Saint Albans City Zoning Code
ARTICLE 1317
Zoning Board of Adjustment
1317.01 ZONING BOARD OF ADJUSTMENT; CREATION; POWERS AND DUTIES.
(a) A Zoning Board of Adjustment is hereby established with membership and appointment provided in accordance with Article 8, Chapter 8A of the West Virginia Code.
(b) This Section shall apply to the City of St. Albans Zoning Ordinance.
(c) Creation; Appointment; Term of Office; Vacancies; Membership; and Removal of Members. The Zoning Board of Adjustment, consisting of five (5) members, heretofore created under the prior City of St. Albans Zoning Ordinance adopted (Month, Day and Year) is hereby continued in existence as the Zoning Board of Adjustment under this Ordinance. The appointment of members, their terms of office, succession, removal, filling of vacancies, membership, and alternate membership, shall be as provided in Article 8, Chapter 8A of the West Virginia Code.
(d) General Powers and Duties. The Zoning Board of Adjustment has the following powers and duties:
(1) Hear, review and determine Appeals from an order, requirement, decision or determination made by the Zoning Administrator under the City of St. Albans Zoning Ordinance or rule or regulation adopted pursuant thereto;
(2) Hear requests for, and decide whether to grant exceptions to the rules and regulations applicable to a Zoning District, but only in the classes of cases or in particular situations as specified in this Ordinance;
(3) Hear requests for, and decide whether to issue, Special Use Permits authorizing Special Exception Uses provided in this Zoning Ordinance for the Zoning District at issue;
(4) Hear requests for, and decide whether to grant, Variances 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 Zoning Administrator, 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 and requests for Variances and Special Exception 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 Ordinance, and Article 8, Chapter 8A of the West Virginia Code;
(7) Keep minutes of its proceedings;
(8) Keep an accurate and complete audio record of all the Board's proceedings and official actions. The audio record shall be kept in a safe manner and be accessible within twenty-four (24) hours of a written request for a period of three (3) years; provided that, executive sessions of the Zoning Board of Adjustment conducted for the purpose of deliberation incident to the quasi-judicial function of the Board and/or otherwise conducted in compliance with the Open Governmental Proceedings Act as codified in Article 9A, Chapter 6 of the West Virginia Code need not be audio recorded;
(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 constitute public record.
(e) Organization; Meetings; Authority to Administer Oaths and Compel Attendance of Witnesses; Technical Assistance; Open Meetings. The Board shall be organized, hold meetings and conduct business in accordance with the provisions of this Ordinance and Article 8, Chapter 8A of the West Virginia Code. Meetings of the Board shall be held at least quarterly, and more frequently as the Board may determine or at the written request of the chairman or two (2) or more members. The chairman, or in his absence, the acting chairman, may administer oaths and compel the attendance of witnesses. For assistance, in reaching decisions relative to Appeals, Special Exception Uses, or Variances, the Board may request testimony at its hearings for purposes of securing technical aid or factual evidence from the Mayor, City Council, or any City Department. All meetings of the Board shall be open to the public, subject to the right of the Board to adjourn into executive session for deliberation in the performance of its quasi-judicial functions and for such other purposes as may be proper under state law.
(f) Appeals to the Board. Any order, requirement, decision, or determination made by the Zoning Administrator under this Ordinance or any rule or regulation adopted thereunder, may be appealed to the Zoning Board of Adjustment within thirty (30) days of the original order, requirement, decision, or determination against which the Appeal is made. An Appeal shall be filed on forms established by the Zoning Board of Adjustment, specify the grounds of Appeal, and otherwise be in accord with the Rules of the Zoning Board of Adjustment.
(g) Three (3) members of the Board must be present to constitute a quorum. A concurring vote from three (3) members shall constitute an official action.
(Ord. 2023-02. Passed 4-17-23.)
1317.02 HEARINGS BY THE BOARD; PROCEDURES.
(a) Hearing - Action Required after Receipt of Application or Appeal. Following receipt by the Zoning Board of Adjustment of a complete application or Appeal, the Board shall:
(1) Within ten (10) days of receipt of a complete application or Appeal, set a time for hearing of the application or Appeal, and give notice thereof to the applicant or appellant. The hearing shall be held no later than forty-five (45) days from the date of receipt of the complete application or Appeal. Applicants and appellants may petition for postponement or change of said dates for good cause shown in accord with the Rules of the Board of Zoning Appeals;
(2) At least fifteen (15) days prior to the date set for the hearing on the application or Appeal, publish a notice of the date, time and place of the hearing on the application or Appeal as a Class I legal advertisement in compliance with the provisions of West Virginia Code Chapter 59-3-1 et seq., and provide written notice thereof to the interested parties. The publication area shall be the area covered in the application or Appeal. For purposes of this provision, "interested parties" shall mean Landowners of Adjacent Property. The applicant or appellant shall make a good-faith effort to provide the Zoning Administrator with a current list containing the accurate names and mailing addresses of all interested parties;
(b) Provide a hearing notice to the Zoning Administrator for posting upon the property upon which the application or Appeal is concerned. The notice shall be posted conspicuously at least fifteen (15) days before the date of the hearing by the applicant;
(c) Direct the Zoning Administrator to provide due notice of the hearing to all adjacent and confronting landowners of the subject property, which shall be deemed to include landowners whose property is separated from the subject property only by a street or alley. Adjacent Property owners are identified as properties within 100 feet of the proposed development or activity. Such notice shall be given at least fifteen (15) days prior to such hearing and shall be given by certified mail. The failure of any party to actually receive such notice shall not invalidate any subsequent action taken; and
(d) Visit the specific property in question prior to or after the hearing in order to make proper determination of all applicable facts, but only if the Board determines in its discretion, upon request or upon the Board's own motion, that a site visit is beneficial.
