alternate members shall have the same powers and duties as the member they replace.

(6)

All members must demonstrate an interest, competence, or knowledge in historic preservation.

(7)

Each of HPC and DDC should include at least one member who is an architect or architectural historian, at least two members with professional training or equivalent experience in architecture, history, architectural history, archaeology, or planning, and the HPC should include at least one member residing in each Historic District within the HPC's jurisdiction. However, the failure of the membership of HPC or DDC to meet those qualifications shall not render void or otherwise invalidate any action taken by HPC or DDC, as applicable.

(8)

Any member may be removed from office by City Council for inefficiency, neglect of duty, malfeasance, or continued absence from regular or called meetings of the Board. Continued absence shall mean absence from three consecutive meetings or a total of four meetings in a 12 month period.

(A)

Applications for Permits or Approvals.

(1)

Applications for permits or approvals under this Ordinance may be submitted and prosecuted by the owner of the land on which the development is proposed, or any other individual or entity with the signed written consent of owner.

(2)

Applications for Zoning Map or text amendments may also be initiated by the City Council or Planning Commission in accordance with Code of Virginia § 15.2-2286.

(3)

Required submittals for applications shall be established as follows:

(a)

By the Zoning Administrator for Zoning Permits, Temporary Use Permits and Variances.

(b)

By the City Engineer for Site Plan approval.

(c)

By the Planning Director for all other applications.

(d)

Without limitation, required submittals may include the following in accordance with Code of Virginia § 15.2-2286: Phase I environmental site assessments; Phase II environmental site assessments; disclosure and plans for disclosure of adverse environmental conditions of the subject property; and plans for remediation of adverse environmental conditions of the subject property.

(4)

City Council shall establish all application fees. All fees under this Ordinance shall be collected in accordance with the most recent fee schedule adopted by City Council set forth in Appendix A of the City Code.

(5)

All applications must be complete, including all required submittals and payment of all fees and costs, prior to processing.

(6)

Unless otherwise authorized by the City Treasurer, no application shall be processed unless the applicant produces satisfactory evidence that any delinquent or outstanding real estate taxes, nuisance charges, stormwater management utility fees, or other charges that constitute a lien on the subject property have been paid.

(7)

No application, permit or approval shall be considered on property where there is a known outstanding violation of this Ordinance, unless the application, permit, and/or approval would remedy the violation.

(B)

Applications for Appeals to City Bodies.

(1)

Applications for appeals to city bodies under this Ordinance may be submitted by any individual or entity with standing under the Code of Virginia or other applicable State law to appeal.

(2)

City Council shall establish all application fees.

(A)

Public Notice.

(1)

Public notice shall be provided for all applications and appeals requiring public notice under the Code of Virginia, including without limitation § 15.2-2204, § 15.2-2286, and § 15.2-2309.

(2)

The manner and form of notice shall be as required or permitted by the Code of Virginia.

(3)

In accordance with Code of Virginia §15.2-2204(B), where written notice regarding a proposed change to the Zoning Map classification of a parcel or parcels of land is required to be provided to a condominium or cooperative, the written notice may be mailed to the unit owners' association or proprietary lessees' association, respectively, in lieu of each individual unit owner.

(4)

Supplemental means of providing notice beyond what is legally required may be undertaken at the discretion of the City.

(B)

Public Hearings.

(1)

Public hearings shall be held for all applications requiring a public hearing under the Code of Virginia.

(2)

The manner and form of notice of public hearings shall be as required or permitted by the Code of Virginia.

(C)

Cost of Additional Notice. If an additional public advertisement is required because of an applicant's request for deferral or other action or inaction of applicant, then the applicant shall pay the costs of the additional public advertisement.

(A)

Appeal of City Council Decisions Under This Ordinance.

(1)

Appeal of City Council shall be to the Circuit Court.

(2)

This Ordinance is not intended to and does not grant or establish any right or standing to appeal broader than what is granted by the Code of Virginia or under applicable Virginia jurisprudence.

(3)

Only the applicant shall have the right to appeal the denial in whole or in part by City Council of appeals from HPC or DDC.

(4)

Any action, described below, contesting a decision of the City Council must be filed with the Circuit Court within 30 days of the decision.

(a)

Adopting or failing to adopt a proposed zoning ordinance or amendment thereto;

(b)

Granting or failing to grant a Use Permit;

(c)

Denying an appeal from HPC or DDC in whole or in part under this Ordinance; or

(d)

Taking or failing to take any other action under this Ordinance.

(5)

If an appeal complying with the requirements of the Code of Virginia and applicable Virginia jurisprudence is not timely filed, the decision of City Council shall be final and unappealable.

(B)

Appeal of Zoning Administrator Decisions Under This Ordinance

(1)

Appeal of the Zoning Administrator shall be to the BZA.

(2)

Any appeal of a written determination made by the Zoning Administrator (including decisions, interpretations, orders, requirements, notices of violation and any other determinations) under this Ordinance must be filed and perfected within 30 days of the registered mailing or posting of the written decision in accordance with the Code of Virginia § 15.2-2311.

(3)

To perfect an appeal of a written determination made by the Zoning Administrator, the appellant must timely file with the Zoning Administrator and the BZA:

(a)

A written notice of appeal specifying the grounds of appeal; and

(b)

The appeal filing fee.

(4)

If an appeal of a written determination of the Zoning Administrator is not timely filed and perfected, the determination of the Zoning Administrator shall be final and unappealable.

(5)

The BZA shall hear timely filed and perfected appeals within 90 days.

(6)

The determination of the Zoning Administrator shall be presumed to be correct.

(7)

At the hearing, the appellant has the burden of proof to rebut the presumption of correctness by a preponderance of the evidence.

(8)

The BZA may reverse or affirm, wholly or partly, or may modify, the determination made by the Zoning Administrator.

(C)

Appeal of BZA Decisions Under This Ordinance.

(1)

Appeal of the BZA shall be to the Circuit Court.

(2)

Any action contesting a final decision of the BZA under this Ordinance must be filed with the Circuit Court within 30 days of the decision.

(3)

If an appeal complying with the requirements of the Code of Virginia and applicable Virginia jurisprudence is not timely filed, the decision of the BZA shall be final and unappealable.

(D)

Appeal of HPC or DDC Decisions Under This Ordinance.

(1)

Appeal of HPC and DDC shall be to City Council.

(2)

Any appeal of a decision of HPC or DDC under this Ordinance must be filed and perfected within 30 days of the decision.

(3)

To perfect an appeal of a decision of HPC or DDC, the appellant must timely file with the Planning Department:

(a)

A written notice of appeal specifying the grounds of appeal; and

(b)

The appeal filing fee.

(4)

If an appeal of a decision of HPC or DDC is not timely filed and perfected, the determination of HPC or DDC shall be final and unappealable.

(5)

Perfected appeals shall be reviewed by a committee consisting of a representative designated by the Planning Director, a representative designated by the Building Official, and a representative designated by the City Attorney. The committee may either:

(a)

Remand the appeal to HPC or DDC for reconsideration; or

(b)

Forward the appeal to City Council for action.

(6)

The committee shall not remand the appeal more than once, and if the appellant still desires to prosecute the appeal after the reconsideration then applicant may submit a written statement of its intent to the Planning Department and no additional fees or filings shall be required.

