Pursuant to the requirements of title 15.2, Code of Virginia, there is hereby established a Board of Zoning Appeals for the County of York, Virginia.

The board of zoning appeals shall consist of five (5) residents of the county, one (1) of whom may be a member of the planning commission, each to be appointed by the judge of the county circuit court. The terms of office, organization, and procedures of this board shall be in accordance with the provisions established by section 15.22308, Code of Virginia.

(Ord. No. 05-34(R), 12-20-05)

The board of zoning appeals shall have all the powers and duties as prescribed in section 15.2-2309, Code of Virginia, and as set forth below:

(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 any amendment thereto or any modification of zoning requirements pursuant to section 24.1-902. 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 Section 15.2-2309 of the Code of Virginia, 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, 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 and the criteria set out in Section 15.2-2309 of the Code of Virginia.

(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, 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 the granting of a special use permit by the board of supervisors or the process for modification of a zoning ordinance pursuant to Section 24.1-113 of this chapter at the time of the filing of the variance application.

(2)

In accordance with section 15.2-2309, Code of Virginia, in granting a variance, the board of zoning appeals 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 performance guarantee to ensure that the conditions imposed are being and will continue to be complied with.

(3)

Notwithstanding any other provision of law, general or special, any deviation from the normally applicable regulations of this chapter that is approved by the authorization of a variance shall thereafter be considered a conforming feature of the property. However, any construction authorized by such variance shall be allowed to expand further only to the extent that such expansion conforms with all applicable requirements of this chapter. Any expansion proposed within an area of the site or part of the structure which does not conform to all applicable zoning standards shall be permitted only if authorized by approval of another variance request.

(c)

To hear and decide applications for interpretation of the zoning map where there is any uncertainty as to the location of a district boundary.

(d)

None of the provisions of this section shall be construed as granting the board of zoning appeals the power to reclassify property or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by the board of supervisors.

(Ord. No. 01-20(R), 10-16-01; Ord. No. 05-34(R), 12-20-05; Ord. No. 08-17(R), 3-17-09; Ord. No. 15-12, 9-15-15)

(a)

Pursuant to section 15.2-2286.A.4, Code of Virginia, the zoning administrator may authorize a modification from any provision contained in this chapter with respect to physical requirements on a lot or parcel of land, including but not limited to size, height, location or features of or related to any building, structure or improvements, upon finding in writing all of the following:

(1)

The strict application of the chapter would produce undue hardship;

(2)

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

(3)

The authorization of the modification will not be of substantial detriment to adjacent property and the character of the zoning district will not be changed by the granting of the modification.

(b)

Prior to the granting of a modification, the zoning administrator shall give, or require the applicant to give, all adjoining property owners written notice of the request for modification, and an opportunity to respond to the request within twenty-one (21) days of the date of the notice. Notice shall be sent by first class mail and an affidavit of such mailing shall be kept in the file, or the applicant may personally deliver the notice to the adjacent property owners and request their written verification of receipt.

(c)

The zoning administrator shall make a decision on the application for modification and issue a written decision with a copy provided to the applicant and any adjoining landowner who responded in writing to the notice provided pursuant to this section. The decision of the zoning administrator shall constitute a decision within the purview of section 24.1-901 and may be appealed to the board of zoning appeals as prescribed by that section. Decisions of the board of zoning appeals may be appealed to the circuit court as provided by section 24.1-904.

(Ord. No. 05-34(R), 12-20-05)

(a)

Variances and interpretations of the zoning map. Applications for variances as described in section 24.1-901, may be made by any property owner, tenant, government official, department, board or bureau. Such application, and accompanying maps, plans or other information, shall be made to the secretary of the board of zoning appeals who shall place the item on the docket to be acted on by the board of zoning appeals after public notice and hearing as required by section 15.2-2204, Code of Virginia.

(b)

Appeals of administrative decisions. An appeal to the board of zoning appeals may be made by any person aggrieved or by any officer, department, board or bureau of the county affected by any decision of the zoning administrator or from any other requirement, decision or determination made by any other administrative officer in the administration or enforcement of this chapter. Such appeal shall be made within thirty (30) days after the decision appealed from by filing with the secretary of the board of zoning appeals an application and a notice of appeal specifying the grounds thereof; provided, however, that any appeal from a notice of violation involving temporary or seasonal commercial uses (reference section 24.1-306, Category 8), parking of commercial trucks in residential zoning districts (reference section 24.1-271) maximum occupancy limitations of a residential dwelling unit, or other situations which in the opinion of the Zoning Administrator constitute a series of similar short-term, recurring violations shall be made within ten (10) days. The secretary shall forthwith transmit to the board of zoning appeals all the papers constituting the record upon which the appealed action was taken. An appeal shall stay all proceedings in furtherance of the appealed action unless the zoning administrator certifies to the board of zoning appeals that, by reason of facts stated in such certificate, a stay would, in the administrator's 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 of zoning appeals or by a court of record, on application and on notice to the administrator for good cause shown.

(c)

Process. The board of zoning appeals shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties in interest, and, except when the applicant concurs in a further delay, decide the same within sixty (60) days of the first regularly scheduled meeting for which the matter is on the docket. In exercising its powers, the board of zoning appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, or may remand the issue to the zoning administrator for further consideration in which case a specific time for such further consideration shall be stipulated. No action of the board of zoning appeals shall be valid unless authorized by a majority of those present and voting, except that the concurring vote of a majority of the membership of the board of zoning appeals 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 this chapter. 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. The board of zoning appeals shall keep minutes of its proceedings and other official actions which shall be filed with the zoning administrator and shall be public records. The chair of the board of zoning appeals, or the acting chair, may administer oaths and compel the attendance of witnesses.

(d)

Reconsideration. When the board of zoning appeals has acted on an application or appeal, substantially the same application or appeal shall not be considered by the board of zoning appeals within one (1) year of the date of action, except by unanimous vote of the membership of the board of zoning appeals.

(Ord. No. 01-20(R), 10-16-01; Ord. No. 09-15, 8-18-09; Ord. No. 12-15, 9-18-12)

Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the county may file with the county circuit court a petition that shall be styled "In Re: [date] Decision of the Board of Zoning Appeals of York County" specifying the grounds on which aggrieved within thirty (30) days after the final decision by the board of zoning appeals. The court shall review and decide on such petition in accordance with the provisions established by section 15.2-2314, Code of Virginia.

(Ord. No. 01-20(R), 10-16-01; Ord. No. 10-24, 12-21-10)