The provisions of this chapter shall be administered and enforced by an officer to be known as the zoning administrator, who shall be appointed by the City Manager. The zoning administrator shall have all necessary authority on behalf of the City to administer and enforce the provisions of this chapter, including the ordering in writing of the remedying of any condition found in violation of this chapter, and the bringing of legal action to ensure compliance with this chapter, including injunction, abatement or other appropriate action or proceeding. If a request for a reasonable modification is made to the City and is appropriate under the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.), as applicable, such request shall be granted unless a variance from the board of zoning appeals under this chapter is required in order for such request to be granted.

(Ord. No. 862, 10-10-91; Ord. No. 18-08, 10-11-18)

Cross reference— Officers and employees, § 2-141 et seq.

(a)

Issuance. If a proposed use is in conformity with the provisions of this chapter, a certificate of occupancy shall be issued by the zoning administrator. A temporary certificate of occupancy may be issued by the zoning administrator prior to the completion of all work required by this chapter, provided that such portion or portions of the building and/or land may be occupied safely without endangering life or public welfare. The time period for this temporary certificate shall be determined by the zoning administrator, who may also require a surety bond or other acceptable guarantee of a performance to ensure completion of the work required by this chapter.

(b)

When required.

(1)

A certificate of occupancy shall be obtained from the zoning administrator for any of the following:

a.

Use or change in use of a building hereafter erected.

b.

Change in the use of an existing building.

c.

Use or change in the use of land.

d.

Any change in the use of a nonconforming use.

e.

Enlargement of any use which increases the amount of required parking spaces, whether the required parking is governed by floor area, dwelling units, seats or any other element of size of the use.

(c)

Not to permit violations of law. No certificate of occupancy shall be deemed to validate any violation of any provision of any law or ordinance.

(d)

Effect. A certificate of occupancy is required for the occupancy and use of a building or land. If the provisions of this chapter are violated, the certificate of occupancy shall become null and void and a new certificate shall be required for any further use of such building or land.

(e)

For building or land when regulations change. On written request by the owner, the zoning administrator shall issue a certificate of occupancy for any lawful use or lawful nonconforming use of a building or of land existing at the time of the adoption of this chapter or at the time of the adoption of any amendments of this chapter changing the regulations applying to such building or land. The zoning administrator shall certify, after inspection and investigation, whether the use conforms to the provisions of this chapter for the district in which it is situated or is a valid nonconforming use as defined by article X of this chapter. The zoning administrator may require such proof as may be necessary to enable him to make a determination in the matter, and the furnishing of such proof shall be a condition of his acting on the request.

(Ord. No. 862, 10-10-91)

Unless zoning district boundary lines are fixed by dimensions or otherwise clearly shown or described, and, where uncertainty exists with respect to the boundaries of any of the zoning districts as shown on the official zoning map, the following rules shall apply:

(a)

Boundaries indicated as approximately following the centerlines of streets, highways, alleys or railroad main tracks shall be construed to follow such centerlines.

(b)

Boundaries indicated as approximately following platted lot lines shall be construed as following such lot lines.

(c)

Boundaries indicated as following shorelines shall be construed to follow such shorelines, and in the event of change in the shoreline shall be construed as moving with the actual shoreline; boundaries indicated as approximately following the centerlines of streams, rivers, lakes or other bodies of water shall be construed to follow such centerlines.

(d)

Boundaries indicated as parallel to or extensions of features indicated in subsections (a) through (c) above shall be so construed. Distances not specifically indicated on the official zoning map shall be determined by the scale of the map.

(Ord. No. 862, 10-10-91)

(a)

All city officials and employees who are vested with duty or authority to issue permits or licenses shall adhere to the provisions of this chapter. They shall issue permits for uses, buildings or purposes only when they comply with the provisions of this chapter. Any permit or license issued in conflict with the provisions of this chapter shall be null and void.

(b)

The following persons shall be jointly and severally liable for any violation of this chapter that causes, permits a violation of the zoning ordinance, or fails to abate such violation within the time frame specified in a notice of violation given to such person:

(1)

Any owner who holds fee simple title to such real property, whether as sole owner or co-owner thereof; and whether such co-ownership is as a tenant by the entireties, joint tenant or tenant in common, and also including any trustee that holds title to real property, excluding, however, a trustee under any deed of trust on the property,

(2)

Any tenant occupies the property, whether or not for compensation,

(3)

Any person who is in charge of one or more of the development, maintenance, occupancy or use of the property.

The City may proceed against any one or more of said persons for violation of this chapter, and each person proceeded against shall be punished by assessment of a civil penalty of $200.00 for the initial summons and $500.00 for each additional summons.

a.