(7)

The standard of review for City Council consideration of HPC or DDC appeals shall be de novo.

(8)

City Council may grant the appeal in full, deny the appeal in full, or grant the appeal in part and deny the appeal in part.

(E)

Appeal of Other Administrative Decisions Under This Ordinance. Appeal of administrative decisions under this Ordinance made by individuals or bodies other than City Council, the Zoning Administrator, BZA, HPC or DDC shall be identical in all respects to appeal of determinations of the Zoning Administrator.

(A)

Purpose and Intent. The purpose of this section is to establish a procedure for the review of proposed development to ensure its compliance with the requirements of this Ordinance.

(B)

Applicability. A Zoning Permit must be obtained from the Zoning Administrator prior to:

(1)

Establishing, expanding, altering or otherwise changing the use of a property

(2)

Installing signs that are subject to the standards in Sec. 40.2-307 Signage;

(3)

Development in a historic district that requires a COA;

(4)

All structural improvements, regardless of size or association with a building permit; and

(5)

Obtaining a Business License from the Commissioner of Revenue.

(C)

Review Standards. A Zoning Permit shall be approved upon a finding the proposed development complies with all applicable standards in this Ordinance and all applicable conditions of relevant permits and development approvals.

(D)

Review and Action. Upon receipt of a complete application, the Zoning Administrator shall review the application and issue one of the following determinations:

(1)

Approval of the application;

(2)

Approval of the application with conditions; or

(3)

Denial of the application.

(A)

Purpose and Intent. The purpose of this section is to establish a procedure for the review of temporary uses.

(B)

Applicability. The provisions of this section shall apply to all proposed temporary uses as set forth in Sec. 40.2-217(J) Temporary Use-Standards.

(C)

Review Standards. An application for a Temporary Use Permit shall be approved upon a finding the applicant demonstrates the proposed temporary use complies with the relevant standards in Sec. 40.2-217(J) Temporary Use-Standards.

(D)

Review and Action. Upon receipt of an official complete application, the Zoning Administrator shall review the application and issue one of the following determinations:

(1)

Approval of the application;

(2)

Approval of the application with conditions; or

(3)

Denial of the application.

(E)

Expiration. A Temporary Use Permit shall be effective beginning on the date specified in the permit approval, and shall remain effective for the period indicated on the permit.

(F)

Amendment. A Temporary Use Permit may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval.

(A)

Purpose and Intent. The purpose and intent of this section is to provide procedures and standards for amending the Zoning Map or text of this Ordinance.

(B)

Authority. The City Council may approve or deny amendments to the Zoning Map or text of this Ordinance in accordance with the procedures and standards outlined within this section.

(C)

Initiation. Pursuant to Code of Virginia § 15.2-2285, a Zoning Text or Zoning Map Amendment may be initiated as follows:

(1)

By the City Council.

(2)

By the Planning Commission.

(3)

By an owner, a contract purchaser with the owner's consent or the owner's authorized agent.

(D)

Applicability. The provisions of this section apply to:

(1)

Requested amendment to the text of this Ordinance;

(2)

Requested amendment to the Zoning Map; or

(3)

Requested amendment to the Zoning Map with Proffers (Conditional Zoning).

(E)

Provisions for Conditional Zoning.

(1)

As part of the application, any applicant for an amendment to the Zoning Map may voluntarily proffer reasonable conditions, which shall apply to the subject property.

(2)

No applicant is required to make any proffer.

(3)

All proffers must be made in a written statement signed by the owner of the subject property and including language substantially similar to "I hereby proffer that the development of the subject property of this application shall be in strict accordance with the conditions set forth in this submission."

(4)

Any proffers must be made prior to the commencement of any public hearing before City Council on the subject application.

(5)

However, City Council may accept amended proffers once the hearing has begun if the amended proffers do not materially affect the overall proposal.

(6)

All conditions included in proffers must comply with all applicable limitations in the Code of Virginia, including without limitation:

(a)

The rezoning itself must give rise to the need for the condition;

(b)

The condition must have a reasonable relation to the rezoning;

(c)

The condition must not include a cash contribution to the City;

(d)

The condition must not include mandatory dedication of real or personal property for open space, parks, schools, fire departments or other public facilities not otherwise provided for in Code of Virginia § 15.2-2241;

(e)

The conditions must not require the mandatory creation of a property owner's association;

(f)

The conditions must not include payment for, or construction of, off-site improvements except those provided for in Code of Virginia § 15.2-2241;

(g)

The condition must be related to the physical development or physical operation of the property; and

(h)

The condition must be in accordance with the Comprehensive Plan.

(7)

Proffers are strictly voluntary.

(8)

By engaging directly or through their agents in any discussion or other communication with City staff regarding potential proffers, applicants and owners acknowledge and agree that any comments or suggestions made by City staff are non-binding on applicant and owner and do not reflect an action of City Council or impose an obligation to proffer any condition.

(9)

The Planning Department shall review all proffered conditions and, in consultation with the City Attorney's Office, may reject any condition that could violate the Code of Virginia prior to consideration of the application by Planning Commission or City Council.

(10)

The failure of the Planning Department to reject a condition does not constitute a representation or warranty to applicant or owner that the condition complies with the Code of Virginia.

(11)

City Council shall not be obligated to accept any proffered condition.

(12)

Upon approval of any conditional rezoning, all conditions proffered and accepted by City Council shall be binding on the subject property and shall remain in force and effect until amended by City Council.

(13)

All such conditions shall be in addition to the regulations provided for in the zoning district to which the land is rezoned.

(14)

Applications to amend proffers may be processed in the same manner as a Zoning Map Amendment application or may be heard directly by City Council in accordance with Code of Virginia § 15.2-2202(A).

(F)

Review Standards for Zoning Text, Zoning Map, and Conditional Zoning Amendments.

(1)

Whether to amend the text of this Ordinance or the Zoning Map is a matter committed to the legislative discretion of the City Council and is not controlled by any one factor.

(2)

In determining whether to adopt or disapprove the proposed amendment, the City Council may consider any factor it deems applicable and consistent with the Code of Virginia, including, but not limited to, the City's comprehensive plan, and the public health, safety, and general welfare.

(G)

Review and Action.

(1)

After an application is complete, the Planning Commission shall hold a public hearing and make a recommendation to City Council whether to approve or deny the application.

(2)

After the Planning Commission has made a recommendation, City Council shall hold a public hearing on the application and approve or deny the application.

(3)

If City Council approves an application on first reading, then no additional reading shall be required and the application shall be deemed finally approved. If City Council denies an application on first reading, then at the discretion of City Council there may be a second reading of the application at a subsequent meeting of the City Council. If the application is approved on a second reading, then the application shall be deemed finally approved. If the application is denied on a second reading, or if City Council declines to hold a second reading, then the application shall be deemed finally denied.

(4)

On its own initiative or at the request of the applicant, Planning Commission or City Council may also defer consideration of an application to a future meeting.

(H)

Effect of Zoning Amendment on Existing Proffer.

(1)

When a Zoning Map Amendment that is not part of a comprehensive implementation of a new or substantially revised zoning ordinance changes the zoning of property that is subject to existing proffers, the existing proffers shall become void and of no further force or effect.

(2)

Existing proffers may also be amended outside of context of map amendments by direct application to City Council as provided in subsection 40.2-532(E)(9).

