(A)

The administrator, or his designee, shall have the following powers and duties:

1.

Zoning permit. To issue or deny a zoning permit for the erection, reconstruction, moving, adding to or alteration of any structure, or the establishment of any land use. The administrator shall also have the authority to revoke any zoning permit if violations of the provisions of this chapter occur.

2.

Certificate of zoning compliance. To issue or deny a certificate of zoning compliance certifying construction and use in accordance with this chapter.

3.

Collect fees. To collect any fees required or set forth in this chapter.

4.

Making and keeping records. To make and keep all records required by state law or necessary and appropriate for the administration of this chapter.

5.

Inspection of buildings or land. To inspect any building or land to determine if violations of this chapter have been committed or exist.

6.

Enforcement. To enforce this chapter and take all necessary steps to remedy any condition found in violation of the provisions of this chapter.

7.

Request assistance. To request the assistance of other local and state officials or agencies in the administration and enforcement of this chapter.

8.

Interpretation. To interpret the official zoning map and provisions of this chapter, and offer written opinions on their meaning and applicability.

(B)

The administrator shall have all necessary authority on behalf of the governing body to administer and enforce the zoning ordinance. His authority shall include: (1) ordering in writing the remedying of any condition found in violation of the ordinance; (2) insuring compliance with the ordinance, bringing legal action, including injunction, abatement, or other appropriate action or proceeding subject to appeal pursuant to § 15.2-2311 of the Code of Virginia; and (3) in specific cases, making findings of fact and, with concurrence of the attorney for the governing body, conclusions of law regarding determinations of rights accruing under § 15.2-2307 of the Code of Virginia.

(C)

The administrator may be authorized to grant a maximum of a ten percent, or a maximum of a one foot variance (whichever is less) from any building setback requirement contained in the zoning ordinance if the administrator finds in writing that: (1) the strict application of the ordinance would produce undue hardship; (2) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and (3) the authorization of the variance will not be of substantial detriment to adjacent property and the character of the zoning district will not be changed by the granting of the variance. Prior to the granting of a variance, the administrator shall give, or require the applicant to give, all adjoining property owners written notice of the request for variance, and an opportunity to respond to the request within 21 days of the date of the notice. If any adjoining property owner objects to said request in writing within the time specified above, the request shall be transferred to the Board of Zoning Appeals for decision.

(Ord. of 3-14-05(2))

(A)

The Commission shall have the right to exercise all of the powers and duties authorized by § 15.2, Chapter 22 of the Code of Virginia, as amended.

(B)

Consistent with Chapter 62 of the Charter of the City of Salem, the Commission shall be composed of not less than five nor more than seven members, who shall be appointed by the Council. All of such members shall be residents of the city and freeholders qualified by knowledge and experience to make decisions on questions of community growth and development. The members of the Commission shall serve for staggered terms of four years each.

(C)

The Commission shall develop, adopt and maintain bylaws that govern its operation.

(Ord. of 3-14-05(2))

(A)

A zoning permit shall be required for the erection, construction, reconstruction, moving, adding to, or alteration of any structure, or the establishment of any land use, except as listed below:

1.

Patios.

2.

Fences.

3.

The non-structural re-roof of residential structures

(B)

It shall be the responsibility of the applicant to provide any information necessary for the administrator to determine that the proposed use, building, or structure complies with all provisions of this chapter.

(C)

For any use, building, or structure requiring an approved site plan, no zoning permit shall be issued, until such time as a site plan is submitted, reviewed, and approved in accordance with section 106-400 of this chapter.

(D)

For uses or structures not requiring an approved site plan, the administrator shall determine, in accordance with this chapter, the type of information necessary to review the permit. At a minimum, a concept plan shall be required meeting the standards established by the administrator.

(E)

All zoning permits issued shall be valid for a period of six months, unless the structure, use or activity for which the permit was issued has commenced. The administrator may reissue any expired permit provided the structure, use and or activity complies with all applicable provisions of the ordinance at the time of reissuance.

(F)

The administrator shall have the authority to approve the form and content of zoning permit applications.

(Ord. of 3-14-05(2); Ord. of 6-14-2021(4))

(A)

No building permit for the extension, erection, or alteration of any building or structure shall be issued before an application has been made and a zoning permit has been issued. No new or modified building or structure shall be occupied or used, or any new land use established until a certificate of zoning compliance has been issued by the city.