Each day during which the violation is found to exist shall constitute a separate offense; however, in no event shall penalties for specified violations arising from the same operative set of facts be charged more frequently than once in any ten-day period, nor shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of $3,000.00. No civil penalty shall accrue or be assessed during the pendency of the 30-day appeal period provided for under section 21-98 of this Code.

b.

Each violation shall be subject only to the civil penalty set forth unless such violation results in injury to one or more persons, in which case the violation may, at the option of the zoning administrator, be prosecuted as a misdemeanor punishable by a fine of not more than $1,000.00. In the event of such election, no civil penalty shall be assessed as to such violation. If the violation is uncorrected at the time of the conviction, the court shall order the violator to abate or remedy the violation in compliance with the zoning ordinance, within a time period established by the court. Failure to remove or abate a zoning violation within the specified time period shall constitute a separate misdemeanor offense punishable by a fine of not more than $1,500.00, and; any such failure during any a succeeding ten-day period shall constitute a separate misdemeanor offense for each ten-day period punishable by a fine of not less than $100.00 nor more than $1,500.00; and any such failure during any succeeding ten-day period shall constitute a separate misdemeanor offense for each ten-day period punishable by a fine of not more than $2,000.00.

(4)

If a person charged with a violation does not elect to enter a waiver of trial as hereinafter provided, the violation shall be tried in the General District Court for the City of Williamsburg and the County of James City in the same manner and with the same right of appeal as provided by law.

(5)

Any person subject to civil penalty and summoned for a violation may appear in person or in writing by mail to the department of finance prior to the date fixed for trial in court. Such person may enter a waiver of trial, admit liability and pay the civil penalty assessed hereunder. Such persons shall be informed of their right to stand trial and that such person's signature to an admission of liability will have the same force and effect as a judgment in court.

(6)

An admission or finding of liability shall not be a criminal conviction for any purpose.

(c)

In addition to pursuing the penalties provided in subsection 21-29(b) above, the zoning administrator may bring additional legal action to ensure compliance with this chapter, including injunction, abatement or other appropriate action or proceeding.

(d)

For purposes of this chapter, owner means the person or entity shown on the City's current real estate assessment records or the fee simple title holder(s) of the property if ownership has changed since such tax assessment records were last updated; tenant means any person, other than the owner, who resides at or otherwise occupies the subject property, with or without a valid lease and whether or not compensation is paid for said residence or not.

(Ord. No. 862, 10-10-91; Ord. No. 2-96, 2-8-96; Ord. No. 06-14, 5-11-06; Ord. No. 06-22, 9-14-06; Ord. No. 11-10, 6-9-11; Ord. No. 18-14, 11-8-18)

Special use permit uses are those which, if not specially regulated, can have an undue impact or be incompatible with other uses of land within or adjacent to a given zoning district. Upon the granting of a special use permit by the city council, these uses may be allowed to locate or expand within designated districts under the standards, controls, limitations, performance criteria, restrictions and other regulations of this division.

(Ord. No. 862, 10-10-91)

All applications for special use permits shall be reviewed using the following criteria:

(a)

The proposed use shall be:

(1)

In harmony with the adopted comprehensive plan.

(2)

In harmony with the intent and purpose of the zoning district in which the use is proposed to be located.

(3)

In harmony with the character of adjacent properties and the surrounding neighborhoods, and with existing and proposed development.

(b)

The proposed use shall be adequately served by essential public services such as streets, drainage facilities, fire protection and public water and sewer facilities.

(c)

The proposed use shall not result in the destruction, loss or damage of any feature determined to be of significant ecological, scenic or historic importance.

(d)

The proposed use shall be designed, sited and landscaped so that the use will not hinder or discourage the appropriate development or use of adjacent properties and surrounding neighborhoods.

(Ord. No. 862, 10-10-91)

(a)

In granting any special use permit, the city council may impose any conditions necessary to ensure that the proposed use will conform with the requirements of this section and will continue to do so. The city council may require surety bond or other guarantee of performance acceptable to it to ensure compliance with the conditions imposed.

(b)

The city council may impose reasonable standards as deemed necessary to protect the public interest and welfare. Such standards may include, but need not be limited to:

(1)

More restrictive sign standards.

(2)

Additional open space, landscaping or screening requirements.

(3)

Additional yard requirements.

(4)

Special lighting requirements.

(5)

Limitation on hours of operation.

(6)

Additional off-street parking and loading requirements.

(c)

The city council may specify time limits or expiration dates for a special use permit, including provisions for periodic review and renewal.

(Ord. No. 862, 10-10-91)

(a)

Except as otherwise provided by Section 21-899 of the Williamsburg Code, an application for a special use permit shall be made by the owner, contract purchaser with the owner's written consent, or the owner's agent, of the property on which the proposed use is to be located. The application shall be submitted to the Zoning Administrator, and shall be accompanied by the filing fee listed on the fee schedule adopted by City Council.