(Ord. No. 2021-47, § 1(Exh. A), 6-22-2021; Ord. No. 2023-18, § 1, 3-14-2023)

(A)

Purpose and Intent. The general purpose of a Use Permit is to authorize the City Council to exercise legislative discretion in reviewing applications for uses that may be appropriate in a zoning district but because of their nature, extent, and external effects, require special consideration of their location, design, and methods of operation before they can be deemed appropriate in the district and compatible with their surroundings.

(B)

Authority. The City Council may grant, grant with conditions, or deny Use Permits in accordance with the procedures and standards outlined in this section.

(C)

Applicability.

(1)

A Use Permit is required for development of any use designated in Sec. 40.2-216 Table 40.2-216, as requiring a Use Permit.

(2)

A Use Permit is required for installing a new off-premises sign or a new outdoor advertising sign, replacing an off-premises sign or an outdoor advertising sign, modifying an off-premises sign or an outdoor advertising sign (including a conversion to an LED electronic display or an automatic changeable copy display), or modifying a nonconforming off-premises sign or a nonconforming outdoor advertising sign (including a conversion to an LED electronic display or an automatic changeable copy display), all as provided in Sec. 40.2-307(H)(2).

(3)

Any legally established use that existed prior to the adoption of this Ordinance, or any subsequent amendments, shall not be considered a nonconforming use where a Use Permit is now required for establishment of such use. The use shall be allowed to continue operation, as well as reconstruct or structurally alter the building or structure without the necessity of obtaining a Use Permit. However, approval of a Use Permit shall be required when either of the conditions below are present, as determined by the Zoning Administrator.

(a)

There is a 20 percent or greater net increase in the square footage of the use or structure proposed for expansion or enlargement; or

(b)

The expansion or enlargement will substantially alter the site design and layout as it relates to circulation, parking, or other site characteristics so as to adversely affect surrounding properties.

(D)

Conditions of Approval.

(1)

In approving a Use Permit, the City Council may impose any conditions regarding the location, character, and other features of the proposed Use Permit as may be deemed necessary in City Council's legislative discretion to ensure compliance with the general intent and purposes of this Ordinance and to prevent or minimize adverse effects from the use.

(2)

Conditions shall be included as part of the approval.

(E)

Waiver or Modification of Use-Specific Standards. In approving a Use Permit, City Council may waive or modify use-specific standards set forth in Sec. 40.2-217 Use-Specific Standards applicable to the use as and to the extent deemed necessary in City Council's legislative discretion to ensure compliance with the general intent and purposes of this Ordinance, permit the development and operation of the use in accordance with good zoning and land use practice, or minimize adverse effects from the proposed use approved.

(F)

Review Standards.

(1)

Whether to approve or deny a Use Permit is a matter committed to the legislative discretion of the City Council and is not controlled by any one factor.

(2)

In determining whether to adopt or disapprove the proposed Use Permit, the City Council may consider any factor it deems applicable and consistent with the Code of Virginia, including, but not limited to, the nature, extent, external effects, location, design, or method of operation of the use, the City's comprehensive plan, and the public health, safety, and general welfare of the residents.

(G)

Review and Action.

(1)

After an application is complete, the Planning Commission shall hold a public hearing and make a recommendation to City Council whether to approve or deny the application.

(2)

After the Planning Commission has made a recommendation, City Council shall hold a public hearing on the application and approve, approve with conditions, or deny the application.

(3)

If City Council approves an application on first reading, then no additional reading shall be required and the application shall be deemed finally approved. If City Council denies an application on first reading, then at the discretion of City Council there may be a second reading of the application at a subsequent meeting of the City Council. If the application is approved on a second reading, then the application shall be deemed finally approved. If the application is denied on a second reading, or if City Council declines to hold a second reading, then the application shall be deemed finally denied.

(4)

On their own initiative or at the request of the applicant, Planning Commission and City Council may also defer consideration of an application to a future meeting.

(H)

Effect of Approval. A Use Permit authorizes only the particular use and associated development that are approved.

(I)

Reserved.

(J)

Runs with the Land.

(1)

A Use Permit, including any approved plans and conditions, runs with the subject property and is not personal to an applicant.

(2)

Change of ownership of the property does not alter or extend time periods or conditions of Use Permits.

(K)

Expiration and Extension.

(1)

Except as provided for in subsection (2) and (3) below, a Use Permit shall automatically expire and become void two years from the date of approval by City Council if the use is inactive or changed to a different use, unless within such two-year period:

(a)

A building permit is obtained and erection or alteration of a structure is started; or

(b)

A Certificate of Occupancy is obtained and the approved use is commenced.

(c)

For the purposes of this section, the starting of erection of a structure shall mean the completion of all foundation work, and the starting of alteration of a structure shall mean the completion of all demolition work required prior to construction of alteration improvements.

(d)

An extension is granted by the Virgina General Assembly.

(2)

City Council shall have the authority to specify a shorter or longer time period for the automatic expiration of a Use Permit under this section. Such shorter period shall be specified at the time that the Use Permit is granted.

(3)

The two year time period for commencement of the use after City Council approval of a Use Permit may be extended by City Council once for a period of not to exceed one year from the original expiration date provided that a written application for the extension is submitted to the Planning Department at least 30 days prior to the expiration of the Use Permit. If an application for an extension is timely submitted, the Use Permit shall be deemed extended until City Council has voted to approve or deny the request for extension.

(L)

Revocation. A Use Permit may be revoked by City Council after conducting a public hearing. The permit shall be revoked only if Council finds:

(1)

The Use Permit was obtained or extended by fraud or deception;

(2)

The applicant has failed to comply with one or more of the conditions of approval;

(3)

There is a change in conditions affecting the public health, safety, and welfare, since adoption of the Use Permit; or

(4)

There are repeated violations of this Ordinance by the holder of the Use Permit, related to the development approved by the Use Permit.

(M)

Amendment. Except for revocation, a Use Permit may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval.

(Ord. No. 2021-46, § 1(Exh. A), 6-22-2021; Ord. No. 2021-47, § 1(Exh. A), 6-22-2021; Ord. No. 2023-18, § 2, 3-14-2023; Ord. No. 2023-43, § 33, 5-23-2023)

(A)

Purpose and Intent. The BZA shall review applications for Variances in accordance with the procedures and standards of this section.

(B)

Applicability.

(1)

Applications for a Variance may be made by any property owner, tenant, government official, department, or board to the Board of Zoning Appeals.

(2)

A Variance may be applied for to allow for a deviation from the provisions of this Ordinance regulating the shape, size, or area of a lot of land or the size, height, area, bulk, or location of a building or structure.

(3)

A Variance may not be applied for to authorize a use.

(4)

A Variance may be applied for to authorize the approval of adjusting lot lines to make a parcel less nonconforming in accordance with Article IV Nonconformities.

(5)

A Variance may be applied for to allow for a deviation from the provisions of this Ordinance regulating the shape, size, or area of a lot of land or the size, height, area, bulk, or location of a building or structure prior to pursuing a CBPA exception (City Code Ch. 9.1—Chesapeake Bay Preservation Area Overlay District 9 VAC 10-20-150 C 2 a) in accordance with the Virginia Department of Conservation and Recreation Guidance on the Chesapeake Bay Preservation Area—Exceptions that states that "other forms of regulatory relief should be considered before an exception is pursued."

