§ 1-1019. Provisions for appeals, variances, and interpretations.
A.
Boards of zoning appeals generally.
(1)
A board of zoning appeals, as provided for in Section 15.2-2308 of the Code of Virginia (1950), as amended, consisting of five (5) residents of the County of Isle of Wight, shall be appointed by the circuit court judge of the County of Isle of Wight.
(2)
The terms of office shall be for five (5) years provided, however, that the members serving on the board of zoning appeals on the effective date of this ordinance shall continue on such board and shall serve for their remaining respective terms. The secretary of the board of zoning appeals shall notify the court at least thirty (30) days in advance of the expiration of any term of office, and shall also notify the court promptly if any vacancy occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves. Members of the board shall hold no other public office in the County of Isle of Wight except that one (1) may be a member of the planning commission of the County of Isle of Wight. A member whose term expires shall continue to serve until his successor is appointed and qualifies.
(3)
The board shall elect from its own membership its officers who shall serve annual terms as such and may succeed themselves. For the conduct of the hearing and the taking of any action, the quorum shall not be 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 the ordinances of the County of Isle of Wight and the general laws of the Commonwealth of Virginia. The board shall keep a full public record of its proceedings and shall submit a report of its activities to the governing body at least once each year.
(4)
Within the limits of funds appropriated by the governing body, the board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the board may receive such compensation as may be authorized by the governing body.
(5)
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 a hearing held following at least fifteen (15) days' notice.
B.
Powers of the board of zoning appeals. .....The board of zoning appeals shall have the following powers and duties:
(1)
To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this article or of any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the board's judgement 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.
(2)
Notwithstanding any other provision of law, general or special, to grant upon appeal or original application in specific cases a variance, 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 this section. 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 a special exception process that is authorized in the ordinance pursuant to Section 15.2-2309 of the Code of Virginia or the process for modification of a zoning ordinance pursuant to Section 15.2-2286 of the Code of Virginia at the time of the filing of the variance application.
No variance shall be considered except after notice and hearing as required by Section 15.2-2204 of the Code of Virginia. 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. 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.
(3)
To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by Section 15.2-2204 of the Code of Virginia. 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.
(4)
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 owners of the property affected by the question, and after public hearing with notice as required by Section 15.2-2204 of the Code of Virginia, 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. 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 ordinance.
(5)
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.
(6)
To hear and decide applications for special exceptions as may be authorized in the ordinance. The board may impose such conditions relating to the use for which a permit is granted as it may deem 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. No special exception may be granted except after notice and hearing as provided by Section 15.2-2204 of the Code of Virginia. 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.
(7)
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 Section 15.2-2204 of the Code of Virginia. 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. If a governing body reserves unto itself the right to issue special exceptions pursuant to Section 15.2-2286 of the Code of Virginia, and, if the governing body determines that there has not been compliance with the terms and conditions of the permit, then it may also revoke special exceptions in the manner provided.
(8)
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 Section 15.2-2312 [of the Code of Virginia] shall be conducted at the continued meeting and no further advertisement is required.
C.
Appeals.
(1)
An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the county or municipality 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 article or any ordinance adopted pursuant thereto. Any written notice of a zoning violation or a written order of the zoning 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 thirty (30) days in accordance with this section, and that the decision shall be final and unappealable if not appealed within thirty (30) days. The appeal period shall not commence until such statement is given. Such appeal shall be taken within thirty (30) days after the decision appealed from by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
(2)
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 permit 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.
(3)
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 sixty (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 sixty-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 errors.
(4)
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.
D.
Variances.
(1)
The board of zoning appeals is authorized to grant variances from the strict application of these regulations when a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of this ordinance, or where by reason of exceptional topographic conditions or extraordinary situation or condition of such piece of property, or of the use or development of property immediately adjacent thereto, the strict application of the terms of this ordinance would unreasonably restrict the utilization of the property, as distinguished from a special privilege or convenience sought by the applicant; provided, that all variances shall not be contrary to the purpose of this ordinance.
(2)
The board of zoning appeals shall not authorize a variance unless it finds:
(A)
That the strict application of this ordinance would unreasonably restrict the utilization of the property;
(B)
That such restriction is not shared generally by other properties in the same zoning district and the same vicinity;
(C)
That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance;
(D)
No such variance shall be authorized except after notice and hearing as required by Sections 15.2-2204(A), 15.2-431 of the Code of Virginia (1950), as amended.
(E)
No variance shall be authorized unless the board of zoning appeals finds that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this ordinance.
(F)
In authorizing a variance, the board of zoning appeals may impose such conditions regarding the location, character, and other features of the proposed structure for use as it may deem necessary in the public interest, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.
(G)
A variance may be issued for a specified duration or an indefinite duration.
(H)
The granting of a variance does not exempt the applicant from complying with all other requirements of this ordinance or any applicable county, state, or federal law.