(b)

If the request for a special use permit has been denied by the city council, substantially the same request shall not be reconsidered within 365 days of the denial.

(c)

The application shall include the following information:

(1)

A preliminary site plan in accordance with article VII, Site Plans, section 21-778.

(2)

A description of the proposed use and, where applicable, the hours of operation and the proposed number of employees.

(3)

When deemed necessary by the planning director or the planning commission, the following information shall be provided:

a.

The front, side and rear elevations and floor plans of the proposed buildings.

b.

A traffic impact analysis, showing the effect of traffic generated by this project on surrounding streets and neighborhoods.

c.

A public utility analysis, showing the effect of this project on public water, sewer and/or storm drainage facilities.

d.

A fiscal impact analysis. The planning director or the planning commission may request the city council to provide funds for the preparation of this study by the city.

(Ord. No. 862, 10-10-91; Ord. No. 2-94, § 1, 1-13-94; Ord. No. 19-98, 6-11-98; Ord. No. 16-18, 12-8-16)

(a)

No special use permit shall be approved unless the proposal has been reviewed by the planning commission. The commission shall hold at least one public hearing after notice as required by Code of Virginia, § 15.2-2204. Following the hearing, the planning commission shall prepare and by motion adopt its recommendations, which may include changes in the original proposal resulting from the hearing, and shall transmit such recommendations, together with any explanatory material, to the city council.

(b)

Failure of the planning commission to report within 100 days after the first meeting of the commission after the proposal has been referred to the commission shall be deemed approval, unless the proposed special use permit has been withdrawn by the applicant prior to the expiration of such time period.

(c)

In addition to the notices required, there shall be posted upon the affected parcel or parcels, clearly visible from a public street, a sign containing the heading "PUBLIC NOTICE" prominently displayed in bold print. Such sign shall state the special use permit case number and the telephone number of the planning department. Such notice shall be posted at least 14 days prior to the planning commission public hearing. Failure to constantly maintain such sign on the property until the date of the planning commission public hearing shall not invalidate the granting of a special use permit. An affidavit by the zoning administrator or his agent stating that the required sign was properly posted shall be prima facie evidence that the posting requirement was complied with.

(Ord. No. 862, 10-10-91; Ord. No. 07-37, § 1, 10-11-07)

(a)

Before approving a special use permit, the city council shall hold at least one public hearing after public notice as required by Code of Virginia, § 15.2-2204, after which the city council may make appropriate changes to or impose appropriate conditions upon the proposed special use.

(b)

Approval of a special use permit by city council shall expire one year from the date of the approval of the special use permit, unless a final site plan in accordance with the special use permit has been approved in accordance with Article VII. If an applicant for a special use permit presents a specific construction schedule for the project as a part of the application, city council may specify an expiration date for the submittal of the final site plan or plans based on the submitted time schedule; provided that city council concludes that the schedule is necessary based on the nature and scope of the project. If the final site plan has been approved, the special use permit shall expire five years from the date of the approval of the final site plan, unless a building permit has been obtained for construction; or, if a building permit has been issued and construction has not commenced, upon the expiration of the building permit. The above notwithstanding, in accordance with Virginia Code § 15.2-2209.1B, any valid special exception, special use permit, or conditional use permit outstanding as of January 1, 2011, and related to new residential or commercial development, any deadline in the exception permit, or in the zoning ordinance that requires the landowner or developer to commence the project or to incur significant expenses related to improvements for the project within a certain time, shall be extended until July 1, 2017, or longer as agreed to by the city. The provisions of this subsection shall not apply to any requirement that a use authorized pursuant to a special exception, special use permit, conditional use permit, or other agreement or zoning action be terminated or ended by a certain date or within a set number of years. Such extension shall not be effective unless any unreleased performance bonds and agreements or other financial guarantees of completion of public improvements in or associated with the proposed development are continued in force.

(Ord. No. 862, 10-10-91; Ord. No. 14-99, 4-8-99; Ord. No. 23-99, 10-14-99; Ord. No. 12-33, 12-13-12)

(a)

Minor changes to the approved special use permit may be approved by the planning commission during site plan review. A change shall be minor if it:

(1)

Does not change the general character of the approved special use permit.

(2)

Does not adversely affect the development or use of adjacent properties and surrounding neighborhoods.

(3)

Does not result in any substantial change to major external access points.

(4)

Does not increase the approved number of dwelling units and/or the approved amount of nonresidential floor area.

(5)

Does not add buildings not shown on the approved development plan.

(6)

Does not violate any specific conditions that were made a part of the special use permit approval.

(b)

Any changes not authorized by this section shall require amendment of the special use permit in accordance with the procedures contained in this division for a new application.