(Ord. of 3-14-05(2))

(A)

A certificate of zoning compliance shall be required for any of the following:

1.

Occupancy or use of a building that has been hereafter erected, enlarged, or structurally altered.

2.

Change in the use or occupancy of an existing building.

3.

Occupancy or change in the use of vacant land except for agricultural uses not involving structures.

4.

Any change in a nonconforming use, or any alteration of a nonconforming building or structure.

(B)

No such occupancy, use, or change in use shall take place until a certificate of zoning compliance has been issued by the city. Such certificate shall certify that the building or the proposed use, or the use of land complies with the provisions of this chapter.

(C)

If a certificate of zoning compliance is denied by the city, the city shall notify the owner or owners agent of the denial. Said notice shall state the reasons for the denial, and the specific actions required on the part of the owner before the certificate of zoning compliance can be issued.

(Ord. of 3-14-05(2))

(A)

When a building, structure, or property must be occupied or used prior to the completion of all improvements required by this chapter, the city may issue a temporary or partial certificate of zoning compliance for the property, upon the request of the owner or owner's agent. Temporary or partial certificates of zoning compliance shall be valid for a period not to exceed eight months, during which time, all improvements required by this chapter must be made.

(B)

The city shall not issue a temporary or partial certificate of zoning compliance unless:

1.

The site and building is in a safe and useable condition, free from conditions that might endanger the health, safety or welfare of persons using the site.

2.

The owner or authorized agent provides the city a performance guarantee guaranteeing completion of all required improvements. This guarantee shall be payable to the city in an amount determined by the city to be sufficient to complete all required improvements within eight months of the issuance of the temporary or partial certificate of zoning compliance.

3.

The performance guarantee may be in the form of a corporate surety bond, cash, irrevocable letter of credit, or other instrument approved by the city.

4.

The administrator may waive the performance guarantee if the value of the uncompleted improvements is less than $500.00.

5.

The administrator shall have the authority to grant an extension to the temporary or partial certificate of zoning compliance, provided all performance guarantees remain in effect.

(Ord. of 3-14-05(2))

(A)

Administrative review fees for all permits and procedures specified in this chapter shall be established by Council.

(Ord. of 3-14-05(2))

(A)

The administrator shall have the responsibility for enforcing the provisions of this chapter, and may, as necessary, solicit the assistance of other local and state officials and agencies to assist with this enforcement.

(B)

If after a reasonable effort to obtain consent from the owner or tenant to enter a subject structure or property, the zoning administrator may make an affidavit under oath before a magistrate and, if such affidavit establishes probable cause that a zoning ordinance violation has occurred, request that the magistrate grant the zoning administrator an inspection warrant to enable the zoning administrator to enter the subject structure or property for the purpose of determining whether violations of the zoning ordinance exist.

(C)

Any person whether the owner, lessee, principal, agent, employee or otherwise, who violates any provision of this chapter, or permits either by granting permission to another to engage in the violating act or by not prohibiting the violating act shall be notified in writing of observed violations. The administrator shall state, in the written notice, the nature of the violation, the date that the violation was observed, and the remedy or remedies necessary to correct the violation. A reasonable time period will be established for the correction of the violation.

(D)

If the administrator is not able to obtain compliance with these provisions, civil and or criminal procedures may be initiated in accordance with city law and procedures.

(E)

Violations.

1.

It shall be a violation of this chapter, and shall subject the violator to the enforcement remedies provides in this article and by state law, for any of the following to occur:

a.

To engage in any development, use, construction, reconstruction, remodeling, or other activity of any nature upon any land and improvements, without all the certificates, licenses, permits, or other forms of authorization required under this chapter; or

b.

To engage in any development, use, construction, reconstruction, remodeling, or other activity of any nature in any manner which is inconsistent with the certificates, licenses, permits, or other forms of authorization granted for the conduct of such activity; or

c.

To violate, either by commission or omission, any term, condition, or qualification upon a certificate, license, permit, or other form of authorization granted to allow the use, development, or other activity upon any land or improvements; or

d.

To erect, construct, reconstruct, remodel, alter, locate, relocate, maintain, or use any building, structure, or part thereof, or to use any land in violation or contravention of any regulation of this chapter or amendment thereto.

2.

To continue any of the above-stated violations. Each day of a violation shall be a separate offense.

(Ord. of 3-14-05(2); Ord. of 6-14-2021(4))

(A)

Pursuant to Code of Virginia § 15.2-2286(5), any violation of any provision of this chapter shall be a misdemeanor punishable by a fine of not less than $10.00 nor more than $1,000.00.