(6)

Variances may be applied for to allow for a deviation from the provisions of City Code Ch. 14.1 Flood Protection (City Code Sec. 14.1-13.-Variances; factors to be considered.).

(C)

Conditions of Approval.

(1)

In authorizing a Variance, the BZA may impose such conditions regarding the location, character, duration, and other features of the property or proposed structure as it may deem necessary in the public interest to ensure compliance with the requirements of this section and to prevent or minimize adverse effects from the proposed Variance.

(2)

Conditions, where imposed, shall be included as part of the approval.

(D)

Review Standards. A Variance shall be granted if the applicant demonstrates that the strict application of the terms of the Ordinance would unreasonably restrict the utilization of the property or that the granting of the Variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon, 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:

(1)

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;

(2)

The granting of the Variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area;

(3)

The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practical the formulation of a general regulation to be adopted as an amendment to the Ordinance;

(4)

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; and

(5)

At the time of the filing of the Variance application, the relief or remedy sought by the Variance application is not available through a Special Exception, Use Permit, or Rezoning process under this Ordinance.

(E)

Review and Action.

(1)

After an application is complete and proper notice is given, the BZA shall hold a public hearing on the application and approve, approve with conditions, or deny the application.

(2)

On its own initiative, or at the request of the applicant, BZA may also defer consideration of an application to a future meeting.

(F)

Prohibitions.

(1)

No provision of this Ordinance shall be construed as granting the BZA the power to rezone property.

(2)

Except where expressly permitted in other Chapters of the City Code, no Variance shall be granted to any standard or requirement in the City Code other than this Ordinance.

(G)

Effect of Approval.

(1)

Issuance of a Variance shall authorize only the particular Variance that is approved.

(2)

A Variance, including any conditions, shall run with the land and not be affected by a change in ownership.

(H)

Effect of Denial. If an application for a Variance is denied by BZA, no other application for substantially the same Variance may be filed until 12 months from the date of the denial.

(I)

Amendment. A Variance may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval.

(A)

Purpose and Intent. The BZA may grant or deny Special Exceptions in accordance with the procedures and standards outlined in this section. The purpose of Special Exceptions is to:

(1)

Provide for review of specified uses that have heightened impacts but not to the extent of uses requiring a Use Permit;

(2)

Provide a process for obtaining exceptions to specified Community Development Standards (Article III) in this Ordinance that may not be eligible or appropriate for a Variance; and

(3)

Provide a process for allowing exceptions to nonconforming uses, structures and/or lots.

(B)

Applicability.

(1)

Applications for a Special Exception may be made by any property owner, tenant, government official, department, or board to the Zoning Administrator.

(2)

A Special Exception is required for any use designated in Sec. 40.2-216, Table 40.2-216, as a use requiring a Special Exception in accordance with this section.

(3)

A Special Exception may be applied for to authorize alternative signage in accordance with an Alternative Signage Plan in Sec. 40.2-307(M).

(4)

A Special Exception may be applied for to authorize a fence taller than eight feet;

(5)

A Special Exception may be applied for to authorize the number, form, or nature of the parking requirements in accordance with an Alternative Parking Plan in Sec. 40.2-301(F).

(6)

A Special Exception may be applied for to authorize the expansion or enlargement of an existing development on a site that does not comply with the parking standards in Sec. 40.2-301.

(7)

Developments in the Innovation Overlay District may apply for a Special Exception in accordance with this section if complying with the parking requirements in Sec. 40.2-301 is not feasible.

(8)

A Special Exception may be applied for to authorize the expansion of a nonconforming structure or lot in accordance with Article IV Nonconformities.

(9)

A Special Exception may be applied for to authorize a nonconforming use that was abandoned in accordance with Article IV Nonconformities.

(10)

A Special Exception may be applied for to authorize a nonconforming single-family residential use in accordance with Article IV Nonconformities.

(11)

A Special Exception may be applied for to authorize the modification of a nonconforming attached or freestanding permanent sign (except for an off-premises sign or an outdoor advertising sign), including a conversion to LED electronic display.

(12)

A Special Exception may be applied for to authorize an accessory structure to exceed the height of the principal structure.

(13)

A Special Exception may be applied for to modify a required side yard setback for a single-family, detached dwelling on a parcel 30 feet or less in width, except where the setback is from a street.

(C)

Conditions of Approval. In approving a Special Exception, BZA may impose any conditions regarding the location, character, duration, and other features of the proposed Special Exception as may be deemed necessary to ensure compliance with the general intent and purposes of this Ordinance and to prevent or minimize adverse effects from the proposed use or modification.

(D)

Review Standards.

(1)

Whether to approve a Special Exception is a matter delegated by City Council to the legislative discretion of the BZA and is not controlled by any one factor.

(2)

The delegation of legislative discretion by City Council is subject to and constrained by any limitation on the scope of Special Exceptions expressly set forth in this Ordinance.

(3)

Applications for a Special Exception need not prove that granting the Special Exception would alleviate a hardship due to a physical condition relating to the property or would alleviate a hardship by granting a reasonable modification related to the property, but must comply with all other applicable zoning regulations and any conditions for approval imposed by the BZA.

(4)

In determining whether to approve or disapprove the proposed Special Exception, the BZA may consider any factor it deems applicable and consistent with the Code of Virginia, including, but not limited to, the nature, extent, external effects, location, design or method, or operation of a use or the impact of the requested modification of standards thereon, the City's comprehensive plan, and the public health, safety, and general welfare.

(E)

Review and Action.

(1)

After an application is complete and proper notice is given, the BZA shall hold a public hearing on the application and approve, approve with conditions, or deny the application.

(2)

On its own initiative, or at the request of the applicant, BZA may also defer consideration of an application to a future meeting.

(F)

Effect of Approval.

(1)

A Special Exception authorizes only the particular use or modification of standards that is approved.

(2)

A Special Exception, including any approved conditions, shall run with the land and shall not be affected by a change in ownership.

(G)

Effect of Denial. If an application for a Special Exception is denied by BZA, no other application for substantially the same use or modification may be filed until 12 months from the date of the denial.

(H)

Expiration and Extension.

(1)

A Special Exception automatically expires and is immediately null and void if:

(a)

A Special Exception shall automatically expire and become void two years from the date of approval by BZA if the use is inactive or changed to a different use, unless within such two-year period:

(i)

A building permit is obtained and erection or alteration of a structure is started; or

(ii)

A Certificate of Occupancy is obtained and the approved use is commenced.

(iii)

For the purposes of this section:

a.

The starting of erection of a structure shall mean the completion of all foundation work; and

b.

The starting of alteration of a structure shall mean the completion of all demolition work required prior to construction of alteration improvements.

(iv)

An extension is granted by the Virgina General Assembly.

(2)

The two year time period for commencement of the use (or the use to which a modification applies) may be extended for a period of not to exceed one year from the original expiration date provided that a written application for an extension is submitted to the Zoning Administrator at least 30 days prior to the expiration of the Special Exception.

(3)

If an application for an extension is timely submitted, the Special Exception shall be deemed extended until the Board of Zoning Appeals has voted to approve or deny the request for an extension.

(I)

Revocation.

