§ 1-1016. Conditional zoning.

A.

In order to provide a more flexible and adaptable zoning method to permit differing land uses and to recognize effects of change, conditional zoning is permitted. That is, a zoning reclassification may be allowed subject to certain conditions proffered by the zoning applicant for the protection and well-being of the community that are not generally applicable to land similarly zoned.

B.

For purposes of this section, the following terms shall have the meanings set forth as follows:

New residential development\ means any construction or building expansion on residentially zoned property, including a residential component of a mixed-use development, that results in either one (1) or more additional residential dwelling units or, otherwise, fewer, residential dwelling units, beyond what may be permitted by right under the then-existing zoning of the property, when such new residential development requires a rezoning or proffer condition amendment.

New residential use\ means any use of residentially zoned property that requires a rezoning or that requires a proffer condition amendment to allow for new residential development.

Offsite proffer\ means a proffer addressing an impact outside the boundaries of the property to be developed and shall include all cash proffers.

Onsite proffer\ means a proffer addressing an impact within the boundaries of the property to be developed and shall not include any cash proffers.

Proffer condition amendment\ means an amendment to an existing proffer statement applicable to a property or properties.

Public facilities\ means public transportation facilities, public safety facilities, public school facilities, or public parks.

Public facility improvement\ means an offsite public transportation facility improvement, a public safety facility improvement, a public school facility improvement, or an improvement to or construction of a public park. No public facility improvement shall include any operating expense of an existing public facility, such as ordinary maintenance or repair, or any capital improvement to an existing public facility, such as a renovation or technology upgrade, that does not expand the capacity of such facility. For purposes of this definition, the term "public park" shall include playgrounds and other recreational facilities.

Public safety facility improvement\ means construction or new law enforcement, fire, emergency medical, and rescue facilities or expansion of existing public safety facilities, to include all buildings, structures, parking, and other costs directly related thereto.

Public school facility improvement\ means construction of new primary and secondary public schools or expansion of existing primary and secondary public schools, to include all buildings, structures, parking, and other costs directly related thereto.

Public transportation facility improvement\ means (i) construction of new roads; (ii) improvement or expansion of existing roads, and related appurtenances as required by applicable standards of the Virginia Department of Transportation; and (iii) construction, improvement, or expansion of buildings, structures, parking, and other facilities directly related to transit.

Residentially zoned property\ means property zoned or proposed to be zoned for either single-family or multifamily housing.

C.

The owner of land seeking a rezoning may provide, by voluntarily proffering in writing, reasonable conditions as part of the application for rezoning, for which such conditions or proffers are in addition to the regulations provided for the zoning district. Proffered conditions shall constitute a part of the rezoning or amendment to the zoning map and shall remain in effect even if the property is sold.

1.

Conditional uses may be considered as a permitted use and granted by the board of supervisors when included as a part of a conditional zoning amendment, and shall not require a separate conditional use permit application.

D.

The terms of all proffered conditions must be submitted in writing by the owner ten (10) days prior to a public hearing before the board of supervisors provided that the conditions are in accordance with the following:

1.

The rezoning itself gives rise to the need for the conditions;

2.

Such conditions have a reasonable relation to the rezoning; and;

3.

All such conditions are in conformity with the Isle of Wight County Comprehensive Plan.

E.

The zoning administrator shall have sole authority to meet with any applicant to discuss proffered conditions. No such meeting with the zoning administrator shall occur without the presence of the county attorney to ensure compliance with the restrictions set forth in Section 15.2-2303.4 of the Code of Virginia (1950, as amended).

F.

For new residential developments and new residential uses submitted after July 1, 2016, the determination as to reasonableness and acceptability of voluntary proffers will be evaluated by the planning commission and board of supervisors based upon the following criteria:

1.

The voluntary proffer addresses an impact that is specifically attributable to the proposed new residential development or other new residential use applied for; and

2.

The voluntary offsite proffer addresses an impact to an offsite public facility, such that (a) the new residential development or new residential use creates a need, or an identifiable portion of a need, for one (1) or more public facility improvements in excess of existing public facility capacity at the time of the rezoning or proffer conditions amendment; and (b) each such new residential development or new residential use applied for receives a direct and material benefit from a proffer made with respect to any such public facility improvements. For purposes of this subsection, the planning commission and board of supervisors may base their assessment of public facility capacity on the projected impacts specifically attributable to the new residential development or new residential use.

G.

There shall be no amendment or variation of proffered conditions as part of an approved rezoning until after a public hearing before the board of supervisors advertised pursuant to the provisions of this ordinance. However, where an amendment to the proffered conditions is requested by the applicant, and where such amendment does not affect conditions of use or density, the board of supervisors may waive the requirements of a public hearing. Once so amended, the proffered conditions shall continue to be an amendment to the ordinance and may be enforced by the zoning administrator pursuant to the provisions of the ordinance.

H.

The zoning administrator is vested with all necessary authority on behalf of the governing body of the locality to administer and enforce conditions attached to a rezoning or amendment to a zoning map. Any zoning applicant or any other person who is aggrieved by a decision of the zoning administrator may petition the governing body for review of the decision of the zoning administrator. All petitions for review shall be filed with the zoning administrator and with the clerk of the governing body within thirty (30) days from the date of the decision for which review is sought and shall specify the grounds upon which the petitioner is aggrieved. A decision by the governing body on an appeal taken pursuant to this section shall be binding upon the owner of the property which is the subject of such appeal only if the owner of such property has been provided written notice of the zoning violation, written determination, or other appealable decision. An aggrieved party may petition the circuit court for review of the decision of the governing body on an appeal taken pursuant to this section. Every action contesting a decision of the local governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception shall be filed within thirty (30) days of the decision with the Isle of Wight County Circuit Court. Nothing herein shall be construed to create any new right to contest the action of the local governing body. (7-7-05; 9-24-09; Ord. No. 2011-1-C, 1-6-11; Ord. No. 2013-3-C, 4- 18-13; 10-20-16; 7-19-18; 7-18-19.)