(Ord. of 3-14-05(2); Ord. of 6-14-2021(4))

(A)

Any violation of the scheduled provisions of this chapter shall be subject to a civil penalty in an amount and timing not to exceed that authorized by Code of Virginia § 15.2-2209, as amended. Council shall establish the amount of the civil penalty.

(B)

The same violation arising from the same operative set of facts may be charged not more than once in a ten-day period, and the total civil penalties from a series of such violations arising from the same set of operative facts shall not exceed $5,000.00.

(C)

The issuance of a civil penalty for a particular violation of the zoning ordinance pursuant to this section shall be in lieu of criminal sanctions except when such violation results in injury to any person or persons.

(D)

The administrator, or the administrator's designee, may issue a civil summons for a scheduled violation. Any person summoned or issued a ticket for a scheduled violation may make an appearance in person or in writing by mail to the city treasurer prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the offence charged. Such persons shall be informed of their right to stand trial and that a signature to an admission of liability will have the same force and effect as a judgment of court.

(E)

If a person charged with a scheduled 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 for by law. A finding of liability shall not be deemed a criminal conviction for any purpose.

(F)

No provision herein shall be construed to allow the imposition of civil penalties for (1) activities related to land development or (2) for violation of any provision of a local ordinance relating to the posting of signs on public property or public rights-of-way.

(Ord. of 3-14-05(2); Ord. of 6-14-2021(4))

(A)

Whenever the public necessity, convenience, general welfare, or good zoning practice require, the City Council may, by ordinance, amend, supplement, or change these regulations, district boundaries, or classifications of property. Any such amendments may be initiated by:

1.

Resolution of the council;

2.

Motion of the commission; or

3.

Petition of the owner, contract purchaser with the owner's written consent, or the owner's agent, of the property which is the subject of the proposed zoning map amendment. Any petition submitted shall be in writing and shall be addressed to council.

4.

Any person may submit suggestions for zoning ordinance text amendments to the administrator. The administrator shall forward these requests to the Commission for their review. The commission shall be under no obligation to schedule a public hearing on any such amendment request, except that the council may direct the commission to hold a public hearing on any text amendment request.

(B)

The administrator shall establish a schedule for the receipt of amendment applications. The administrator shall also establish and maintain the amendment application materials. These application materials shall, at a minimum, include any information the administrator deems necessary for the city staff, Commission and council to adequately evaluate the amendment request. A concept plan shall accompany all map amendment requests. The administrator shall establish minimum standards for concept plans.

(C)

The administrator shall not accept any amendment application for a lot or parcel that does not comply with the minimum lot area, width, or frontage requirements of the requested zoning district. In such situations, the applicant shall first seek a variance from the Board of Zoning Appeals. If a variance is granted, the administrator shall thereafter accept the amendment application for the consideration of the Commission and Council.

(D)

If the Council denies any amendment application submitted for its review, or the application is withdrawn after Council consideration, the city shall not consider substantially the same application for the same property within one year of the Council action. The administrator shall have the authority to determine whether new applications submitted within this one year period are substantially the same. In making any such determination the administrator shall have the authority to consider any items pertaining to the proposed use or development of the site such as, but not limited to, the uses proposed, densities, access, building locations, and overall site design.

(Ord. of 3-14-05(2))

(A)

All proposed amendments to the zoning ordinance shall be referred to the Commission for study and recommendation. The Commission shall study proposals to determine:

1.

Whether the proposed amendment conforms to the general guidelines and policies contained in the city's comprehensive plan.

2.

The relationship of the proposed amendment to the purposes of the general planning program of the city, with appropriate consideration as to whether the change will further the purposes of this chapter and the general welfare of the entire community.

3.

The need and justification for the change.

4.

When pertaining to a change in the district classification of property, the effect of the change, if any, on the property, surrounding property, and on public services and facilities. In addition, the Commission shall consider the appropriateness of the property for the proposed change as related to the purposes set forth at the beginning of each district classification.

(B)

Prior to making any recommendation to the Council on a proposed amendment to the zoning ordinance, the Commission shall advertise and hold a public hearing in accordance with the provisions of § 15.2-2204 of the Code of Virginia, as amended.