(1)

A Special Exception may be revoked or modified by either City Council or the BZA after conducting a public hearing. The permit shall be revoked only if there is a finding that:

(a)

The Special Exception was obtained or extended by fraud or deception;

(b)

The applicant has failed to comply with one or more of the conditions of approval;

(c)

There is a change in conditions affecting the public health, safety, and welfare, since adoption of the Special Exception; or

(d)

There are repeated violations of this Ordinance by the holder of the Special Exception, related to the development approved by the Special Exception.

(J)

Amendments. A Special Exception may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval.

(Ord. No. 2021-46, § 1(Exh. A), 6-22-2021; Ord. No. 2021-94, § 1(Exh. A), 10-12-2021; Ord. No. 2023-43, §§ 20, 34, 5-23-2023; Ord. No. 2023-116, § 1, 11-14-2023)

(A)

Purpose and Intent.

(1)

The purpose and intent of this section is to establish standards and procedures for applications for COAs for development in a historic district described in Sec. 40.2-206 Historic Districts and development within the Downtown Design Overlay District described in Sec. 40.2-208(C) Downtown Design Overlay District.

(2)

A COA is an approval of the design and materials only.

(B)

Applicability. A COA is required prior to initiating any material change in appearance to the exterior of a building, structure, or lot located in an historic district and the Downtown Design Overlay District that can be seen from a right-of-way.

(C)

Reviewing Bodies.

(1)

A member of the Planning Department conferred by the Zoning Administrator shall review and decide on administrative COA applications.

(a)

Administrative COA applications are those seeking approval for actions having a minimal impact on the exterior appearance of a building, structure, or lot, as more specifically described in the historic guidelines for the applicable historic district.

(b)

If the Zoning Administrator designee denies an administrative COA application, the applicant, at its option, may elect to have the application heard and decided by HPC or DDC.

(c)

Upon applicant's election to have the application heard by HPC or DDC, the application is no longer considered administrative.

(2)

HPC shall review and decide non-administrative applications for COAs for the following historic districts, which have been designated by City Council:

(a)

Cradock

(b)

Olde Towne

(c)

Park View

(d)

Port Norfolk

(e)

Truxtun

(3)

DDC shall review and decided non-administrative applications for COAs for the following historic district, which has been designated by City Council:

(a)

Downtown Design District.

(D)

Exemptions. The following activities are exempt from the requirements of this section:

(1)

The normal repair and maintenance of any exterior architectural feature;

(2)

Ordinary yard maintenance and the planting of trees and shrubs in the historic districts that does not involve a material change in design, material, color or outer appearance;

(3)

Repainting resulting in the same color. Painting of previously unpainted masonry surfaces is not exempted from review.

(4)

Replacing broken windowpanes, missing roof shingles, or missing features with matching in-kind materials;

(5)

Addition or removal of television or radio antennas, skylights, or solar collectors in locations not visible from a public street;

(6)

Any change to a structure or feature that is not visible from a public street.

(7)

Repairs, maintenance, painting, demolition, or other alteration that the Building Official certifies is required due to an unsafe or dangerous condition.

(8)

Construction of a ramp to serve the handicapped.

(9)

Creation or placement of murals, sculptures or similar works of art.

(10)

Activities within the right-of-way, except as otherwise expressly provided in other sections of this Ordinance.

(E)

Conditions. In approving a COA, the approving entity may impose any conditions regarding the location, character, and other features of the proposed material change of appearance as may be deemed necessary to ensure compliance with the general intent and purposes of this Ordinance and to prevent or minimize adverse effects from the change of appearance. Provided, however, that no conditions to which the applicant does not agree shall be imposed.

(F)

Review Standards. A COA shall be issued upon a finding that the proposed material change(s) in appearance would not have a substantial adverse effect on the aesthetic, cultural, historic, or architectural significance and value of the historic structure or the historic district, based on review of the following factors.

(1)

Whether the property is used as it was historically or is given a new use that requires minimal change to its distinctive materials, features, spaces, and spatial relationships.

(2)

Whether the historic character of the property is retained and preserved.

(3)

Whether the removal of distinctive materials or alteration of features, spaces, and spatial relationships that characterize the property is avoided.

(4)

Whether the changes do not create a false sense of historical development, such as adding conjectural features or elements from other historic properties. Each property is recognized as a physical record of its time, place, and use.

(5)

Whether changes to a property that have acquired historic significance in their own right are retained and preserved.

(6)

Whether distinctive materials, features, finishes, and construction techniques or examples of craftsmanship that characterize a property or the historic district are preserved.

(7)

Whether deteriorated historic features are repaired rather than replaced, except where required by the severity of deterioration.

(8)

Whether the cost of materials and labor is financially reasonable in relation to the assessed value of the historic structure.

(9)

Where the severity of deterioration requires replacement of a distinctive feature, whether the new feature matches the old in design, color, texture, and, where possible, materials.

(10)

Whether replacement of missing features is substantiated by documentary and physical evidence.

(11)

Whether chemical or physical treatments, if appropriate, are undertaken using the gentlest means possible, and treatments that cause damage to historic materials are not used.

(12)

Whether archeological resources are protected and preserved in place or, if such resources must be disturbed, whether mitigation measures are undertaken.

(13)

Whether new additions, exterior alterations, or related new construction do not destroy historic materials, features, and spatial relationships that characterize the property. Whether the new work is differentiated from the old and is compatible with the historic materials, features, size, scale and proportion, and massing to protect the integrity of the property and its environment.

(14)

Whether new additions and adjacent or related new construction is undertaken in a manner that, if removed in the future, the essential form and integrity of the historic property and historic district are unimpaired.

(G)

Design Guidelines. The design guidelines for the historic district shall be used as a guide in evaluating the factors identified in Sec. 40.2-536(F) above.

(H)

Review and Action. COA applications shall be approved, approved with conditions, or denied.

(I)

Effect of Approval and Posting Requirement.

(1)

A COA authorizes only the particular actions that are approved.

(2)

A COA, including any conditions, shall run with the land and shall not be affected by a change in ownership.

(3)

During construction or installation, the COA shall be posted on the property in a location where it is visible from the public right-of-way and a complete set of the approved plans shall be retained on the premises and shall be made available to designated staff.

(J)

Effect of Denial by HPC or DDC.

(1)

An applicant whose application for a COA is denied by HPC or DDC shall have the right to appeal to City Council as provided in Sec. 40.2-522(D).

(2)

There is no time limitation on filing a new COA application after a denial.

(3)

If an application to raze, demolish, or move a structure is denied, then in addition to the right of appeal the applicant may obtain the authority to raze, demolish or move the structure of right by making a bona fide offer to sell the property and complying with all requirements of Code of Virginia § 15.2-2306(A)(3).

(K)

Amendment. An approved COA may be amended or modified only in accordance with the procedures and standards established for its original approval.

(L)

Expiration.

(1)

An approved COA automatically expires and is immediately null and void as to any work not commenced within two years of issuance, except if an extension is granted by the Virginia General Assembly.

(2)

An expired COA shall require approval of a new COA application to complete any incomplete work in accordance with the procedures and standards in this section.

(Ord. No. 2023-43, § 35, 5-23-2023)

The purpose of Site Plan review is to ensure that proposed development meets all standards required by this Ordinance, other approvals under this Ordinance, the City Code, and the Code of Virginia and state regulations, and applicable federal law and regulations.

The City Engineer and their designees shall have the authority to administer the Site Plan review process, including submittal requirements and review timeframes, subject to compliance with the Code of Virginia.

