The Board of Zoning Appeals is hereby established which may be referred to in this Article as the "Board" or "Board of Zoning Appeals." The Board shall have jurisdiction within the boundary limits of the County of Smyth, and it shall consist of seven primary members and three alternates, all of which must be residents of the County, appointed by the Circuit Court of the County. Members of the Board shall hold no other public office in the County except that one may be a member of the Planning Commission.

7-1.1. Terms of Office of Board Members, Vacancies, Removals. The members of the Board shall serve for a five-year term, except that original appointments shall be made for such terms that the term of at least one member shall expire each year. The secretary of the Board shall notify the court at least 30 days in advance of the expiration of any term of office, and shall also notify the court promptly if any vacancy occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves. A member whose term expires shall continue to serve until his successor is appointed and qualifies. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court that appointed him, after a hearing held after at least 15 days' notice.

7-1.2. Staff of Board and Compensation of Board Members. Within the limits of funds appropriated by the County Board of Supervisors, the Board may employ or contract for legal counsel, consultants and other technical and clerical services. Members of the Board may receive such compensation as may be authorized by the Board of Supervisors.

7-1.3. Powers of the Board.

(a)

Hear and decide appeals from any order, requirement, decision or determination made by the Zoning Administrator or an Administrative Officer in carrying out the administration or enforcement of the ordinance;

(b)

Hear and act upon application for variances in accordance with this Article to alleviate hardships by virtue of the inability of the land owner to comply with the provisions of this Ordinance by reason of unique shape, topography or physical features of the lot;

(c)

Hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary; in accordance with the provisions of Section 15.2-2309(4) of the Code of Virginia;

(d)

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 governing body;

(e)

Rules of Interpretation of District Boundaries: Where uncertainty exists with respect to the boundaries of districts as shown on the Official Zoning Map, the following rules shall apply:

(1)

Boundaries indicated as approximately following the centerlines of roads, streets, or alleys shall be interpreted as following such centerlines.

(2)

Boundaries indicated as approximately following platted lot lines shall be interpreted as following such lot lines and the extension of lot lines in the event that the boundary extends across un-platted tracts.

(3)

Boundaries indicated as approximately following corporate limits shall be interpreted as following such corporate limits

(4)

Boundaries indicated as approximately following the centerlines of streams, rivers, lakes, or other bodies of water shall be interpreted as following such centerlines, and in the event of a change in the course of the body of water, shall be interpreted as moving with the actual centerline.

(5)

Where natural or manmade features actually existing differ with those shown on the Official Zoning Map, the Board of Zoning Appeals shall determine the district boundary.

(6)

Where a district boundary line divides a lot that was in single ownership at the time of passage of this Ordinance, the Board of Zoning Appeals may permit an extension of the regulations for either portion of the lot into the remaining portion of the lot, not to exceed 50 feet beyond the district line.

(7)

If it is necessary to determine a distance which is not indicated on the Official Zoning Map, the scale of the map may be used for that purpose.

7-1.4. Election of Officers. The Board shall elect from its members its own chairman, vice chairman and secretary who shall serve for one year and may upon election serve succeeding terms.

7-1.5. Stay of Proceedings. An appeal shall stay all proceedings related to the action appealed from, unless the Zoning Administrator certifies to the Board, after such notice of appeal shall have been filed, that by reason of facts stated in the certificate such stay would cause imminent threat to life or property. In such instance the proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by a court of record on application and on notice to the Zoning Administrator and for good cause shown.

7-1.6. Rules and Proceedings of the Board. The Board shall also adopt rules for the conduct of its meetings. Such rules shall at the minimum require that:

(a)

The presence of a majority of seven members of the Board shall constitute a quorum;

(b)

No action shall be taken by the Board on any case until after a public hearing and notice thereof shall be published and mailed in accordance with Section 15.2-2204 Code of Virginia, 1950, as amended;

(c)

Appeals to the Board shall be taken within 30 days after the decision appealed from by filing with the Zoning Administrator, a notice of appeal specifying the grounds of the appeal. The Zoning Administrator shall then transmit to the Board all the papers constituting the record upon which the action was taken;

(d)

The Board shall fix a reasonable time for hearing the application or appeal, give public notice thereof as well as notify interested parties, and decide the same within 60 days;