(C)

The Commission shall review the proposed amendment and report its findings and recommendations to the Council along with any appropriate explanatory materials within 100 days after the first Commission meeting after the proposed zoning ordinance amendment is referred to the Commission. Failure of the Commission to report to the Council shall be deemed a recommendation of approval. If the Commission does not report within the prescribed time, the Council may act on the amendment without the recommendation of the Commission.

(D)

Any recommendation of the Commission shall be deemed advisory, and shall not be binding on the Council.

(Ord. of 3-14-05(2); Ord. of 6-14-2021(4))

(A)

Before enacting any proposed amendment to the zoning ordinance, the Council shall hold a public hearing as required by § 15.2-2204 [Code of Virginia, with public notice as required by §§ 15.2-2204 and 15.2-2285 of the Code of Virginia, as amended. The Council may hold a joint public hearing with the Commission. After holding this hearing, the Council may make appropriate changes to the proposed amendment; provided however that no land may be zoned to a more intensive use classification than was contained in the public notice without an additional public notice as required by § 15.2-2204 [Code of Virginia].

(B)

The Clerk of Council shall transmit to the administrator official notice of any Council action modifying the zoning ordinance. The administrator shall thereafter have the responsibility to make any necessary and appropriate changes to the zoning ordinance text or map.

(Ord. of 3-14-05(2))

(A)

The city may require that properties proposed for public hearing before the Commission or Board of Zoning Appeals, under the requirements of this chapter, shall be posted with a notice announcing the nature, and the date, time and place of the public hearing. This posting requirement shall be in addition to the public hearing and notice requirements imposed by § 15.2-2204 of the Code of Virginia.

(B)

The city shall prepare the notice of hearing and shall post said notice on the property or properties that are the subject of the hearing. The posting shall be accomplished at least ten days before the date of the proposed public hearing. The administer [administrator] shall determine the number of notices required to meet the intent of this section. All notices posted shall be clearly visible from abutting rights of way.

(C)

The unauthorized removal or damage of the notices prior to the advertised public hearing, due to weather or legitimate vandalism, shall not violate the public notice intent of this section.

(Ord. of 3-14-05(2))

(A)

In accordance with the authority granted to the city per § 15.2-2297 of the Code of Virginia, the owner of property for which a zoning map amendment is requested, may voluntarily proffer in writing reasonable conditions that are in addition to the regulations of the requested zoning district. All proffered conditions must be signed by the owner of the property.

(B)

The city's acceptance of proffered conditions shall be in accordance with the procedures and standards contained in § 15.2-2297 of the Code of Virginia.

(C)

All conditions proffered by the owner shall meet the following standards:

1.

The rezoning itself must give rise for the need for the conditions.

2.

The conditions shall have a reasonable relation to the rezoning.

3.

The conditions shall not include a cash contribution to the locality.

4.

The conditions must not provide for mandatory dedications for public facilities not otherwise provided for in § 15.2-2241 of the Code of Virginia.

5.

The conditions must not require the mandatory creation of a property owner's association under Chapter 26 Title 55 of the Code of Virginia.

6.

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

7.

All conditions proffered shall relate to the physical development or operation of the property.

8.

All such conditions shall be in accordance with the comprehensive plan.

(D)

All such conditions must be submitted to the city, in writing, before the start of the council's public hearing.

(E)

The commission and council shall not be obligated to accept any or all of the conditions proffered by the owner.

(Ord. of 3-14-05(2))

(A)

The administrator shall have the authority on behalf of the Council to administer and enforce conditions accepted as part of any approved zoning map amendment. This authority shall include:

1.

The ordering in writing of the remedy of any non-compliance with such conditions.

2.

The bringing of legal action to insure compliance with such conditions.

(B)

Failure of a property owner to meet all conditions accepted by the Council shall constitute cause to deny approval of a site plan, or deny issuance of a building permit, zoning permit or certificate of zoning compliance, as may be appropriate.

(Ord. of 3-14-05(2))

(A)

The zoning map shall show, by an appropriate symbol, the existence of conditions on those properties for which conditions have been accepted. The administrator shall keep an index of those properties and conditions. The index shall provide for ready access to the ordinance creating the conditions.

(Ord. of 3-14-05(2))

(A)

Any person aggrieved by a decision of the administrator pursuant to the provisions of section 106-522.1 may petition the Council for a review of the decision of the administrator. All such petitions, stating the nature of the grievance, shall be filed with the administrator within 30 days of the date of the decision for which a review is sought.

