(a)

Establishment; appointment; purpose. The board of zoning appeals is hereby created, consisting of five members nominated and confirmed by the city council for staggered three-year terms. The members of the board of zoning appeals must be (1) residents of the municipality for at least three years preceding his or her appointment; (2) cannot be a member of the planning commission; and (3) cannot hold any other elective or appointive office within the city. The council may appoint up to three additional members to serve as alternate members pursuant to the conditions of W. Va. Code, § 8A-8-3. The board of zoning appeals shall serve as a quasi-judicial panel and possess the powers and duties detailed in subsection (c).

(b)

Board procedures—General.

(1)

Officers. At its first regular meetings each year, the board of zoning appeals shall elect a chairperson and vice-chairperson from its membership. The vice-chairman shall have the power and authority to act as chairperson during the absence or disability of the chairperson.

(2)

Meetings. The board of zoning appeals shall meet quarterly and may meet more frequently at the written request of the chairperson or by two or more members. Notice for a special meeting must be in writing, include the date, time and place of the special meetings, and be sent to all members at least two days before the special meeting. Written notice of a special meeting is not required if the date, time and place of the special meeting were set in a regular meeting.

(3)

Decisions. The concurring vote of a majority of all members of the board of zoning appeals shall be necessary to reverse any order, requirement, decision, or determination of the zoning administrator, to grant special exceptions, to effect variances of this chapter, or to decide in favor of the applicant upon any matter which the board is required to determine.

(4)

Records. The board shall keep minutes of its proceedings recording attendance of members, votes of members on each question, facts entered in evidence, findings made, official actions, and recommendations. A copy of these minutes shall be filed in city hall for public inspection.

(c)

Powers and duties. The board of appeals shall have the powers and duties specified below, and applications shall be handled in the manner specified.

(1)

Hear, review and determine appeals from an order, requirement, decision or determination made by an administrative official or board charged with the enforcement of a zoning ordinance or rule and regulation adopted pursuant thereto;

(2)

Authorize exceptions to the district rules and regulations only in the classes of cases or in particular situations, as specified in the zoning ordinance;

(3)

Hear and decide conditional uses of the zoning ordinance upon which the board is required to act under the zoning ordinance;

(4)

Authorize, upon appeal in specific cases, a variance to the zoning ordinance;

(5)

Reverse, affirm or modify the order, requirement, decision or determination appealed from and have all the powers and authority of the official or board from which the appeal was taken;

(6)

Adopt rules and regulations concerning:

a.

The filing of appeals, including the process and forms for the appeal;

b.

Applications for variances and conditional uses;

c.

The giving of notice; and

d.

The conduct of hearings necessary to carry out the board's duties under the terms of this article;

(7)

Keep minutes of its proceedings;

(8)

Keep an accurate and complete audio record of all the board's proceedings and official actions and keep the audio record in a safe manner, which audio record is accessible within 24 hours of demand, for three years;

(9)

Record the vote on all actions taken;

(10)

Take responsibility for the custody and preservation of all papers and documents of the board. All minutes and records shall be filed in the office of the board and shall be public records;

(11)

With consent from the governing body, hire employees necessary to carry out the duties and responsibilities of the board—provided, that the governing body sets the salaries; and

(12)

Supervise the fiscal affairs and responsibilities of the board.

(d)

Appeal to board of zoning appeals. The board shall hear and decide appeals from any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of a zoning ordinance, or rule or regulation adopted pursuant to a zoning ordinance. Upon request of the board of zoning appeals, the administrative official or board shall transmit all document, plans and papers constituting the record of the action from which the appeal is taken. The appeal shall:

(1)

Specify the grounds of the appeals.

(2)

Be filed within 30 days of the original order, requirement, decision or determination made by n administrative official or board charged with the enforcement of a zoning ordinance.

(3)

Be on a form prescribed by the board.

(e)

Notice and hearing of appeal.

(1)

A written appeal for review of the administrative action shall be submitted to the board of zoning appeals and zoning administrator indicating the provision of zoning ordinance and administrative action in question, asking a specific question or questions to be answered by the board, stating the applicant's reason for alleging that an error has been made by the zoning administrator in administering zoning ordinance, and providing other relevant data requested by the board. Appeals of action by the zoning administrator shall be filed within 30 days of the interpretation, order, or other administrative action taken and may be taken by any aggrieved person or by any city official or body affected by action of the zoning administrator.

(2)

When an appeal has been filed with the board of zoning appeals, all proceedings and work on the premises in question shall be stayed, except as provided below. A stay may not be had:

a.

If the official or board from where the appeal was taken certifies in writing to the board of zoning appeals that a stay would cause imminent peril to life or property. If written certification is filed, then proceedings or work on the premises shall not be stayed.

b.

Upon further administrative proceedings, including, but not limited to, submissions to and reviews by the staff or any administrative body; or

c.

Upon engineering or architectural work that does not disturb the real estate beyond what is necessary to complete engineering, survey work or other tests.

Nothing in this section prevents a party from obtaining a restraining order.

(3)

Upon receipt of an appeal of an administrative action, the board shall notify the zoning administrator, who shall promptly transmit to the board all relevant papers constituting the record of the action being appealed. Within ten days of receipt of the appeal by the board of zoning appeals, the board shall set a time for the hearing of appeal and give notice. The hearing on appeal must be held within 45 days of receipt of the appeal by the board. At least 15 days prior to the date set for the hearing of the appeal, the board shall publish a notice of the date, time and place of the hearing on the appeal as a Class I legal advertisement in compliance with the provisions of W. Va. Code, § 59-3-1 et seq. and written notice shall be given to the interested parties. The board may require the party filing the appeal to pay for the cost of public notice and written notice to the interested parties.

(4)

The hearing shall be held and the applicant (appellant) shall present information and evidence relevant to the appeal. The zoning administrator shall present information relevant to such administrator's reasons for the administrative action being appealed. Any person may appeal in person or by agent or attorney licensed to practice in West Virginia.

(5)

Every decision by the board must be in writing and state findings of fact and conclusions of law on which the board based its decision. The written decision by the board shall be rendered within 30 days after the hearing. If the board fails to render a written decision within 30 days after the hearing, then any party may pursue additional legal remedies to obtain a decision, including, but not limited to, seeking a writ of mandamus.

(f)

Administrative powers. In exercising its powers, the board may in accordance with this chapter, reverse, affirm, or modify in whole or in part the order, requirement, decision, interpretation, or determination appealed from and may issue such orders, requirements, decisions, interpretations, or determinations as may be necessary.

(g)

Appeals from board of zoning appeals. Any person jointly or severally aggrieved by a decision of the board of zoning appeals may, within 30 days of the board's decision, seek review by circuit court by proceedings in the nature certiorari setting forth that the decision or order by the board of zoning appeals is illegal in whole or in part and specify the grounds of the alleged illegality.

(Ord. No. 233, § 1, 4-17-12; Ord. No. 283, § 1, 7-5-16)