(3)
Whenever the board of zoning appeals disapproves an application for a variance on any basis other than the failure of the applicant to submit a complete application, such action may not be reconsidered by the respective board for a period of one (1) year unless the applicant clearly demonstrates that:
(A)
Circumstances affecting the property which is the subject of the application have substantially changed; or
(B)
New information is available that could not with reasonable diligence have been presented at a previous hearing. A request to be heard on this basis must be filed with the zoning administrator. Such a request does not extend the period within which an appeal must be taken.
(C)
The board of zoning appeals may at any time consider a new application affecting the same property as an application previously denied. A new application is one that differs in some substantial way from the one previously considered, as determined by the zoning administrator.
(4)
The burden of presenting evidence sufficient to allow the board of zoning appeals to reach a favorable conclusion, as well as the burden of persuasion on those issues referenced herein, remains the responsibility of the applicant seeking the variance.
E.
Interpretations.
(1)
The board of zoning appeals is authorized to interpret the zoning map and to pass upon disputed questions of lot or zoning boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the zoning administrator, they shall be handled as provided in subsection 1-1019.C, appeals.
(2)
An application for a map interpretation shall be submitted to the board of zoning appeals by filing a copy of the application with the zoning administrator. The application shall contain sufficient information to enable the board to make the necessary interpretation.
(3)
Where uncertainty exists as to the boundaries of zones as shown on the official zoning map, the following rules shall apply:
(A)
Boundaries indicated as approximately following the centerline of alleys, streets, highways, streams, or railroads shall be construed to follow such centerline.
(B)
Boundaries indicated as approximately following lot lines, corporate limits of a municipality and county boundary lines shall be construed as following such lines, limits or boundaries.
(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 following such shorelines.
(D)
Where a zoning boundary divides a lot or where distances are not specifically indicated on the official zoning map, the boundary shall be determined by measurement, using the scale of the official zoning map.
(E)
Where any street or alley is hereafter officially vacated or abandoned, the regulations applicable to each parcel of abutting property shall apply to that portion of such street or alley added thereto by virtue of such vacation or abandonment.
(4)
Interpretations of the location of floodway and floodplain boundary lines or boundaries shall be made by the zoning administrator.
F.
Hearing required on appeals and variances.
(1)
Before making a decision on an appeal or an application for a variance, the board of zoning appeals shall hold a hearing on the appeal or application and shall give due notice to the parties of interest a public notice as required by Sections 15.2-431, 15.2-2204(A) of the Code of Virginia (1950), as amended.
(2)
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 decide the same within ninety (90) days of the filing of the application or appeal. In exercising its powers the board may reserve or affirm, wholly or partly, or may modify an order, requirement, decision or determination appealed from. The concurring vote of a majority of the membership of the board members shall be necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under 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 zoning administrator and shall be public record. The chairman of the board, or in his absence the vice-chairman, may administer oaths and compel the attendance of witnesses.
(3)
The hearing shall be open to the public and all people aggrieved by the outcome of the appeal or application shall be given an opportunity to present testimony and ask questions of persons who testify.
(4)
The board of zoning appeals may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made. In no event shall a continuance of the hearing extend the time frame for rendering a decision beyond the maximum days permitted by statute and subsection F(2), hearing required on appeals, and variances of this ordinance.
G.
Appeal of decision of board of zoning appeals.
(1)
Any person or persons jointly or severally aggrieved by a decision of the board of zoning appeals, or any taxpayer or any officer, department, board or bureau of the county may present to the Circuit Court of the County of Isle of Wight a petition specifying the grounds on which aggrieved within thirty (30) days after the final decision by the board of zoning appeals.
(2)
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 realtor's attorney, which shall not be less than ten (10) days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.
(3)
The board of zoning appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the ground of the decision appealed from and shall be verified.
(4)
The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
(5)
Costs shall not be allowed against the board, unless it shall appear to the court that it acted in bad faith or with malice in making the decision appealed therefrom.
H.
Taxes and fees must be paid.
(1)
Taxes. .....All real estate taxes and any outstanding fees or charges must be current at such time an application is submitted for all variance or appeal.
(2)
Fees. .....An application for a variance or appeal shall be accompanied by the prescribed application fee in accordance with Table 3 (Isle of Wight County Fee Schedule). No application shall be considered complete until the fee is paid.
(3)
Fees for engineering/consultant review. .....If, in the discretion of the county review of any request for a variance or appeal by any outside engineering firm or other consultant expert in the field of the request is deemed necessary, the landowner/applicant shall be required to pay the fee for such review prior to consideration of the request by the county. (7-7-05; 9-24-09; Ord. No. 2011-14-C, 8-4-11; Ord. No. 2013-3-C, 4-18-13; 11-19-15; 7-19-18.)