(e)

The Board may reverse or affirm, wholly or partly, or may modify an order, requirement, decision or determination appealed from. The concurring vote of a majority of the membership of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under the ordinance or to effect any variances from the ordinance;

(f)

The Board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the County Administrator and shall be public records. The chairman of the Board, or in his absence, the vice chairman, may administer oaths and compel the attendance of witnesses;

(g)

The Board may call upon any other officer or agency of the County for information in the performance of its duties; and it shall be the duty of such other agencies to render the information to the Board as may be reasonably required;

(h)

In decisions on variances, the Board shall indicate the specific section of this Ordinance under which the variance is being considered, and shall state its findings beyond such generalities as "in the interest of public health, safety and general welfare." The Board shall state clearly the specific conditions imposed in granting the variance;

(i)

At the public hearing of the case before the Board, the appellant shall appear on his own behalf or be represented by counsel or agent. The appellant's side of the case shall be heard first and those in objection shall follow. To maintain orderly procedure, each side shall proceed without interruption from the other; and

(j)

The Smyth County Planning Commission shall be permitted to submit an advisory opinion on any matter before the Board, and such opinion shall be made part of the record of the public hearing.

(Ord. of 10-12-2001)

7-2.1. Application for Zoning Variance. The application for a zoning variance as defined in Article X may be made by any property owner, agent, or legal counsel of the owner, government official, department, board, or bureau. The application shall be made to the Zoning Administrator in accordance with rules adopted by the Board of Zoning Appeals. The application and accompanying maps, plans, or other information shall be transmitted promptly to the Board. The required information for a variance application shall be consistent with the requirements for a zoning permit application in Section 8-3.3, and shall also include the applicant's reason for requesting a variance and shall clearly state what specific provision or provisions of the ordinance to which the applicant is requesting a variance. The variance application shall also require an oath regarding property interest of local officials as allowed in Section 15.2-2287 of the Code of Virginia, and complete disclosure of ownership as allowed in Section 15.2-2289.

7-2.2. Notice to Affected Property Owners. Notice to affected property owners and public agencies including the Smyth County Planning Commission and Board of Supervisors shall be given in accordance with notice and hearing procedures of Section 15.2-2204 of Code of Virginia, 1950, amended.

7-2.3. Standards for Variance: The Board may authorize upon appeal or original application in specific cases such variance as defined in § 15.2-2201 from the terms of the ordinance as will not be contrary to the public interest, when, owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship; provided that the spirit of the ordinance shall be observed and substantial justice done.

(a)

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of the piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the utilization of the property or where the Board is satisfied, upon the evidence heard by it, that the granting of the variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance.

(b)

No such variance shall be authorized by the Board unless it finds:

(1)

That the strict application of the ordinance would produce undue hardship;

(2)

That the hardship is not shared generally by other properties in the same zoning district and the same vicinity;

(3)

That the authorization of the variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance; and

(4)

No variance shall be authorized unless the Board finds that 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.

(c)

In authorizing 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.

7-2.4. Nonconforming Does Not Constitute Grounds for Granting a Variance. No permitted or nonconforming use of neighboring lands, structures or buildings in the same district, or in other districts shall be considered grounds for the issuance of a variance.

7-2.5. Prohibition of Use Variances. Under no circumstances shall the Board of Zoning Appeals grant a variance to allow a use not permitted under the terms of this Ordinance in the district involved, or any use expressly or by implication prohibited by the terms of this Ordinance in said district.

7-2.6. Conditions and Restrictions by the Board. The Board may impose such conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the provisions set out in Section 7.2-3 to reduce or minimize the injurious effect of such variance upon surrounding property and to better carry out the general intent of this Ordinance. The Board may establish expiration dates as a condition or as a part of the variance. The Board may require a guarantee or bond to insure that the conditions imposed are being and will continue to be complied with.

(Ord. of 10-12-2001)

Any person, including any agency, office or department of the County government, aggrieved by a decision of the Board of Zoning Appeals, including on a variance application, may appeal any decision of the Board within 30 days of the Board's decision to the Circuit Court of the County as provided for in Section 15.2-2314 of the Code of Virginia, 1950, as amended.

(Ord. of 10-12-2001)