(Ord. No. 14-99, 4-8-99)

(a)

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

(1)

By resolution of the City Council;

(2)

By motion of the Planning Commission; or

(3)

Except as otherwise provided by Section 21-899 of the Williamsburg Code, by petition of the owner, contract purchaser with the owner's written consent, or the owner's agent therefor, of the property which is the subject of the proposed amendment, submitted to the Zoning Administrator.

(b)

If a petition for amendment has been denied by the city council, substantially the same petition shall not be reconsidered within 365 days of the denial. This provision shall not impair the right of either the planning commission or the city council to propose any amendment to this chapter on their own motion at any time.

(Ord. No. 862, 10-10-91; Ord. No. 16-18, 12-8-16)

(a)

No zoning ordinance shall be adopted, amended or reenacted unless the proposal has been reviewed by the planning commission. When deemed necessary by the planning director or the planning commission, the following additional information shall be provided:

(1)

A traffic impact analysis, showing the effect of traffic generated by this project on surrounding streets and neighborhoods.

(2)

A public utility analysis, showing the effect of this project on public water, sewer and/or storm drainage facilities.

(3)

A fiscal impact analysis. The planning director or the planning commission may request the city council to provide funds for the preparation of this study by the city.

(b)

The commission shall hold at least one public hearing on such proposed amendment after notice as required by Code of Virginia, § 15.2-2204. Following the hearing, the planning commission shall prepare and by motion adopt its recommendations, which may include changes in the original proposal resulting from the hearing, and shall transmit such recommendations, together with any explanatory matter, to the city council.

(c)

Failure of the planning commission to report within 100 days after the first meeting of the commission after the proposal has been referred to the commission shall be deemed a recommendation for approval, unless such proposal has been withdrawn by the applicant prior to the expiration of such time period.

(d)

In addition to the notices required, there shall be posted upon the affected parcel or parcels, clearly visible from a public street, a sign containing the heading "PUBLIC NOTICE" prominently displayed in bold print. Such sign shall state the rezoning case number and the telephone number of the planning department. Such notice shall be posted at least 14 days prior to the planning commission public hearing, but failure to constantly maintain such sign on the property until the date of the planning commission public hearing shall not invalidate any resulting change in zoning classification. An affidavit by the zoning administrator or his agent stating that the required sign was properly posted shall be prima facie evidence that the posting requirement was complied with.

(Ord. No. 862, 10-10-91; Ord. No. 2-94, § 2, 1-13-94; Ord. No. 07-37, § 2, 10-11-07)

(a)

Before approving the proposed amendment, the city council shall hold at least one public hearing, after public notice as required by Code of Virginia, § 15.2-2204, after which the city council may make appropriate changes or corrections in the proposed amendment; provided, however, that no additional land may be zoned to a different classification than was contained in the public notice without an additional public notice as required by Code of Virginia, § 15.2-2204.

(b)

If a protest or protests be filed with city council, signed by the owners of 20 percent or more of the area of the land included in the proposed change, or by the owners of 20 percent or more of the area of the land immediately adjacent to the land included in the proposed change, or by the owners of 20 percent or more of the land within 100 feet from the land in the proposed change, or by the owners of 20 percent or more of the area of the land directly opposite across any street or streets from the land included in the proposed change, within a distance of 100 feet from the street lines directly opposite, then no such change shall be made except by the favorable vote of four-fifths of all members of the council, or, in the event that one or more members of the council do not vote, then by the unanimous vote of all members voting, but in no event less than three.

(Ord. No. 862, 10-10-91; Ord. No. 2-94, § 2, 1-13-94; Ord. No. 07-37, § 2, 10-11-07)

Charter reference— Protests by owners, § 62.

Every petition shall be accompanied by a filing fee in the amount listed on the fee schedule adopted by city council.

(Ord. No. 862, 10-10-91; Ord. No. 2-94, § 3, 1-13-94; Ord. No. 19-98, 6-11-98)

It is the general policy of the city to provide for the orderly development of land, for all purposes, through zoning and other land development legislation. Frequently where competing and incompatible uses conflict, traditional zoning methods and procedures are inadequate. In these cases, more flexible and adaptable zoning methods are needed to permit land uses and at the same time to recognize effects of change. It is the purpose of this article to provide a more flexible and adaptable zoning method to cope with situations found in such zones through conditional zoning, whereby a zoning reclassification may be allowed subject to certain conditions proffered by the zoning applicant for the protection of the community that are not applicable to land similarly zoned. The provisions of this article shall not be used for the purpose of discrimination in housing.