(A)

Site Plans must be submitted and approved prior to commencement of any development (including new structures, renovated structures, additions to existing structures, and grading and land disturbing activities).

(B)

Where Site Plan approval is required for development, no permit shall be issued for the development except in compliance with the approved Site Plan.

The following types of development do not require Site Plan approval unless approval is required under Ch. 9.1 (Chesapeake Bay Preservation Area Overlay District) or another chapter of the City Code:

(A)

Installation of a new manufactured home on an existing manufactured home site within an existing manufactured home park; or

(B)

A change of use, provided that:

(1)

The new use does not require the provision of additional parking under this Ordinance; and

(2)

No additional vehicular access points with adjacent streets are proposed or required under this Ordinance.

(A)

Major Site Plans are required for development other than detached single-family residential that exceeds 2,500 square feet of disturbed area.

(B)

Minor Site Plans are required for multi-family, townhouse dwellings, two-family dwellings, three- to four-family dwellings, institutional, commercial, or industrial development that is equal to or less than 2,500 square feet of disturbed area.

(C)

Single-Family Site Plans are required for all new detached single-family residential development.

(A)

Applicability. The provisions of this section shall apply to all new development as follows:

(1)

Any residential, commercial, industrial use, or combination thereof, where the anticipated average weekday 24-hour traffic generation, using the Trip Generation Manual (Institute of Transportation Engineers, Sixth Edition or as it may from time to time be amended) equals or exceeds 1,000 trip ends or where the traffic volume during a peak hour equals or exceeds 100 trip ends unless the City Engineer shall determine, in writing, that such analysis is unnecessary due to the existence of previous studies and analyses which adequately cover the extent of the proposed development and its traffic impact.

(2)

Any development or subdivision of a portion of property where the potential average weekday 24-hour traffic generation, using the Trip Generation Manual (Institute of Transportation Engineers, Sixth Edition or as it may from time to time be amended) for the developable portion of the entire property based on permitted uses under existing zoning equals or exceeds 1,000 trip ends or where the traffic volume during a peak hour equals or exceeds 100 trip ends, regardless whether the remainder of the property is currently proposed for development unless the City Engineer shall determine, in writing, that such analysis is unnecessary due to the existence of previous studies and analyses which adequately cover the extent of the proposed development and its traffic impact.

(3)

Any Amendment of the Zoning Map or Use Permit applications, other than those requests initiated by the Planning Commission or City Council, where the anticipated average weekday 24-hour traffic generation, using the Trip Generation Manual (Institute of Transportation Engineers, Sixth Edition or as it may from time to time be amended) equals or exceeds 1,000 trip ends or where the traffic volume during a peak hour equals or exceeds 100 trip ends unless the City Engineer shall determine, in writing, that such analysis is unnecessary due to the existence of previous-studies and analyses which adequately cover the extent of the proposed development and its traffic impact.

(4)

Any nonresidential development which proposes to access a street which is residential in character and classified as a minor collector or lower order street.

(5)

Any other development proposal that, as determined by the City Engineer, has a significant potential to cause or aggravate traffic safety or congestion problems and, as such, would benefit from a professional review of proposed access and circulation designs.

(B)

Traffic Impact Analysis Standards and Requirements.

(1)

For any development described in subsection (A) above, a traffic impact analysis, prepared by a licensed professional engineer, shall be submitted for review and consideration by the City.

(2)

Subdivision Plats, Site Plans, Amendments to the Zoning Map, Use Permit applications, and other development proposals for which a traffic impact analysis is required shall not be deemed to be complete until the traffic impact analysis is submitted. The Engineering Department will provide available technical information. The applicant must collect traffic data that is not already available or is outdated.

(3)

The submitted TIA shall, unless otherwise approved by the City Engineer in writing, contain the following information and analysis:

(a)

Existing conditions summary including 24-hour volumes, peak periods and peak volumes on adjacent roadways, peak periods and peak volumes of the generator, and peak hour factor(s); roadway geometrics; grades; lateral clearance; heavy vehicles, pedestrian, bicycle, and recreational vehicle percentages; existing lane configurations; traffic control devices and timing plans if signals are present and level of service analysis based on the most current version of the Highway Capacity Manual.

(b)

Future conditions summary, including the horizon (analysis) year(s) and the criteria used in its selection, committed future roadway improvements, traffic growth factors combined with forecasts for adjacent sites to determine future background traffic (both 24-hour and peak period), and level of service analysis, compared with existing conditions.

(c)

Trip generation and design hour volumes-including traffic forecast for site development to include 24-hour and peak hour volumes both for the traffic generator itself and on adjacent roadways. Trip Generation Manual (Institute of Transportation Engineers, Sixth Edition, or as it may from time to time be amended) rates or equations shall be used unless verifiable local data is available. Any assumptions or adjustments shall be fully documented and, where appropriate, justified with source references provided.

(d)

Trip distribution and traffic assignment, including a directional distribution of site traffic to its area of influence based on primary market, analogy, origin-destination, gravity model, or other similar methods. Each step in the process shall be fully and carefully documented.

(e)

Design year total volumes developed for both 24-hour and for the peak periods of the generator and on adjacent roadways.

(f)

Capacity analysis-including intersection and lane capacity based on the 2000 Highway Capacity Manual as it may from time to time be amended and revised.

(g)

Where intersections (both signalized and unsignalized) are spaced in such proximity or the volumes are such that the intersection does not operate independently, appropriate progression and queuing analyses performed using a recognized methodology or analysis or simulation package must accompany the capacity analyses.

(h)

Capacity analyses shall be prepared for each potential access design scenario. Any assumptions and adjustments to the default values in the 2000 Highway Capacity Manual (most up to date version) shall be fully documented and justified. These include, but are not limited to, peak hour factor, average running speeds, and cycle lengths, especially very short or long cycles. All worksheets shall be submitted.

(i)

The distribution and frequency of traffic accidents shall be analyzed and a determination made as to whether any safety deficiencies exist or will be caused or exacerbated. This shall specifically include a safety analysis of all proposed street extensions.

(j)

The recommended roadway and traffic network improvements based on the design hour in the design year shall be shown on a scaled plan sheet with appropriate narrative. Such improvements shall be designed to yield a minimum level of service of "C" as defined by the 2000 Highway Capacity Manual as it may from time to time be amended, supplemented, or revised. Where the existing conditions provide a current level of service of less than "C," the improvements shall be designed to at least maintain the current volume to capacity ratio as determined by the methods contained in the 2000 Highway Capacity Manual without further degradation through the design year plus two years. A detailed construction cost estimate of the required improvements shall be provided.

(k)

Including the number and width of driveway lanes, the appropriate throat lengths (both unobstructed and with cross traffic permitted) for ingress and egress points, stacking and queuing lanes, pedestrian accommodations, bicycle facilities, and any other facilities or accommodations and any other factor which could impact traffic operations along the adjacent roadways or overall traffic safety, both internal and external.

(l)

The internal circulation system shall be designed to preclude stacking or queuing in the travel lanes of adjacent roadways during the peak hours of the traffic generator.

(m)

Including all conclusions of the analyst applicable to the site, particularly with respect to the appropriate timing and phasing of improvements.

(n)

Timing and phasing must be clearly tied to identifiable stages of development or specific time frames.

