(a)

A board of zoning appeals consisting of five members shall be appointed by the county circuit court.

(b)

The members of the board of zoning appeals shall serve for five-year staggered terms of office.

(c)

The board of zoning appeals shall be compensated at a rate set by the board of supervisors.

(d)

Any member of the board of zoning appeals may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court which appointed him, after a hearing held after at least 15 days' notice.

(e)

Appointments to fill vacancies shall be only for the unexpired portion of the term.

(Code 1988, § 17-341; Ord. No. O-11-02, § 1, 2-22-2010)

State Law reference— Creation, membership, etc., of board of zoning appeals, Code of Virginia, § 15.2-2308.

Editor's note— Ord. No. O-11-02, § 2, adopted Feb. 22, 2010, repealed § 90-982, which pertained to the term and composition of members of the board of zoning appeals and derived from Code 1988, § 17-342.

No member of the board of zoning appeals shall act upon a matter before the board of zoning appeals in violation of the State and Local Government Conflict of Interests Act (Code of Virginia, § 2.2-3100 et seq.).

(Code 1988, § 17-343)

The board of zoning appeals shall choose annually its own chairman and vice-chairman who shall act in the absence of the chairman.

(Code 1988, § 17-344)

State Law reference— Officers of board of zoning appeals, Code of Virginia, § 15.2-2308.

The board of zoning appeals shall have the power and duty:

(1)

To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement related to planning, subdivision of land or zoning. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The determination of the administrative officer shall be presumed to be correct. At a hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence. The board shall consider any applicable ordinances, laws and regulations in making its decision.

(2)

To grant upon appeal or original application in specific cases a variance as defined in Code of Virginia, § 15.2-2201, 1950 as amended; the burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that his application meets the standard for a variance as defined in Code of Virginia § 15.2-2201, 1950, as amended and the criteria set out in Code of Virginia § 15.2-2309, 1950, as amended.

a.

A variance shall be granted if:

1.

The evidence shows that the strict application of the terms of an ordinance relating to planning, subdivision of land or zoning 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 on the property at the time of the effective date of the planning, subdivision of land or zoning ordinance, or alleviate a hardship by granting a reasonable modification to a property or improvements on the property requested by, or on behalf of, a person with a disability; and

2.

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; and

3.

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

4.

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

5.

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

6.

The relief or remedy sought by the variance application is not available through an administrative variance, special exception or modification of the applicable ordinance.

b.

Any variance granted to provide a reasonable modification to a property or improvements on the property requested by, or on behalf of, a person with a disability shall expire when the person benefited by it is no longer in need of the modification to the property or improvements provided by the variance, subject to the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990.

No variance shall be considered except after notice and hearing as required by the Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail.

c.

In granting a variance the board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. The property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state and local law; however, the structure permitted by the variance may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance is required. Where the expansion is proposed within an area of the site or part of the structure for which a variance is required, the approval of an additional variance shall then be required.

(3)

To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by Code of Virginia, § 15.2-2204, 1950, as amended. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail.

(4)

To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by the question, and after public hearing with notice as required by Code of Virginia, § 15.2-2204, 1950, as amended, the board may interpret the map in such way as to carry out the intent and purpose of this chapter for the particular section or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.

(5)

No provision of this section shall be construed as granting the board of zoning appeals the power to rezone property or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by the board of supervisors.

(6)

The board by resolution may fix a schedule of regular meetings and may also fix the day to which any meeting shall be continued if the chairman, or vice-chairman if the chairman is unable to act, finds and declares that weather or other conditions are such that it is hazardous for members to attend the meeting. Such finding shall be communicated to the members and the press as promptly as possible. All hearings and other matters previously advertised for such meeting in accordance with Code of Virginia, § 15.2-2312, 1950 as amended, shall be conducted at the continued meeting and no further advertisement is required.

(7)

To hear and decide appeals to decrease the 100-foot-wide buffer area provided for as a portion of the resource protection area (RPA) overlay zoning district in accordance with the provisions provided in section 90-596 of this Code.