(Ord. No. 862, 10-10-91)

(a)

Prior to a public hearing before the city council, in accordance with the provisions of Division 3, Amendments, of this article, the owner or owners of property sought to be rezoned under the provisions of this chapter may voluntarily proffer in writing reasonable conditions, in addition to the regulations provided for in the zoning district or zone sought in the rezoning petition. Said conditions shall be proffered as a part of the requested rezoning or amendment to the official zoning map. Conditions so proffered are subject to the following limitations:

(1)

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

(2)

Such conditions shall have a reasonable relation to the rezoning;

(3)

All such conditions shall be in conformity with the city's comprehensive plan;

(4)

No proffer shall be accepted by the city unless it has adopted a capital improvement program pursuant to Code of Virginia, § 15.2-2239. In the event proffered conditions include the dedication of real property or payment of cash, such property shall not transfer and such payment of cash shall not be made until the facilities for which such property is dedicated or cash is tendered are included in the capital improvement program; provided, that nothing herein shall prevent the city from accepting proffered conditions which are not normally included in such capital improvement program;

(5)

If proffered conditions include the dedication of real property or the payment of cash, the proffered conditions shall provide for the disposition of such property or cash payment in the event the property or cash payment is not used for the purpose for which proffered;

(6)

Reasonable conditions shall not include, however, conditions that impose upon the applicant the requirement to create a property owners' association under chapter 26 (Code of Virginia, § 55-508 et seq.) of Title 55, Code of Virginia, which includes an express further condition that members of a property association pay an assessment for the maintenance of public facilities owned in fee by a public entity, including open space, parks, schools, fire departments, and other public facilities not otherwise provided for in Code of Virginia, § 15.2-2241, however, such facilities shall not include sidewalks, special street signs or markers, or special street lighting in public rights-of-way not maintained by the city.

(7)

Payments of cash proffered on a per-dwelling unit or per-home basis for residential construction shall be collected or accepted only after completion of the final inspection and prior to the time of the issuance of any certificate of occupancy for the subject property.

(b)

Once proffered and accepted as an amendment to the zoning classification of such property, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning classifications of the property; provided, however, that unless expressly repealed, such conditions shall continue if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning ordinance. The above notwithstanding pursuant to petition of the owner of land that is subject to approved proffers, city council may approve or amend such proffers in accordance with procedures prescribed in Code of Virginia, § 15.2-2302.

(c)

Proffered cash payments and expenditures.

(1)

For each fiscal year the city shall: (i) include in its capital improvement program created pursuant to Code of Virginia, § 15.2-2239, or as an appendix thereto, the amount of all proffered cash payments received during the most recent fiscal year for which a report has been filed pursuant to subsection (c)(3); and (ii) include in its annual capital budget the amount of proffered cash payments projected to be used for expenditures or appropriated for capital improvements in the ensuing year.

(2)

No proffered cash payment shall be used for any capital improvement to an existing facility, such as a renovation or technology upgrade, that does not expand the capacity of such facility or for any operating expense of any existing facility such as ordinary maintenance or repair.

(3)

Within three months of the close of each fiscal year the city shall report to the commission on local government the following information for the preceding fiscal year:

a.

The aggregate dollar amount of proffered cash payments collected by the city;

b.

The estimated aggregate dollar amount of proffered cash payments that have been pledged to the city and which pledges are not conditioned on any event other than time; and

c.

The total dollar amount of proffered cash payments expended by the city, and the aggregate dollar amount expended in each of the following categories:

(4)

For each fiscal year thereafter during which the city did not accept any proffered cash payments during the preceding fiscal year the city shall within three months of the close of each fiscal year so notify the commission on local government.

(Ord. No. 862, 10-10-91; Ord. No. 05-01, 2-10-05; Ord. No. 11-23, 11-10-11; Ord. No. 12-33, 12-13-12; Ord. No. 14-05, 1-9-14; Ord. No. 15-21, 10-8-15)

The zoning administrator shall be vested with all necessary authority on behalf of the city council to administer and enforce conditions attached to a rezoning or amendment to the official zoning map, including:

(1)

The ordering in writing of the remedy of any noncompliance with such conditions;

(2)

The bringing of legal action to ensure compliance with such conditions, including injunction, abatement or other appropriate act or proceeding; and

(3)

Requiring a secured guarantee, satisfactory to the city council, in an amount sufficient to ensure full performance and conditioned upon the construction of any physical improvements required by the proffers. A contract for the construction of such improvements and the contractor's secured guarantee of payment and performance may, with city council's consent, be substituted for the owner's guarantee. The guarantee shall be reduced or released by the city council or city manager, upon the submission of satisfactory evidence that construction of such improvements has been completed in whole or in part. Failure to meet all conditions shall constitute cause to deny the issuance of any required use, occupancy or building permits as may be appropriate.

(Ord. No. 862, 10-10-91)

The official zoning map shall show by an appropriate symbol thereon the existence of conditions attached to the zoning on the map, and the landowner's written proffers shall be duly acknowledged, recorded and indexed among the land records in the clerk's office for the circuit court of the city and the County of James City. The zoning administrator shall keep in his office and make available for public inspection a conditional zoning index. The index shall provide ready access to the ordinances creating conditions in addition to the regulations provided for a particular zoning district.