(e) Hearing - Holding of Hearing; Appearance at Hearing. The Board, following such action above, shall hold such hearing. At the hearing, any party may appear and be heard in person or by agent or attorney, subject to the rules of the Board, and the prerogative of the Board to determine the standing of any Person to pursue an application or Appeal that has been filed.
(f) Hearing Postponement Procedures and Requirements.
(1) Request for postponement of a scheduled hearing shall be filed in writing with the Board not less than ten (10) days prior to the date of the hearing, and shall be accompanied by a sum of money sufficient to pay the cost of publishing the postponement, certified mail notice to all adjacent and confronting landowners of the subject property, and the rescheduled hearing as a Class I legal advertisement in compliance with the provisions of West Virginia Code Chapter 59-3-1 et seq. The granting of such requests shall be at the discretion of the Chairman of the Board.
(2) Requests for postponement filed less than (10) days prior to the date of a scheduled hearing, shall, in addition to the other requirements set forth in subsection (a) above, including the sum of money sufficient to pay the cost of advertising the postponement and the rescheduled hearing, be supported by an affidavit or declaration of the party making the request or of some other credible person specifying that the scheduled hearing date will impose an extreme hardship or other good cause for postponement. The granting of such request shall be at the discretion of the Board.
(3) No more than three (3) postponements shall be granted within any period of ninety (90) days.
(g) Hearing Continuance Procedures. The Board may continue a hearing at another time and/or date once such hearing has been started; however, the Board shall announce the date and hour of continuance of such hearing while in session. Furthermore, the chairman, or in his absence, the acting chairman may call for a continuance if a quorum is not in place for the meeting. The date and hour shall be agreed to by all parties and announced while in session.
(h) Staying of Work on Premises When Appeal Taken; Exception. When an Appeal has been taken and filed with the Zoning Board of Adjustment, all proceedings and work on the premises in question shall be stayed unless the official or board from whom or which the Appeal was taken shall certify to the Zoning Board of Adjustment that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. If such certificate be filed, proceedings or work on the premises shall not be stayed except by order of the Circuit Court of Kanawha County. Such stay shall not affect further administrative proceedings or engineering or architectural work that does not disturb the real property beyond incidental disturbances necessary to complete engineering work (such as surveying, tests, or core drilling).
(i) Hearings - Decision by the Board; Appeal from Decision by the Board. The Board shall render a written decision containing findings of fact and conclusions of law within thirty (30) days after completion of the hearings. The Board may announce its decision at the conclusion of the public hearing and authorize the chairman to execute the written decision once prepared, or it may defer its decision and reconvene within thirty (30) days to further deliberate, vote, and render its written decision. Any Person or Persons aggrieved by any decision of the Zoning Board of Adjustment may seek review by certiorari of the same by the Circuit Court of Kanawha County pursuant and subject to Article 9, Chapter 8A of the West Virginia Code by petition filed within thirty (30) days after the filing of the Board's written decision. Nothing herein shall be deemed to limit the right of any Person to seek review by certiorari by said Court pursuant to said Article 9 without first appealing to the Zoning Board of Adjustment.
(j) Disapproval of Application. If an application or Appeal is denied by the Zoning Board of Adjustment, no further action on another application for substantially the same proposal on the same premises shall be taken until after twelve (12) months from the date of such denial.
(k) Fees. A filing fee in the amount of ($0.00) shall accompany each application for an Appeal to the Board.
(Ord. 2023-02. Passed 4-17-23.)
1317.03 SPECIAL EXCEPTION USES AND VARIANCES.
(a) Special Exception Uses. Special Exception Uses are Uses that are conditionally permitted in a particular Zoning District. A Special Exception Use may be commenced and carried on only after review by the Zoning Board of Adjustment and its issuance of a Special Use Permit. The Zoning Board of Adjustment shall consider a request for a Special Use Permit if the requested Use is expressly designated as a Special Exception Use in this Ordinance or interpreted and classified as such by the Zoning Administrator, for the Zoning District in which the subject property is located. The Zoning Board of Adjustment shall issue a Special Use Permit (granting the special exception) if the required findings are made or deny issuance of a permit if all required findings cannot be made. The Zoning Board of Adjustment may attach reasonable conditions to the issuance of a Special Use Permit to ensure the Special Exception Use's compatibility with other Uses permitted in the Zoning District. If any conditions required or imposed as part of a Special Use Permit are not maintained or carried out or cease to exist, the Board shall revoke the Special Use Permit and the Use shall thereafter be in violation of this Ordinance.
