20-1-1

There shall be created a Board of Zoning Appeals, which shall consist of five residents of the City, appointed by the Circuit Court of the City. 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. The Secretary of the Board shall notify the Court at least 30 days in advance of the expiration of any terms of office, and shall notify the Court promptly if any vacancies occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be re-appointed 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.

20-1-2

With the exception of its secretary, the Board shall elect from its own membership its officers, who serve annual terms as such 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. Except for matters governed by Code of Virginia, § 15.2-2312, as amended, no action of the board shall be valid unless authorized by a majority vote of those present and voting. The Board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the county or municipality and general laws of the Commonwealth. 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 each year.

(10/11/83, Case 83-06, Ord. No. 034-83; 7/15/09, Case TA-09-66, Ord. No. 2009-18; 9/14/10, Case TA-10-334, Ord. No. 2010-39)

20-1-3

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. Any Board member may be removed for malfeasance, misfeasance, or nonfeasance in office, or for other just cause, by the court which appointed him, after hearing is held after at least 15 days' notice.

20-1-4

Alternate members. At the request of the Common Council of the City of Winchester, the Circuit Court of the City may appoint not more than three 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 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.

(7/15/09, Case TA-09-66, Ord. No. 2009-18)

20-2-1

The Board of Zoning Appeals shall have the following powers and duties:

20-2-2

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 pursuant thereto. 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 Article.

(9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-2-3

To grant upon appeal or original application in specific cases a variance, 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, provided below:

(9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-2-3.1

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 related to the property or improvements thereon at the time of the effective date of the ordinance, and:

A.

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;

B.

The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area;

C.

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;

D.

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,

E.

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

(7/15/09, Case TA-09-66, Ord. No. 2009-18, 9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-2-3.2

Repealed.

(9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-2-3.3

Repealed.

(10/13/92, Case TA-92-02, Ord. No. 016-92)

20-2-3.4

Repealed.

(9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-2-3.5

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.

(9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-2-4

To hear and decide appeals from the decision of the Zoning Administrator after notice and hearing as provided in this Article.

(10/13/92, Case TA-92-02, Ord. No. 016-92, 9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-2-5

Repealed.

(9/13/05, Case TA-05-03-05, Ord. No. 026-2005)

20-2-6

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 owner of the property affected by any such question, and after public hearing with notice, the Board may interpret the map in such way as to carry out the intent and purpose of the ordinance 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 the Ordinance.

(3/15/88, Case TA-87-17, Ord. No. 014-88; 10/13/92, Case TA-92-02, Ord. No. 016-92, 9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-3-1

An application or appeal to the Board may be taken by any person aggrieved or by any officer, department, board, or bureau of the locality affected by any decision of the Administrator or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this Ordinance, or any modification of zoning requirements pursuant to Code of Virginia, § 15.2-2286. Notwithstanding any charter provision to the contrary and violations provided in Section 20-2-3, any written notice of a zoning violation or a written order of the Administrator dated on or after July 1, 1993, 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 Code of Virginia, § 15.2-2311, as amended, and that the decision shall be final and unappealable if not appealed within 30 days. The zoning violation or written order shall include 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 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 application or appeal shall be taken within 30 days after the decision appealed from by filing with the Administrator, and with the Board, a notice of appeal specifying the grounds thereof.

The 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 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 Administrator and for good cause shown.

(10/13/92, Case TA-92-02, Ord. No. 016-92; 9/14/10, Case TA-10-334, Ord. No. 2010-39, 9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-3-2

All applications or appeals to the Board shall be made to the Administrator on a form provided for such purpose, and shall be accompanied by a filing fee as per Section 23-8, evidence of delinquent tax payment per Section 23-9, and disclosure of real party interest per Section 23-10 of this Ordinance. The fee for filing an appeal shall not exceed the costs of advertising the appeal for public hearing and reasonable costs. Except as provided for below, the time period for appeal shall be no less than 30 days from the date of receipt of the Notice of Violation sent by the Administrator, pursuant to Code of Virginia, § 15.2-2311 and § 15.2-2286 et seq.:

(3/13/90, Case TA-89-12, Ord. No. 008-90; 10/13/92, Case TA-92-02, Ord. No. 016-92; 8/16/02, Case TA-02-04, Ord. No. 014-2002; 3/11/09, Case TA-08-14, Ord. No. 2009-09; 9/14/10, Case TA-10-334, Ord. No. 2010-39; 9/22/15, Case TA-15-376, Ord. No. 2015-17)

a.

An appeal period of ten days shall be provided for violations of this Ordinance pertaining to maximum occupancy of residential dwellings.

b.

Any violation of Sections 18-8-12.1 through 18-8-12.3, pertaining to temporary signs.

c.

Any violation of Sections 18-9-5 through 18-9-5.4, pertaining to yard sales.

d.

Any violation of Section 18-12, pertaining to visual obstructions.

e.

Any violation of Section 18-17, pertaining to mobile storage units and temporary events.

20-3-3

Public notice and hearing. No such applications or appeals shall be considered by the Board except after notice and hearing as per Section 23-7-1 of this Ordinance. Written notice shall be provided per Section 23-7-2 of this Ordinance. For the hearing by the Board, the applicant shall place notification signage as per Section 23-7-3 of this Ordinance. The Board shall fix a reasonable time for the hearing of an application or appeal, and decide the same within 60 days of receipt of application or appeal made in compliance with this Ordinance. In exercising its powers, the Board may reserve or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from. The concurring vote of three members shall be necessary to reserve any other requirement, decision, or determination of any administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under the Ordinance or to effect any variance from the Ordinance. 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.

(3/15/88, Case TA-87-17, Ord. No. 014-88; 10/13/92, Case TA-92-02, Ord. No. 016-92)

20-3-4

Where a building permit has been issued and the construction of the building for which such permit is subsequently sought to be prevented, restrained, corrected, or abated as a violation of the Zoning Ordinance, 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 Administrator to the Board of Zoning Appeals.

(9/22/15, Case TA-15-376, Ord. No. 2015-17)

20-4-1

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

20-4-2

Any materials relating to a particular case, including a staff recommendation or report furnished to a member of the board, shall be made available without cost to such applicant, appellant or other person aggrieved under Code of Virginia, § 15.2-2314, 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 § 15.2-2314 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. Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to subsection F of § 2.2-3707.

20-4-3

For the purposes of this section, "non-legal staff of the governing body" means any staff who is not in the office of the attorney for the locality, or for the board, or who is appointed by special law or pursuant to Code of Virginia, § 15.2-1542. 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.