(Ord. No. 862, 10-10-91)

(a)

Any zoning applicant who is aggrieved by the decision of the zoning administrator pursuant to the provisions of section 21-78 may petition the city council for the review of the decision of the zoning administrator. Such appeal shall be taken within 30 days from the date of the action complained of and shall be instituted by filing with the zoning administrator a notice of appeal, specifying the grounds thereof.

(b)

The zoning administrator shall forthwith transmit to the city council all the papers constituting the record upon which the action appealed from was taken, and the city council shall proceed to hear the appeal at its next scheduled meeting.

(c)

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the city council after the notice of appeal has been filed with him that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, the proceedings shall not be stayed otherwise than by a restraining order which may be granted by the city council or by a court of record on application or notice to the zoning administrator and on due cause shown.

(Ord. No. 862, 10-10-91)

There shall be no amendment or variation of any condition created pursuant to the provisions of this division until after a public hearing before city council advertised pursuant to the provisions of Code of Virginia, § 15.2-2204, unless such public hearing or notice are waived by city council as permitted by Virginia Code §§ 15.2-2302B or E.

(Ord. No. 862, 10-10-91; Ord. No. 14-05, 1-9-14; Ord. No. 14-07, 1-9-14)

(a)

There shall be created a board of zoning appeals, which shall consist of five residents of the city, appointed by the city council (the Charter, chapter IX, section 62). Their terms of office shall be five years each except that original appointments shall be made for such terms that the term of one member shall expire each year. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves. Members of the board shall hold no other public office in the city except that one may be a member of the planning commission. A member whose term expires shall continue to serve until his successor is appointed and qualifies.

(b)

With the exception of its secretary, the board shall elect from its membership a chairperson and vice chairperson, who shall serve annual terms and may succeed themselves. The board may elect as its secretary either one of its members or a qualified individual who is not a member of the board. A secretary who is not a member of the board shall not be entitled to vote on matters before the board. For the conduct of any hearing, a quorum shall be not less than a majority of all the members of the board. The board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the city and general laws of the commonwealth. The board shall offer an equal amount of time in a hearing on the case to the applicant, appellant or other person aggrieved under section 21-101, and the staff of the city. 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. On all other matters, no action of the board shall be valid unless authorized by a majority vote of those present and voting. The board shall keep a full public record of its proceedings and shall submit a report of its activities to the city council at least once a year.

(c)

Within the limits of funds appropriated by the city council, the board may employ or contract for secretaries, clerks, legal consultants and other technical and clerical services. Members of the board may receive such compensation as may be authorized by the city council.

(Ord. No. 09-09, 8-13-09; Ord. No. 11-22, 11-10-11; Ord. No. 15-22, 10-8-15)

(a)

The non-legal staff of the city 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 the 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 city staff, the applicant, landowner or his agent or attorney are all invited.

(b)

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 person aggrieved under section 21-101, 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 person aggrieved under section 21-101 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, § 2.2-3704 [FOIA]. Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to Code of Virginia, § 2.2-3707F.

(c)

For the purposes of this section, "non-legal staff of the city" means any staff who are not in the office of the city attorney, or for the board, or who is appointed by special law or pursuant to Code of Virginia, § 15.2-1542 [Creation of office of City Attorney]. 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.

(d)

This section shall not apply to cases where an application for a special exception has been filed pursuant to subsections 21-97(f) and (g).

(Ord. No. 15-22, 10-8-15)

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

(a)

To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this chapter or of any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The determination of the administrative officer shall be presumed to be correct. At a hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence. The board shall consider any applicable ordinances, laws and regulations in making its decision. For purposes of this section, determination means any order, requirement, decision or determination made by an administrative officer. Any appeal of a determination to the board shall be in compliance with this section, notwithstanding any other provision of law, general or special.

(b)

Notwithstanding any other provision of law, general or special, to grant upon appeal or original application in specific cases a variance (as defined in section 21-2) 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 section 21-2 and the criteria set out in this section.

(1)

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 the granting of 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, or alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability, and: (i) 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; (ii) the granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; (iii) 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; (iv) 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 (v) the relief or remedy sought by the variance application is not available through the special exception process that is authorized in the ordinance pursuant to subsection 21-97(f) or the process for modification of a zoning ordinance pursuant to article II, division 3, Amendments, at the time of the filing of the variance application. Any variance granted to provide a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability shall expire when the person benefited by it is no longer in need of the modification to such property or improvements provided by the variance, subject, however, to the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12131 et seq.), as applicable.

(2)

No such variance shall be considered except after notice and hearings as required by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the Board may give such notice by first-class mail rather than by registered or certified mail.

a.