(8)

To hear and decide applications for special exceptions as may be authorized in the zoning ordinance.

(Code 1988, § 17-345; Ord. No. O-12-37, § 1, 11-27-2012; Ord. No. O-19-11, 5-14-2019; Ord. No. O-22-37, § 13, 12-13-2022)

State Law reference— Powers and duties of board of zoning appeals, Code of Virginia, § 15.2-2309.

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

(Code 1988, § 17-346)

State Law reference— Rules of board of zoning appeals, Code of Virginia, § 15.2-2308.

(a)

The meetings of the board of zoning appeals shall be held at the call of its chairman or at such times as a quorum of the board of zoning appeals shall determine.

(b)

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

(c)

A quorum shall be at least three members.

(Code 1988, § 17-347)

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

(Code 1988, § 17-348)

The board of zoning appeals shall keep minutes of its proceedings showing the vote of each member upon each question or if absent or failing to vote indicating such fact. It shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of zoning appeals and shall be a public record.

(Code 1988, § 17-349)

(a)

An appeal to the board of zoning appeals may be taken by any person aggrieved or by any officer, department, board or bureau of the county affected by any decision of the zoning administrator or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this chapter or any ordinance adopted pursuant thereto. Notwithstanding any charter provision to the contrary, any written notice of a zoning violation or a written order of the zoning administrator dated on or after July 1, 1993, shall include a statement informing the recipient that he may have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with this section and that the decision shall be final and unappealable if not appealed within 30 days. The appeal period shall not commence until the statement is given. The appeal shall be taken within 30 days after the decision appealed from by filing with the zoning administrator, and with the board of zoning appeals, a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board of zoning appeals all the papers constituting the record upon which the action appealed from was taken.

(b)

An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board of zoning appeals that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order granted by the board of zoning appeals or by a court of record, on application and on notice to the zoning administrator and for good cause shown.

(c)

In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by the zoning administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer or through fraud. The six-day limitation period shall not apply in any case where, with the concurrence of the attorney for the board of supervisors, modification is required to correct clerical or other nondiscretionary errors.

(Code 1988, § 17-350)

State Law reference— Appeals to board, Code of Virginia, § 15.2-2311.

Appeals shall be mailed to the board of zoning appeals in care of the zoning administrator, and a copy of the appeal shall be mailed to the secretary of the planning commission. A third copy shall be mailed to the individual, official, department or agency concerned, if any.

(Code 1988, § 17-351)

(a)

The board of zoning appeals shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties in interest and decide the application or appeal within 90 days of the filing of the application or appeal. In exercising its powers the board of zoning appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from. The concurring vote of three members of the board of zoning appeals shall be necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter or to effect any variance from this chapter.

(b)

The board of zoning appeals shall keep minutes of its proceedings and other official actions which shall be filed in the office of the board of zoning appeals and shall be public records. The chairman of the board of zoning appeals, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(Code 1988, § 17-352)

State Law reference— Procedure on appeal, Code of Virginia, § 15.2-2312.

(a)

Any persons jointly or severally aggrieved by any decision of the board of zoning appeals or any aggrieved taxpayer or any officer, department, board or bureau of the county may file with the clerk of the circuit court for the county a petition specifying the grounds on which aggrieved within 30 days after the final decision of the board of zoning appeals.

(b)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of zoning appeals and shall prescribe therein the time within which a return thereto must be made and served upon the realtor's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board of zoning appeals and on due cause shown, grant a restraining order.

(c)

The board of zoning appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of the portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(d)

If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take evidence as it may direct and report the evidence to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(e)

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

(f)

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

(g)

Costs shall not be allowed against the board of zoning appeals, unless it shall appear to the court that it acted in bad faith or with malice in making the decision appealed from. If the decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person who requested the issuance of the writ of certiorari to pay the costs incurred in making the return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the board of zoning appeals may request that the court hear the matter on the question of whether the appeal was frivolous.

(Code 1988, § 17-353)

State Law reference— Certiorari to review decision of board, Code of Virginia, § 15.2-2314.