(o)

Conclusions about the relative safety of the post-development situation shall also be included.

(p)

An executive summary containing key findings and recommended actions.

(4)

All intersections, commercial entrances, median breaks, pavement markings, driveways, or other roadway features potentially affecting traffic flow located within 500 feet of the proposed development as well as all intersections and driveways internal to the development shall be considered and either shown or clearly noted on a scaled plan submitted with the traffic impact analysis.

(A)

Licensing Requirement. Site plans shall be prepared and certified respectively by an engineer, architect, landscape architect, or land surveyor licensed in Virginia and submitted to the City Engineer.

(B)

Submittal Requirements.

(1)

The City Engineer shall have authority to promulgate standards for legibility and content of Site Plan submittals, including different standards for Major Site Plans, Minor Site Plans and Single-Family Site Plans.

(2)

Submittals which do not comply with the established standards may be rejected by the City Engineer or his designee prior to review.

(3)

Commercial developments shall submit building elevations for new construction with all Major Site Plans.

(C)

Review. The City Engineer or his designees shall provide the applicant with comments on or approval of a submittal within the timeframes required by the Code of Virginia.

(A)

The City Engineer or his designee shall approve Site Plans that conform to the requirements of this Ordinance, other approvals under this Ordinance, the City Code, and the Code of Virginia.

(B)

Approval of a Site Plan may include conditions that are reasonably required to satisfy the standard for approval of the site plan.

(C)

Developments shall be required to install public improvements in accordance with the requirements of Ch. 32 of the City Code.

Site Plan approvals shall expire five years from the date of approval unless building permits have been obtained.

(A)

Any change to an approved Site Plan requires submission and approval of a new Site Plan, except that minor changes may be approved administratively by the City Engineer or designee.

(B)

A minor modification is one that will not substantially alter the terms of the original approval.

(C)

Approval of minor modifications does not extend the expiration date of the original approval.

(A)

The Zoning Administrator shall have all necessary authority on behalf of City Council to enforce the Zoning Ordinance.

(B)

The Zoning Administrator's authority shall include, without limitation, ordering in writing the remedying of any condition found in violation of the Ordinance and insuring compliance with the Ordinance and bringing legal action, including injunction, abatement, or other appropriate action or proceeding.

(C)

The Zoning Administrator may order, without limitation, discontinuance of any illegal use of land, buildings or structures; removal of illegal buildings or structures or of additions, alterations or structural changes thereto; discontinuance of any illegal work being done; or any other action or cessation authorized by this Ordinance or state law to ensure compliance with the Ordinance or to prevent violation of its provisions.

(A)

Any failure to comply with a standard, requirement, prohibition, or limitation imposed by this Ordinance, or the terms or conditions of any permit or other development approval or authorization granted under the authority of this Ordinance, shall constitute a violation of this Ordinance.

(B)

All permits, licenses or authorizations affecting uses or structures within the city must conform with the provisions of this Ordinance.

(C)

Any permit, license or other authorization which is issued in conflict with the provisions of this Ordinance shall be null and void.

(D)

It shall be the responsibility of the person obtaining a permit, license or other authorization affecting uses or structures on land to determine whether such permit, license or other authorization is in conformity with this Ordinance, and whether additional authorizations are needed to enable such person to use the land or structure as proposed.

(E)

Provided however that nothing in this Division V Enforcement shall impair vested rights as set forth in Sec. 15.2-2307 of the Code of Virginia.

(A)

Issuance. Upon becoming aware of any violation of the provisions of this Ordinance, the Zoning Administrator may issue written notice of such violation to any person committing or permitting the violation.

(B)

Contents. The notice of violation shall:

(1)

State the nature of the violation, date that it was observed, the remedy or remedies necessary to correct the violation, and a reasonable time period for the correction of the violation.

(2)

Include a statement informing the recipient that he or she may have a right to appeal the notice of zoning violation or written order within 30 days of the mailing or posting of the notice in accordance with Subsection 15.2-2311(A) of the Code of Virginia, and that the decision shall be final and unappealable if not appealed within 30 days.

(3)

Include the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal.

(C)

Service.

(1)

The notice of violation shall be sent by registered or certified mail to, or posted at, the last known address or usual place of abode of the property owner or other alleged violator, as applicable, or the alleged violator's registered agent, if any.

(2)

The notice shall include language advising the alleged violator of the right to appeal to the BZA in accordance with Sec. 15-2-2309 of the Code of Virginia.

(A)

Except as provided in Sec. 40.2-554 (A) and (B) below, any person or entity, whether as principal, agent, employee or otherwise, violating, causing or permitting the violation of any of the provisions of this Ordinance shall be guilty of a misdemeanor and, upon conviction thereof, be fined not more than $1,000 (exclusive of civil penalties previously asses under Sec. 40.2-554 below).

(B)

If the violation is uncorrected at the time of the conviction, the court shall order the violator to abate or remedy the violation in compliance with the Zoning Ordinance, within a time period established by the court.

(C)

Failure to remove or abate a zoning violation within the specified time period shall constitute a separate misdemeanor offense punishable by a fine of not more than $1,000.00; any such failure during a succeeding 10-day period shall constitute a separate misdemeanor offense punishable by a fine of not more than $1,500.00; and any such failure during any succeeding 10-day period shall constitute a separate misdemeanor offense for each 10-day period punishable by a fine of not more than $2,000.00.

(D)

Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation, including without limitation, pursuing injunctive relief.

(A)

Except as provided in Sec. 40.2-554(D), a violation of the following provisions of this Ordinance shall be deemed an infraction and shall be punishable by a civil penalty of $50.00 for a first offense, $100.00 for a second offense, and $200.00 for each subsequent offense arising out of the same set of operative facts:

(1)

Violation of Sec. 40.2-217(I)(3)(m) regarding parking of major recreational equipment in residential zoning districts;

(2)

Violation of Sec. 40.2-301(C)(2) regarding parking of commercial vehicles in residential zoning districts;

(3)

Violation of Sec. 40.2-217(C)(2) regarding parking on unimproved surfaces in residential zoning districts;

(4)

Violation of Sec. 40.2-307 of this Ordinance regarding signage (each individual violating sign shall constitute a separate infraction), other than the illegal posting of signs on public property or public right-of-way;

(5)

Violation of Sec. 40.2-217 of this Ordinance regarding home occupations, including violations of a condition of approval for an authorized home occupation.

(6)

The making of a false certification on any application for a zoning approval required by this Ordinance.

(B)

A violation of the provisions of this Ordinance regarding the requirement to obtain or comply with an approved Certificate of Appropriateness (COA) for development or rehabilitation in an historic district shall be deemed an infraction and shall be punishable by civil penalties in the amounts listed below:

(1)

One hundred dollars for removal and/or installation of roofing materials (initial violation)

(2)

One hundred dollars for removal and/or installation of wall siding materials (initial violation)

(3)

Two hundred dollars for removal and/or installation of windows (initial violation)

(4)

One hundred dollars for removal and/or installation of exterior doors (initial violation)

(5)

One hundred dollars for removal and/or installation of fences (initial violation)

(6)

Fifty dollars for the painting of any exterior surfaces (initial violation)

(7)

One hundred dollars for the removal and/or installation of driveways and/or sidewalks (initial violation)

(8)

Two hundred dollars for the demolition of part or all of any structure (initial violation)

(9)

Two hundred dollars for the construction of any addition (initial violation)

(10)

An additional $500.00 for a continuing offense where the violator has been issued a notice for a violation listed in (1)—(9) above and assessed a civil penalty, but has failed to timely correct the violation

(11)

An additional $500.00 for a repeat offense where the violator has previously been issued a notice a violations listed in (1)—(9) above and assessed a civil penalty, and subsequently commits another violation with respect to the same property or any other property within an historic district

(C)

Each day during which any violation of the provisions enumerated in subsection (A) or (B) above is found to have existed shall constitute a separate offense. However, in no event shall any such violation arising from the same set of operative facts be charged more frequently than once in any ten-day period, nor shall a series of such violations arising from the same set of operative facts result in civil penalties which exceed a total of $5,000.00.