In addition to the notices required, there shall be posted upon the affected parcel or parcels, clearly visible from a public street, a sign containing the heading "PUBLIC NOTICE" prominently displayed in bold print. Such sign shall state the board of zoning appeals case number and the telephone number of the planning department. Such notice shall be posted at least 14 days prior to the board of zoning appeals public hearing. Failure to constantly maintain such sign on the property until the date of the board of zoning appeals public hearing shall not invalidate any resulting approval of a special exception. An affidavit by the zoning administrator or his agent stating that the required sign was properly posted shall be prima facie evidence that the posting requirement was complied with.

(3)

In granting 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. Notwithstanding any other provision of law, general or special, the property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state law and local ordinance; however, the structure permitted by the variance may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance is required under the ordinance. Where the expansion is proposed within an area of the site or part of the structure for which a variance is required, the approval of an additional variance shall be required.

(c)

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, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.

(d)

To hear and decide applications for interpretation of the official zoning map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by such question, and after public hearing with notice as required by Code of Virginia, § 15.2-2204, the board may interpret the map in such way as to carry out the intent and purpose of the chapter for the particular section or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by this chapter.

(e)

No provision of this section shall be construed as granting the board 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.

(f)

To hear and decide applications for such special exceptions as may be authorized by this chapter.

(1)

In reaching a decision on the authorization of a special exception, the board of zoning appeals shall consider, where applicable, the following:

a.

Stated intent of the zoning district in which the property is located;

b.

Uses in the area immediately surrounding the property in question;

c.

Amount of traffic to be generated;

d.

Number of people to be employed;

e.

Hardship that would result from the denial of the special exception; and

f.

Such other criteria as may be prescribed for a particular special exception under other sections of this chapter.

(2)

A special exception shall not be approved by the board of zoning appeals unless it is found that:

a.

It is designed, constructed and operated to adequately safeguard the health, safety and welfare of the occupants of the adjoining and surrounding property;

b.

It does not unreasonably impair an adequate supply of light and air to adjacent property;

c.

It does not increase public danger from fire or otherwise unreasonably restrict public safety; and

d.

It does not impair the established property values in surrounding areas.

(3)

The board may impose such conditions relating to the use for which a permit is granted as it deems necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.

(4)

No such special exception may be granted except after notice and hearing as provided by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail.

a.

In addition to the notices required, there shall be posted upon the affected parcel or parcels, clearly visible from a public street, a sign containing the heading "PUBLIC NOTICE" prominently displayed in bold print. Such sign shall state the board of zoning appeals case number and the telephone number of the planning department. Such notice shall be posted at least 14 days prior to the board of zoning appeals public hearing. Failure to constantly maintain such sign on the property until the date of the board of zoning appeals public hearing shall not invalidate any resulting approval of a special exception. An affidavit by the zoning administrator or his agent stating that the required sign was properly posted shall be prima facie evidence that the posting requirement was complied with.

(g)

To revoke a special exception previously granted by the board of zoning appeals if the board determines that there has not been compliance with the terms or conditions of the permit. No special exception may be revoked except after notice and hearing as provided by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first class mail rather than by registered or certified mail.

(h)

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 in accordance with Code of Virginia, § 15.2-2312 shall be conducted at the continued meeting and no further advertisement is required.

(Ord. No. 09-09, 8-13-09; Ord. No. 15-22, 10-8-15; Ord. No. 18-08, 10-11-18)

The zoning administrator shall have the authority, as qualified below, to grant an administrative variance to approve a reduction in yard requirements in the case of any existing or partially constructed building which does not comply with the yard requirements that were applicable at the time a building permit was issued for construction of such building. Such reduction may be approved by the zoning administrator, in writing, if the requirements of either subsections (1)a. or (1)b. below have been met; however, the zoning administrator shall have the authority to refer the request to the board of zoning appeals in lieu of making an administrative determination.

(1)

Criteria for approving an administrative variance to reduce yard regulations based on errors in building location:

a.

Buildings for which a building permit was issued on or after March 12, 1987:

1.

The encroachment does not exceed one linear foot; and

2.

The noncompliance was done in good faith, or through no fault of the property owner, or was the result of an error in the location of the building subsequent to the issuance of a building permit for construction of such building, if such permit was required; and

3.

Compliance with the minimum setback and yard requirements would cause undue hardship upon the owner; and

4.

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

5.

The requested variance will not be of substantial detriment to adjacent property; and

6.

The character of the zoning district will not be changed by granting the variance; and

7.

The granting of the variance will not create an unsafe condition with respect to adjacent properties and public streets; and

8.

The reduction in yard requirements will not result in an increase in density or floor area ratio above that permitted by the applicable zoning district regulations in force at the time of the variance request.

b.

Buildings for which a building permit was issued prior to March 12, 1987:

1.

No objection has been filed with the zoning administrator as regards such encroachment; and

2.

The encroachment does not exceed five linear feet; and

3.