(Ord. of 3-14-05(2))

(A)

Any request by an applicant to amend conditions that were voluntarily proffered and accepted by the Council shall be considered a new amendment to the zoning ordinance and shall be reviewed pursuant to the provisions of section 106-520.

(Ord. of 3-14-05(2))

(A)

The procedures and standards contained in this section shall apply to all uses specifically permitted as special exceptions in the district regulations found elsewhere in this chapter. These procedures and standards shall also apply for all requests for Use Not Provided For Permits, authorized under the provisions of this chapter.

(B)

Special Exceptions are hereby established in recognition that in addition to uses permitted by right, certain uses may, depending on their scale, design, location and conditions imposed by Council, be compatible with existing and future land uses in the district.

(C)

Use not provided for permits are hereby established in recognition that this chapter may not be sufficiently detailed to list all possible land uses. When a land use is proposed that is not listed in Article II of this chapter, and/or is not a permitted use by right or by special exception in any zoning district contained in this chapter, the Council shall have the authority under the following provisions to consider the scale, design, and location of the non-listed land use and determine its compatibility with existing and future land uses in the district.

(D)

The review and subsequent approval or disapproval of a special exception or a use not provided for permit, shall be considered a legislative act, and shall be governed by the procedures thereof.

(Ord. of 3-14-05(2))

(A)

The administrator shall not accept any special exception application nor any use not provided for permit application for any lot or acreage that does not meet the minimum size, width and/or frontage requirements of the district where the use is proposed. In addition, the administrator shall not accept any special exception application for a lot or acreage that does not meet the minimum size, width and/or frontage requirements of any applicable use and design standards for the use as listed in Article III of this chapter. In such situations, the applicant shall first seek a variance from the Board of Zoning Appeals. If a variance is granted, the administrator shall thereafter accept the special exception or use not provided for permit application for consideration by the Commission and Council.

(B)

No special exception permit, or use not provided for permit shall be issued by the Council unless the Council shall find that in addition to conformity with any standards contained in Article III Use and Design Standards, the proposed special exception or use not provided for, shall conform with the following general standards. These standards shall be met either by the proposal as submitted and thereafter revised by the applicant, or by the proposal as modified or amended as part of the review of the application by the Commission or Council.

1.

The proposal as submitted or modified shall generally conform to the latest comprehensive plan of the City of Salem.

2.

The proposal as submitted or modified shall have a minimum adverse impact on the surrounding neighborhood or community. Adverse impacts shall be evaluated with consideration to items such as, but not limited to, traffic congestion, noise, lights, dust, drainage, water quality, air quality, odor, fumes and vibrations. In considering impacts, consideration shall be given to the timing of the operation, site design, access, screening, and or other matters that might be regulated to mitigate adverse impacts.

(Ord. of 3-14-05(2))

(A)

An application for a special exception permit or use not provided for permit, may be initiated by:

1.

Resolution of the council;

2.

Motion of the commission;

3.

Petition of the owner, owner's, agent, or contract purchaser with the owner's written approval.

(B)

Applicants shall provide at the time of application, information and or data to demonstrate that the proposed use will be in harmony with the purposes of the specific zoning district in which it will be located. The applicant shall also have the responsibility to demonstrate that the proposed use will have minimum adverse impact on adjoining property and the surrounding neighborhood.

(C)

All applications shall show the nature and extent of the proposed use and development. If phased development is envisioned, all phases shall be shown at the time of the original application.

(D)

The administrator shall establish and maintain special exception and use not provided for application materials. At a minimum, these materials shall require the submittal of a concept plan. Concept plans shall be developed to standards established by the administrator.

(Ord. of 3-14-05(2))

(A)

City of Salem staff shall review all applications submitted. This review shall evaluate the proposal against the city's comprehensive plan and any specific or general standards for the use. The staff shall make a report of its findings and transmit the report to the Commission.

(B)

The Commission shall review and make recommendations to the Council concerning the approval or disapproval of any special exception or use not provided for permit. No such recommendation shall be made until after a public hearing is held in accordance with § 15.2-2204 of the Code of Virginia, as amended. Posting of the property announcing the public hearing shall be done in accordance with section 106-520.5 of this chapter.

The Commission shall base it recommendation upon the review of submitted application materials, specific and general criteria contained in this chapter, public comment received at the public hearing, and the information and evaluation of the city staff. In making a recommendation to the Council, the Commission may recommend any conditions necessary to insure that the proposal is compatible with the surrounding neighborhood and community. However, any such conditions shall relate to the design, scale, use or operation of the proposed special exception or use not provided for. Where, warranted, any such conditions may exceed specific standards found elsewhere in this chapter.