(D)

The designation of any violation of this Ordinance as an infraction pursuant to subsections (A) and (B) above shall be in lieu of criminal sanctions, and except for any violation resulting in injury to any person or persons, such designation shall preclude the prosecution of a violation as a criminal misdemeanor.

(1)

Provided however, that when civil penalties assessed against a violator for the same violation or type of violation equal or exceed $5,000.00, the violation may be prosecuted as a criminal misdemeanor in accordance with Sec. 40.2-553.

(2)

Zoning violations resulting in injury to a person or persons are not to be subject to Sec. 40.2-554 and may be prosecuted criminally, including pursuant to Sec. 40.2-553.

(E)

After having served a notice of violation on any person, firm or corporation, whether as principal, agent, employee or otherwise, causing or permitting a violation of the Zoning Ordinance provisions enumerated in subsections (A) and (B) above, and if such violation has not ceased or been

corrected within such reasonable time as is specified in such notice or recurs thereafter, the Zoning Administrator shall issue a civil summons or cause a summons or ticket to be served on such person as provided by law.

(F)

The summons or ticket shall contain the following information:

(1)

The name and address of the person charged.

(2)

The nature of the infraction and the Ordinance provision[s] being violated.

(3)

The location, date and time that the infraction occurred or was observed.

(4)

The amount of the civil penalty assessed for the infraction.

(5)

The manner, location and time in which the civil penalty may be paid to the City.

(6)

The right of the recipient of the summons or ticket to elect to stand trial for the infraction and the date of such trial.

(G)

The summons or ticket shall provide that any person summonsed for a violation may elect to pay the civil penalty by making an appearance in person or in writing by mail to the City Treasurer, or designee, at least 72 hours prior to the time and date fixed for trial and, by such appearance, may enter a waiver of trial, admit liability and pay the civil penalty established for the offense charged.

(H)

Such summons or ticket shall provide that a signature to an admission of liability shall have the same force and effect as a judgment of court; however, an admission shall not be deemed a criminal conviction for any purpose.

(I)

No admission of liability shall relieve the violator of the obligation to correct or cease, as applicable, the underlying violation.

(J)

If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided by law.

(1)

An admission or finding of liability shall not be deemed a criminal conviction for any purpose.

(2)

If the violation remains uncorrected at the time of the finding of liability, the court may order the violator to abate or remedy the violation within a time period ordered by the court but, except as otherwise provided by the court for good cause shown, no later than six months after the date of a finding of liability.

(3)

Each day during which the violation continues after the court-ordered abatement period has ended shall constitute a separate offense.

(A)

Zoning Permits.

(1)

Required Findings. The zoning administrator may revoke a zoning permit if the holder of the zoning permit is found to do the following:

(a)

Fails to develop or maintain the property in accordance with the plans submitted as approved in the zoning permit.

(b)

Fails to abide by the requirements of this zoning ordinance, including, but not limited to, the requirements in section 40.2-217 (Use Specific Standards); or

(c)

Fails to meet any additional requirement lawfully imposed in connection with the issuance of the zoning permit.

(B)

Use Permits or Special Exceptions.

(1)

Use permits may only be revoked by city council in accordance with subsection 40.2-533(L). Provided however that if a use permit for an entertainment establishment, event space/banquet ball, or private club is scheduled for review or potential revocation by city council pursuant to 40,2-217(G)(5)(b)(ix), (xiv), or (xvi) then the zoning administrator shall have the authority to order the entertainment establishment, event space/banquet hall, or private club to temporarily cease operation of the use for the lesser of 60 days or completion of the city council review or revocation hearing.

(2)

Special exceptions may only be revoked by city council or the BZA in accordance with subsection 40.2-535(I).

(C)

Notice of Revocation of Zoning Permit. Before a zoning permit may be revoked, the zoning administrator shall give the holder of the zoning permit ten days notice of intent to revoke the permit in writing, which shall inform the holder of the reasons for revocation.

(D)

Appeal of Revocation of Zoning Permit.

(1)

A revocation of a zoning permit by the zoning administrator may be appealed by any person aggrieved within 30 calendar days to the BZA in accordance with subsection 40.2-522(B).

(2)

Except in cases of imminent peril to life and property as certified by the zoning administrator to the BZA or in accordance with subsection 40.2-555(B)(1), whenever an appeal of a zoning permit revocation is timely and property filed with the BZA, such filing shall stay or limit all subsequent proceedings until the BZA has ruled on the appeal.

(E)

Effect of Revocation; Discontinuation of Use.

(1)

Eating and Drinking Establishments. No person may continue to make use of land or buildings for the operation of an eating and drinking establishment after a zoning permit authorizing the use has been revoked, and no application for a new zoning permit for an eating and drinking establishment operating on the same property shall be considered for six months from the date of revocation.

(2)

All Other Uses. No person may continue to make use of land or buildings in the manner that was authorized by a zoning permit after such permit has been revoked unless it is determined by the zoning administrator that the use and site are in compliance with the zoning ordinance and all other applicable laws and a new zoning permit has been issued.

(F)

Effect of ABC License Revocation on Zoning Authorization. The suspension, revocation, non-renewal or voluntary surrender of an ABC license for an establishment shall automatically trigger review of the establishment's use permit, special exception, or zoning permit, as applicable, by the zoning administrator, and shall constitute grounds for the zoning administrator to revoke the zoning permit in accordance with the provisions of this section, or for city council or BZA to revoke the use permit or special exception, as applicable.

(Ord. No. 2025-58, § 5(Exh. A), 8-26-2025)

(A)

Except as expressly set forth in this Division V, the remedies provided herein are cumulative and not exclusive and shall be in addition to any other remedies provided by law, including, but not limited to, injunctive relief, mandamus and any other appropriate action to prevent, enjoin, abate or remove any structure, vehicle or use in violation of the Ordinance.

(B)

Nothing in this Division V shall be construed to prohibit the Zoning Administrator or the City from seeking immediate enforcement through injunctive relief without prior written notice upon a determination that a delay in correcting the violation would pose a danger to the public health, safety or welfare.

(C)

Nothing in this Division V shall be construed to limit the City's authority to seek or impose remedies for the violations described herein that are established by other chapters of the City Code or by the Code of Virginia, including without limitation the Virginia Uniform Statewide Building Code.

Editor's note— Ord. No. 2025-58, § 5(Exh. A), adopted Aug. 26, 2025, renumbered the former § 40.2-555 as § 40.2-556. The historical notation has been retained with the amended provisions for reference purposes.