A board consisting of five (5) members shall be appointed by the circuit court judge. Each member shall be appointed for a term of five (5) years, except that original appointments shall be made for such terms that the term of one member shall expire each year. One (1) of the five (5) appointed members shall be an active member of the planning commission. The secretary of the board shall notify the court at least thirty (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. Members of the board shall hold no other public office in the locality except that one (1) may be a member of the local planning commission.

( Ord. of 3-23-67 , Charter Code § 10-1; Ord. of 2-14-17(2) )

State Law reference— Boards of zoning appeals to be created, Code of Virginia § 15.2-2308.

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

The board shall serve without pay, other than for traveling expenses.

( Ord. of 3-23-67 , Charter Code § 10-1)

Members may be removed for cause by the appointing authority upon written charges and after a public hearing.

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.

( Ord. of 3-23-67 , Charter Code § 10-1)

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 this article or of any ordinance adopted pursuant thereto.

(2)

To authorize upon appeal 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 at the time of the effective date of this chapter; where by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property or of the use or development of property or of the use or development of property immediately adjacent thereto, the strict application of the terms of this chapter would effectively prohibit or unreasonably restrict the use 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: (a) that the strict application of this chapter would produce undue hardship; (b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and (c) 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, § 15.2-2310, as amended.

(3)

No variance shall be authorized unless the board finds that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably the formulation of a general regulation to be adopted as an amendment to this chapter.

(4)

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.

(5)

In authorizing a variance, special exception, or special use permit the board may require the applicant to produce satisfactory evidence that any delinquent real estate taxes, nuisance charges, stormwater management utility fees, and any other charges that constitute a lien against the subject property that are owed to the town and have been properly assessed against the subject property, have been paid.

( Ord. of 3-23-67 , Charter Code § 10-2; Ord. of 2-14-17(2) )

State Law reference— Powers and duties of boards of zoning appeals, Code of Virginia, § 15.2-2309; applicant to pay delinquent taxes, Code of Virginia, § 15.2-2286.

The board of zoning appeals shall adopt such rules and regulations as it may consider necessary.

The meeting of the board shall be held at the call of its chairman or at such time as a quorum of the board may determine. A quorum shall be at least three (3) members. All meetings of the board shall be open to the public. The chairman, or in his absence, the acting chairman, may administer oaths and compel the attendance of witnesses.

A favorable vote of three (3) members of the board shall be necessary to reverse any order, requirement, decision or determination of any administrative official or to decide in favor of the applicant on any matter upon which the board is required to pass.

The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact. It shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

( Ord. of 3-23-67 , Charter Code § 10-3)

An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the town affected by any decision of the zoning administrator. 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 this opinion, cause imminent peril to life or property, in which case, proceedings shall 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 3-23-67 , Charter Code § 10-4)

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

Appeals requiring an advertised public hearing shall be accompanied by a fee payable to the town treasurer in the amount as designated in section 23-116.

( Ord. of 3-23-67 , Charter Code § 10-5; Ord. of 3-11-14(1) )

Editor's note— An ordinance adopted March 11, 2014, changed the title of § 23-109 from "Appeal procedure" to read as herein set out.

The board 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 sixty (60) days. 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 three (3) members 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 official 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 3-23-67 , Charter Code § 10-6)

Any person or persons 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 town 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.

( Ord. of 3-23-67 , Charter Code § 10-7)

Upon the presentation of such petition, the court may 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.

( Ord. of 3-23-67 , Charter Code § 10-7)

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 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 of the decision appeals from and shall be verified.

( Ord. of 3-23-67 , Charter Code § 10-7)

If, upon the hearing, it shall appeal 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.

( Ord. of 3-23-67 , Charter Code § 10-7)

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.

( Ord. of 3-23-67 , Charter Code § 10-7)

Upon proper application to the town manager for the Town of Tazewell, the town manager shall be authorized to issue a zoning permit for family day homes, as defined in the Code of Virginia, § 63.1-195, as amended, serving six (6) through twelve (12) children, exclusive of the provider's own children and any children who reside in the home, upon the applicant's certification of compliance with the following provisions prior to the issuance of said permit:

(1)

Operator must be a licensed day care provider as approved and certified through the Virginia Department of Social Services;

(2)

No signs of any type shall be placed in the yard of the home which advertise the operation of the family day home;

(3)

No motorized play equipment of any type shall be permitted;

(4)

Operator shall schedule drop off and pick up times for said children in such a manner so that vehicles coming to and from the residence do not impede the free flow of traffic in the area or block any neighboring resident from the use of their driveway, or impede any other normal and usual access to the neighbor's property;

(5)

Operator shall apply for and obtain an annual business license from the town.

(6)

The issuance of the zoning permit shall be subject to an annual review by the town manager, and to re-notification of adjacent landowners of the operator's desire to continue operation as a family day home for the coming year.

Following the submission of an application for a zoning permit, but prior to its issuance, the town manager shall notify each adjacent property owner, by registered or certified letter to the adjacent owner's last known address, of the pending application, and of the property owner's right to object to the issuance of the permit. The applicant shall be responsible for payment of the costs associated with notification. The town manager shall inform said adjacent owners that any objection must be made in writing and forwarded to the attention of the town manager within thirty (30) days of the date of the sending of the notification letter. If the town manager does not receive a written objection from any person so notified within thirty (30) days of the letter, and determines that the family day home is otherwise in compliance with the provisions set forth herein, the town manager may issue the permit.

If the application is denied, the town manager shall inform the applicant of the denial in writing, and of the applicant's option to request, in writing, that his/her application be considered by the council at a hearing. The hearing shall be held following public notice as provided in Code of Virginia, § 15-2204 of the as amended, the cost of which notice shall be borne by the applicant.

(Ord. of 7-11-01 )

( Ord. of 3-11-14(1) ; Ord. of 7-11-01 ; Ord. of 1-14-2020 )

Editor's note— An ordinance adopted July 11, 2001 renumbered § 23-116 to 23-120.