(C)

The Council may grant or deny any application for a special exception or use not provided for permit. No such action shall be taken until the Council receives the recommendation of the Commission and a Council public hearing is held in accordance with § 15.2-2204 of the Code of Virginia, as amended.

In approving any special exception or use not provided for permit, the Council, may require and attached any conditions necessary to insure that the proposal is compatible with the surrounding neighborhood and community. However, any such conditions shall relate to the design, scale, use or operation of the proposed special exception or use not provided for. Where, warranted, any such conditions may exceed specific standards found elsewhere in this chapter.

(Ord. of 3-14-05(2))

(A)

The Commission shall make a recommendation and report its findings to the Council within 100 days from the date that the proposed special exception or use not provided for permit application is referred to the Commission. Failure of the Commission to report to the Council within 100 days shall be deemed a recommendation of approval, and the council may act on the application without a recommendation from the Commission.

(Ord. of 3-14-05(2))

(A)

Within the zoning districts established by this chapter, or by future amendments which may be adopted, or by legitimate and legal actions taken by the Council or other governmental agency, there exist lots, parcels, structures, uses of land and structures, and characteristics of site design and/or use which were lawful before this chapter was adopted or amended, but which would be prohibited under the terms of this chapter or future amendment. Such structures uses and characteristics, or any combination thereof, are considered nonconformities, and are hereby declared by the Council to be inconsistent with the character of the districts in which they occur.

(B)

Nonconformities are permitted to remain until removed, discontinued, or changed to conform to the provisions of this chapter. It is the intent of this chapter that the continuance of nonconformities should not be indefinite, and that the nonconforming structures, uses, or characteristics, should gradually be removed.

(C)

Nothing shall be construed to grant conforming status to uses or structures that existed as legal nonconforming uses prior to the adoption of this chapter, or amendment thereto, unless such uses or structures now conform to all applicable provisions of this chapter.

(Ord. of 3-14-05(2))

(A)

Nothing in this chapter shall impair any vested right. Pursuant to § 15.2-2307 of the Code of Virginia, a landowner's rights shall be deemed vested and shall not be affected by the subsequent amendment of the zoning ordinance if all of the following occur:

1.

The landowner obtains or is the beneficiary of a significant affirmative governmental act.

2.

The landowner relies in good faith on a significant affirmative governmental act.

3.

The landowner incurs extensive obligations, or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.

(Ord. of 3-14-05(2))

(A)

Where at the effective date of this chapter or amendments thereto, lawful use exists of buildings, structures, or land, individually or in combination, which use is no longer permissible under the terms of this chapter as enacted or amended, such use may be continued provided:

1.

The use is not discontinued for more than two years.

2.

The use is not converted or replaced, in whole or in part by a use permitted in the district regulations.

3.

The building or structures containing the nonconforming use are maintained in their then structural condition.

If buildings or structures containing a nonconforming use are enlarged, extended, reconstructed, or structurally altered, or if a nonconforming use of land is enlarged, or expanded in area, the use of the building, structure or land shall legally conform to the regulations of the zoning district in which they are located.

(B)

No nonconforming use shall be enlarged, intensified, or increased, nor intensified to occupy a larger structure or building, than was occupied at the effective date of this chapter.

(C)

No nonconforming use shall be moved in whole or in part to any portion of the lot or acreage unoccupied by such use at the time of the adoption or subsequent amendment of this chapter.

(D)

No building or structure conforming to the requirements of this chapter shall be erected in connection with the nonconforming use of land.

(E)

Where nonconforming use status applies to a building or structure, removal of the building or structure, or damage from any cause to an extent of more than 50 percent of replacement cost at the time of damage, shall eliminate the nonconforming status of the building or structure or land.

(Ord. of 3-14-05(2))

(A)

Where a lawful building or structure exists at the time of the adoption or amendment of this chapter, which could not be built under the terms of this chapter, by reasons of restrictions on area, bulk, lot coverage, height, yards, or other characteristics of the building or structure, or its location on a lot, such building may be continued so long as it remains otherwise lawful provided:

1.

No building or structure shall be enlarged in any way which increases or extends its nonconformity.

2.