(b) If the Board cannot make all of the required findings, no Special Use Permit shall be issued. If circumstances change sufficiently that the necessary findings might be met in the future, the Board may rehear a similar application.
(c) A Special Use Permit shall be valid for two (2) years in the event that the use is not acted upon, or a Subdivision and/or Land Development Plan has not received approval.
(d) Special Use Permit Procedures.
(1) A written application for a Special Use Permit shall be submitted to the Zoning Board of Adjustment and Zoning Administrator, which application shall specify the Special Exception Use sought and include all materials required for a Zoning Permit. The administrative staff shall review the application and file a written report to the Zoning Board of Adjustment before the hearing.
(2) The Board shall set and hold a public hearing. In order to issue a Special Use Permit, the Board must make the following written findings regarding the Special Exception Use sought:
A. The Use will not materially endanger the public health or safety or constitute a public nuisance if located where proposed and developed according to the plans and information submitted and approved;
B. The Use will not substantially diminish the value of Adjacent Property unless the Use is a public necessity; and
C. The location and character of the Use, if developed according to the plans and information approved, will be in harmony with proximate land Uses, and consistent with the purposes of the Zoning District.
D. If the Board makes the above required findings, a Special Use Permit shall be issued to permit the requested Use, subject however, to any condition stipulated by this Ordinance or determined by the Board to be necessary to ensure that the Use remains compatible with other Uses permitted in the Zoning District and with Adjacent Properties. No Special Use Permit may grant Variances from the requirements of this Ordinance. A Special Use Permit serves as the Zoning Permit for the subject Use and property.
(e) Conditions. The Zoning Board of Adjustment, in issuing Special Use Permits, may attach conditions considered necessary to protect the public welfare and the purposes listed above, including conditions which are more restrictive than those established for other Uses in the same Zoning District. These conditions shall be enforceable by the Zoning Administrator and failure to comply with such conditions shall constitute a violation of this Ordinance.
(f) Sketch Plan Approval. Any Sketch Plan presented in support of an application for a Special Use Permit shall become an official part of the record for said matter. Issuance of a Special Use Permit will bind the Use in accordance with that reflected in the submitted Sketch Plan. Therefore, should a change in the Sketch Plan be required as part of the approval of the Use, the applicant shall revise the Sketch Plan prior to the issuance of the Special Use Permit. Any subsequent change to the Special Use aspects having an effect on the originally approved Sketch Plan shall require the obtainment of another Zoning Permit or Special Use Permit, as the case may be.
(g) Variance and Exception Procedures.
(1) A written application for a Variance to the Zoning Ordinance shall be submitted to the Zoning Board of Adjustment and Zoning Administrator, which application shall specify the standard or requirement from which a Variance is sought. The administrative staff shall review the application and file a written report with the Board before the hearing.
(2) The Board shall set and hold a public hearing.
(3) The Zoning Board of Adjustment shall grant the Variance sought if it finds that the Variance:
A. Will not adversely affect the public health, safety or welfare, or the rights of Adjacent Property Owners or residents;
B. Arises from special conditions or attributes which pertain to the property for which a Variance is sought and which were not created by the Person seeking the Variance;
C. Would eliminate an Unnecessary Hardship and permit a reasonable Use of the land; and
D. Will allow the intent of the Zoning Ordinance to be observed and substantial justice done.
(4) If the Board grants a Variance, its actions will be accompanied by its reasons for making the required findings and by its certification that the Variance is the minimum Variance which will make possible the reasonable Use of land, Buildings, or Structures.
(Ord. 2023-02. Passed 4-17-23.)
1317.04 TEMPORARY PERMITS AND INTERPRETATION OF ZONING MAP.
(a) The Board may allow the substitution of one (1) nonconforming use for another non- conforming use which existed at the time of enactment of this ordinance, provided that no structural alterations are allowed except those required by law or ordinance and; provided that in any "R" District no change shall be permitted to any use prohibited by a "C-1" District and that in any "C" District no change shall be permitted to any use prohibited in a "I-1" District.
(b) The Board may allow the temporary use of a building or premises in any District for a purpose or use that does not conform to the regulations prescribed by this Ordinance, provided that such use be of a true temporary nature and does not involve the erection of substantial buildings. Such permit shall be granted in the form of a temporary and revocable permit for not more than a twelve (12) month period, subject to such conditions as will safeguard the public health, safety, convenience, and general welfare.
(c) The temporary use of a building or premises in undeveloped sections for a purpose that does not conform to the regulations prescribed by this Ordinance, provided that such structure or use is of a true temporary nature, is promotive of or incidental to the development of such undeveloped sections and does not involve the erection of substantial buildings.
(d) The Board may interpret the zoning map for involving disputes as to the true boundary of a Zoning District and the true designation(s) of any Zoning District.
(e) The Board may exercise all other powers and duties as may be granted by this Ordinance. (Ord. 2023-02. Passed 4-17-23.)