The requested variance will not be of substantial detriment to the use and enjoyment of adjacent; and

4.

The character of the zoning district will not be changed by granting the variance.

(2)

In approving such a reduction under the provisions of this section, the zoning administrator shall allow only the reduction necessary to provide reasonable relief and may prescribe such conditions, including landscaping and screening measures, to assure compliance with the intent of this section.

(3)

Upon the approval of a reduction for a particular building in accordance with the provisions of this section, the same shall be deemed to be a conforming building.

(4)

Prior to the granting of a variance, the zoning administrator shall give all adjacent property owners written notice of the requested variance, and an opportunity to respond to the request within 21 days of the date of the notice. If any adjoining property owner objects in writing to said request within the time specified above, the request shall be referred to the board of zoning appeals for a decision. The applicant shall pay any required application fee.

(5)

In accordance with the provision set forth in subsection 21-97(c), the applicant shall have 30 days in which to appeal a decision made under section 21-97.1.

(Ord. No. 09-09, 8-13-09)

(a)

An appeal to the board may be taken by any person aggrieved or by an officer, department, board or bureau of the city 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 this chapter or any ordinance adopted pursuant thereto. Any written notice of a zoning violation or a written order of the zoning administrator shall include a statement informing the recipient that he may have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within 30 days. Such notice shall also include a statement of the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal. The appeal period shall not commence until the statement is given. A written notice of a zoning violation or a written order of the zoning administrator that includes such statement sent by registered or certified mail to, or posted at, the last known address of the property owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall be deemed sufficient notice to the property owner and shall satisfy the notice requirements of this section. The appeal shall be taken within 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 from was taken. The fee for filing an appeal shall not exceed the costs of advertising the appeal for public hearing and reasonable costs.

(b)

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.

(c)

In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by any zoning administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer or through fraud. The 60-day limitation period shall not apply in any case where, with the concurrence of the attorney for the governing body, modification is required to correct clerical or other nondiscretionary errors.

(Ord. No. 09-09, 8-13-09; Ord. No. 11-10, 6-9-11)

(a)

All applications or appeals to the board shall be made to the zoning administrator, and shall be accompanied by a filing fee in the amount listed on the fee schedule adopted by city council.

(b)

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 90 days of the filing of the application or appeal. In exercising its powers 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 members of the board present and voting 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 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 chairperson of the board, or, if absent, the acting chairperson, may administer oaths and compel the attendance of witnesses.

(c)

In any appeal taken pursuant to this section, if the board's attempt to reach a decision results in a tie vote, the matter may be carried over until the next scheduled meeting at the request of the person filing the appeal.

(Ord. No. 09-09, 8-13-09; Ord. No. 11-10, 6-9-11; Ord. No. 12-34, 12-13-12)

Where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of this chapter, by suit filed within 15 days after the start of construction by a person who had no actual notice of the issuance of the permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the zoning administrator to the board.

(Ord. No. 09-09, 8-13-09)

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 city, may file with the clerk of 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 Williamsburg" specifying the grounds on which aggrieved within 30 days after the final decision of the board.

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 secretary of the board of zoning appeals or, if no secretary exists, the chair of the board of zoning appeals, 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 board and on due cause shown, grant a restraining order.

Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required by this section. The governing body, the landowner, and the applicant before the board of zoning appeals 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 board of zoning appeals.

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 the portions thereof as may be called for by the 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.

The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

In the case of an appeal from the board of zoning appeals to the circuit court of an order, requirement, decision or determination of a zoning administrator or other administrative officer in the administration or enforcement of any ordinance or provision of state law, or any modification of zoning requirements pursuant to Code of Virginia, § 15.2-2286, the findings and conclusions of the board of zoning appeals 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 board of zoning appeals, that the board of zoning appeals erred in its decision. Any party may introduce evidence in the proceedings in the court. The court shall hear any arguments on questions of law de novo.

In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted an application for a variance, the decision of the board of zoning appeals 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 board of zoning appeals, that the board of zoning appeals erred in its decision.

In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted application for a special exception, the decision of the board of zoning appeals shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that the board of zoning appeals applied erroneous principles of law, or where the discretion of the board of zoning appeals is involved, the decision of the board of zoning appeals was plainly wrong, was in violation of the purpose and intent of the zoning ordinance, and is not fairly debatable.

In the case of an appeal from the board of zoning appeals to the circuit court of a decision of the board, any party may introduce evidence in the proceedings in the court in accordance with the Rules of Evidence of the Supreme Court of Virginia.

Costs shall not be allowed against the locality, unless it shall appear to the court that it acted in bad faith or with malice. 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 or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making the return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the locality may request that the court hear the matter on the question of whether the appeal was frivolous.

(Ord. No. 09-09, 8-13-09; Ord. No. 11-10, 6-9-11; Ord. No. 15-22, 10-8-15)