Any building or structure which is damaged by any means to an extent of more than 50 percent of its replacement cost at the time of damage, shall be reconstructed only in conformity with the provisions of this chapter.

3.

Any building or structure which is moved for any reason, for any distance, shall thereafter conform to the regulations of the district in which it is located after it is moved.

(B)

Any landowner or homeowner may remove a valid nonconforming manufactured home from a manufactured home park and replace that home with another comparable manufactured home that meets the current HUD manufactured housing code. A single section home may be replaced with a single section home and a multi-section home may replace a multi-section home.

(C)

The owner of any valid nonconforming manufactured home, either single or multi-section not located in a manufactured home park may replace that home with a newer manufactured home, either single or multi-section, that meets the current HUD manufactured home code. Any such replacement home shall retain the valid nonconforming status of the prior home.

(Ord. of 3-14-05(2))

(A)

If a zoning permit is requested for any type of modification to an existing structure or site, no legal nonconforming site design planned, approved, and constructed prior to the adoption of this chapter shall be required to comply in full with the provisions of this chapter. Only those site improvements directly related to, or affected by the modified use, structure or activity, shall be required to comply in full with the provisions of this chapter.

(Ord. of 3-14-05(2))

(A)

The Salem Board of Zoning Appeals shall consist of five members, and up to three alternates who shall be appointed by the Circuit Court. Composition of the BZA shall be in accordance with § 15.2-2308 of the Code of Virginia, as amended.

(Ord. of 3-14-05(2))

(A)

The BZA shall have the power and duty to hear and decide appeals from any written order, requirement, decision, or determination made by any administrative officer in the administration or enforcement of this chapter. No such appeal shall be heard except after notice and hearing as provided by Code of Virginia, § 15.2-2204, as amended.

(B)

Ex parte communications, proceedings.

1.

The non-legal staff of the governing body may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. The applicant, landowner or his agent or attorney may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. If any ex parte discussion of facts or law in fact occurs, the party engaging in such communication shall inform the other party as soon as practicable and advise the other party of the substance of such communication. For purposes of this section, regardless of whether all parties participate, ex parte communications shall not include (i) discussions as part of a public meeting or (ii) discussions prior to a public meeting to which staff of the governing body, the applicant, landowner or his agent or attorney are all invited.

2.

Any materials relating to a particular case, including a staff recommendation or report furnished to a member of the board, shall be made available without cost to such applicant, appellant or other aggrieved person, under Code of Virginia, § 15.2-2314, as amended, as soon as practicable thereafter, but in no event more than three business days of providing such materials to a member of the board. If the applicant, appellant or other aggrieved person, under Code of Virginia, § 15.2-2314, as amended, requests additional documents or materials be provided by the locality other than those materials provided to the board, such request shall be made pursuant to Code of Virginia (1950), § 2.2-3704, as amended. Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to Code of Virginia (1950), § 2.2-3707(F), as amended.

3.

For the purposes of this section, "non-legal staff of the governing body" means any staff who is not in the office of the city attorney for the City of Salem, or for the board, or who is appointed by special law or pursuant to Code of Virginia (1950), § 15.2-1542, as amended. Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff of any attorney where such communication is protected by the attorney-client privilege or other similar privilege or protection of confidentiality.

(C)

Notwithstanding any other provision of law, general or special the BZA shall have the power and duty to grant upon appeal or original application in specific cases a variance, as defined in Code of Virginia (1950), § 15.2-2201, as amended, provided that 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 (1950), § 15.2-2201, as amended, and the criteria set out in this section.

Notwithstanding any other provision of law, general or special, a variance shall be granted if the evidence shows that the strict application of the terms of the ordinance would unreasonably restrict the utilization of the property; or that granting the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the ordinance. No such variance shall be granted unless the spirit of the chapter shall be observed and substantial justice done. To legally grant a variance, the BZA must be presented evidence and make a finding that:

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 practicable 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.

The relief or remedy sought by the variance application is not available through a special exception process or the process for modification of a zoning ordinance at the time of the filing of the variance application.

No variance request shall be evaluated by the BZA until after notice and hearing as provided by Code of Virginia, § 15.2-2204, as amended. In addition, posting of the property shall be required as provided for in section 106-520.5 of this chapter.

In granting a variance, the BZA 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.

