(a)

A board of zoning appeals consisting of seven (7) members who are residents of the county shall be appointed by the circuit court of the county. Each member shall, upon appointment or reappointment, before entering upon his or her duties, take and subscribe the general oath prescribed by Code of Virginia, § 49-1. The board shall serve without pay other than for traveling expenses, and members shall be removable for cause upon written charges and after public hearing. Appointments for vacancies occurring otherwise than by expiration of term shall in all cases be for the unexpired term. At the request of the board of supervisors, the circuit court may appoint not more than three (3) alternates to the board of zoning appeals. The qualifications, terms and compensation of alternate members shall be the same as those of regular members. A regular member when he knows he will be absent from or will have to abstain from any application at a meeting shall notify the chairman twenty-four (24) hours prior to the meeting of such fact. The chairman shall select an alternate to serve in the absent or abstaining member's place and the records of the board shall so note. Such alternate member may vote on any application in which a regular member abstains.

(b)

The term of office shall be for five (5) years. Members may be reappointed to succeed themselves. Members of the board shall hold no other public office in the locality except that one may be a member of the planning commission.

(c)

Any member of the board shall be disqualified to act upon a matter before the board with respect to property in which the member has an interest.

(d)

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

(Ord. of 6-18-90, § 19-16.1; Ord. of 9-26-11)

The board of zoning appeals shall have the following powers and duties:

(1)

To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of Code of Virginia, § 15.1-486 et seq. or this chapter.

(2)

To authorize upon appeal or original application in specific cases such variance from the terms of this chapter 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 this chapter shall be observed and substantial justice done as follows:

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 on October 1, 1968, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property, or of the condition, situation or development of property immediately adjacent thereto, the strict application of the terms of this chapter 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 such 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 this chapter.

b.

No such variance shall be authorized by the board unless it finds (i) that the strict application of this chapter would produce undue hardship; (ii) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and (iii) that the authorization of such 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.

c.

No such variance shall be authorized except after notice and hearing as required by Code of Virginia, § 15.1-431.

d.

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 this chapter.

e.

In authorizing a variance the board may impose such conditions regarding the location, character and other features of the proposed structure for 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.

(3)

To hear and decide appeals from the decision of the zoning administrator. No such appeal shall be heard except after notice and hearing as provided by Code of Virginia, § 15.1-431.

(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 any such question, and after public hearing with notice as required by Code of Virginia, § 15.1-431, 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. 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 the power to rezone property.

(6)

To hear and decide on applications for special exceptions authorized under this chapter as follows:

a.

Special exceptions. In order to provide for adjustments in the relative locations of uses and buildings of the same or different classifications, to promote the usefulness of these regulations as instruments for fact finding, interpretation, application and adjustment, and to supply the necessary elasticity to their efficient operation, special use exceptions and, limited as to location and especially in locations described in the district regulations and in this article, special use, yard and height exceptions are permitted by the terms of these regulations. In considering an application for a special exception, the board shall give due regard to the specific guides and standards of this section and those listed elsewhere in this chapter, and in general to the nature and condition of adjacent uses and structures, and the probable effect upon them of the proposed exception. It shall also take into account the special characteristics, design, location, construction, method of operation, effect on traffic conditions or any other aspects of the particular use or structure, that may be proposed by the applicant. If it should find, after the hearing that the proposed establishment or use will not adversely affect the health, safety or welfare of persons residing or working on the premises or in the neighborhood, will not unreasonably impair an adequate supply of light and air to adjacent property, nor increase congestion in the streets, nor increase public danger from fire or otherwise unreasonably affect the public safety, nor impair the character of the district or adjacent districts, nor be incompatible with the general plans and objectives of the official comprehensive plan of the county, nor be likely to reduce or impair the value of buildings or property in surrounding areas, but that such establishment or use will be in substantial accordance with the general purpose and objectives of this chapter, the board shall grant the exception and authorize the issuance, of a special exception permit. In those instances where the board finds that the proposed use may be likely to have an adverse effect as above, the board shall determine whether such effect can be avoided by the imposition of any special requirements or conditions with respect to location, design, construction, equipment, maintenance or operation, in addition to those expressly stipulated in this chapter.

b.

Special use exceptions. The following buildings and uses are permitted as special exceptions under the terms and conditions specified above:

1.

Buildings and uses listed as special exceptions in the zoning district regulations of the various zoning districts.

2.

Reserved.

3.

An accessory dwelling unit in a single-family dwelling or in an accessory building in an agricultural or residential district, provided that either the main dwelling or the accessory dwelling unit be occupied by the owner of the property, that the accessory dwelling unit shall not exceed twenty-five (25) percent of the total floor area of the main dwelling nor contain less than five hundred (500) square feet of floor area, that the general appearance of a single-family dwelling shall be maintained, that no exterior stairways to a second floor be constructed at the front or side of the main building, and that at least three (3) off-street parking spaces are available on the property for use by the owner-occupant and the tenant.

4.

Industrialized building units for office use in a business or industrial district.

5.