(D)

The BZA shall have the power and duty to hear and decide applications for interpretation of the official zoning map where the administrator believes there is uncertainty as to the location of a district boundary. No such determination shall be made except after notice and hearing as provided by § 15.2-2204 of the Code of Virginia, as amended. Any property owner affected by a determination of the location of the boundary must be notified by first class mail prior to any such determination. After notice and hearing the BZA may interpret the map in such a way to carry out the intent and purpose of this chapter, however the BZA shall not have the power to change substantially the locations of the district boundaries as established by this chapter. This authority of the BZA to determine the location of district boundaries shall not be construed as the power to rezone property.

(Ord. of 3-14-05(2); Ord. of 1-23-2017(2))

(A)

Applications for variances may be made by any property owner, tenant, government official, department, or board or bureau of the city. All applications shall be submitted to the administrator in accordance with rules adopted by the BZA. All applications and accompanying maps, plans or other information shall be transmitted promptly to the secretary of the BZA who shall place the application on the agenda to be acted upon by the BZA, within 90 days of the filing of the application. No such application shall be heard except after notice and hearing as provided by § 15.2-2204 of the Code of Virginia, as amended. The administrator may, and at the direction of the Commission shall, transmit notice of the variance application to the Commission, which may send a recommendation to the BZA, or appear as a party at the hearing.

(Ord. of 3-14-05(2))

(A)

Appeals to the BZA may be taken by any person aggrieved or by any officer, department, board, or bureau of the city affected by any decision of the administrator, or from any order, requirement, decision, or determination made by any other administrative officer in the administration or enforcement of this chapter. Appeals must be made within 30 days after the entry of the decision appealed from by filing with the administrator and with the BZA, a notice of appeal, specifying the grounds thereof. The administrator shall forthwith transmit to the BZA all of the papers constituting the record upon which the action appealed from was taken. An appeal shall stay all proceedings in furtherance of the action appealed from unless the administrator certifies to the BZA that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. In such cases, proceedings shall not be stayed unless a restraining order is granted by the BZA, or by a court of record, on application and on notice to the administrator and for good cause shown.

(Ord. of 3-14-05(2))

(A)

The BZA shall fix a reasonable time for the hearing of an appeal, give public notice thereof, as well as due notice to all parties of interest, and decide the same within 90 days of the filing of the appeal. In exercising its power, the BZA may reverse or affirm, wholly or partly, or may modify an order, requirement, decision, or determination appealed from.

(B)

The concurring vote of the majority of the BZA shall be necessary to reverse any order, decision, requirement, or determination of an administrative officer, or to decide in favor of the applicant on any matter upon which the BZA is required to pass under the terms of this chapter, or to effect any variance from this chapter.

(C)

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

(Ord. of 3-14-05(2))

(A)

In accordance with the provisions of Code of Virginia (1950), § 15.2-2314, as amended, any person or persons jointly or separately aggrieved by any decision of the BZA, or any aggrieved taxpayer or any officer, department, board or bureau of the city, may file with the circuit court of the city a petition that shall be styled "In Re: date Decision of the Board of Zoning Appeals of the City of Salem, Virginia" specifying the grounds on which aggrieved. This petition must be filed within 30 days of the BZA's decision.

(B)

Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the BZA and shall prescribe therein the time within which a return thereto must be made and served upon the secretary of the BZA or the chairman of the BZA, 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 BZA and on due cause shown, grant a restraining order.

(C)

The BZA 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 such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds appealed from and shall be verified.

(D)

Any review of a decision of the BZA shall not be considered an action against the BZA and the BZA shall not be a party to the proceedings; however, the BZA shall participate in the proceedings to the extent required by this section. The governing body, the landowner, and the applicant before the BZA shall be necessary parties to the proceedings in the circuit court. The court may permit intervention by any other person or persons jointly or severally aggrieved by any decision of the BZA. 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 BZA to the circuit court of an order, requirement, decision or determination of the zoning administrator in the administration or enforcement of any ordinance or provision of state law, or any modification of zoning requirements pursuant to state law, the findings and conclusions of the BZA on questions of fact 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 BZA, that the BZA erred in its decision. Any party may introduce evidence in the proceedings in the court. The court shall hear any arguments or questions of law de novo.

In the case of an appeal by a person of any decision of the BZA that denied or granted an application for a variance, the decision of the BZA shall be presumed to be correct. The petitioner may rebut that presumption by proving by a preponderance of the evidence, including the record before the BZA, that the BZA erred in its decision.

(F)

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

(Ord. of 3-14-05(2); Ord. of 1-23-2017(2))