A garage or other building accessory to a single-family dwelling which building does not comply with the regulations of the district in which it is located.

6.

Extension of a nonconforming use in a building so as to increase floor area by not more than twenty-five (25) percent.

7.

Restoration, repair or replacement of a nonconforming use damaged by more than fifty (50) percent of fair market value of the building immediately prior to damage.

8.

Temporary uses and structures in any district not specifically listed in the regulations and determined by the board to be in the public interest for the district in which located; provided that such uses be of a temporary nature and do not involve the erection of substantial buildings. Such use or structure shall be authorized by the issuance of a temporary and revocable permit for not more than a twenty-four-month period subject to such conditions as will safeguard the public health, safety and welfare.

c.

Special yard and height exceptions.

1.

An exception in the yard regulations on a lot where on the adjacent lot there is a front, side, or rear yard that does not conform with such yard regulations in a way similar to the exception applied for, but not to encroach upon an existing or proposed right-of-way.

2.

An exception in the depth of a rear yard on a lot, in a block where there are nonconforming rear yards.

3.

An exception where there are irregularities in depths of existing front yards on a street frontage on the side of a street between two (2) intersecting streets, so that any one of the existing depths shall, for a building hereafter constructed or extended, be the required minimum front yard depth.

4.

Construction of a single-family dwelling with reduced yard spaces on a legal nonconforming lot.

5.

An exception to the height limits for special purpose structures in the B-2 general business district and in an industrial district.

(7)

The board may impose such conditions relating to the use provided for in the authorized special exceptions for which a permit is granted 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.

(8)

No such special exception may be granted except after notice and hearing as provided by Code of Virginia, § 15.1-431.

(Ord. of 6-18-90, § 19-16.2; Ord. of 9-28-98(2))

(a)

The board of zoning appeals may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the locality and general laws of the commonwealth.

(b)

The board by resolution may fix a schedule of regular meetings, and may also fix the day or days 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 shall be conducted at the continued meeting and no further advertisement is required.

(c)

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

(d)

The board shall keep a full public record of its proceedings and shall submit a report of its activities to the board of supervisors at least once each year.

(e)

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

(f)

For the conduct of any hearing, a quorum shall be not less than a majority of all the members of the board.

(g)

Except for appeals described in paragraph (h) herein below, actions of the board shall be valid if authorized by a majority vote of those present and voting.

(h)

The concurring vote of a majority of the membership of the board 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 the ordinance or to effect any variance from the ordinance.

(Ord. of 6-18-90, § 19-16.3; Ord. of 9-26-11)

State Law reference— Authority for above section, Code of Virginia, § 15.2-2308 et seq.

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 Code of Virginia, § 15.1-486 et seq. or this chapter. Such appeal shall be taken within thirty (30) days after the decision appealed from by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed was taken. An appeal shall stay all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board 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 or by a court of record, on application and on notice to the zoning administrator and for good cause shown.

(Ord. of 6-18-90, § 19-16.4)

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

(Ord. of 6-18-90, § 19-16.5)

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 same within ninety (90) days of filing the application or appeal. In exercising its powers the board may reverse or affirm, wholly or partly, or may modify the 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 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. The board shall keep minutes of its proceedings and other actions which shall be filed in the office of the board and shall be public records. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.

(Ord. of 6-18-90, § 19-16.6)

The board may require satisfactory evidence and guarantee or bond that the conditions stipulated will be and will continue to be complied with. Any special exception or variance permit may be authorized and issued for either a limited or an indefinite period of time and shall be revocable by the board at any time for failure to adhere to the applicable conditions. Before revoking any such permit, however, the board shall afford the permit holder an opportunity to be heard, giving him at least five (5) days written notice of the time and place of such hearing, served as prescribed by law.

(Ord. of 6-18-90, § 19-16.7)

After the board of appeals has approved a special exception or granted a variance, the special exception or variance so approved or granted shall lapse after the expiration of one (1) year if no substantial construction or change of use has taken place in accordance with the plans for which such special exception or variance was granted, or if the board does not specify some longer period than one (1) year for good cause shown, and the provisions of these regulations shall thereafter govern.

(Ord. of 6-18-90, § 19-16.8)

The procedure for amendment of a special exception or variance already approved, or a request for a change of conditions attached to an approval, shall be the same as for a new application except that where the administrator determines the change to be minor relative to the original approval he may transmit the same to the board with the original record without requiring that a new application be filed.

(Ord. of 6-18-90, § 19-16.9)

(a)

Any person jointly or severally aggrieved by any decision of the board of zoning appeals, or any taxpayer or any officer, department, board or bureau of the county may present to the circuit court of the county a petition specifying the grounds on which aggrieved within thirty (30) days after the filing of the decision in the office of the board.

(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 relator's attorney, which shall not be less than ten (10) 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 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 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 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 such evidence as it may direct and report the same 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)

Costs shall not be allowed against the board, 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 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 a return of the record pursuant to the writ of certiorari.

(Ord. of 6-18-90, § 19-16.10)