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 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.
[Amended 7-9-2015]
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 § 15.2-2201, 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 Code of Virginia § 15.2-2201 and the criteria set
out in this section.
[Amended 7-9-2015]
(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 article 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 article, 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 article;
(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 article
pursuant to subsection 6 of Code of Virginia § 15.2-2309 or the
process for modification of a zoning ordinance pursuant to subsection
A4 of Code of Virginia § 15.2-2286 at the time of the filing
of the variance application.
(2)
No such variance shall be considered except after notice and
hearing 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.
(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.
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 § 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 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 any
such question, and after public hearing with notice as required by
§ 15.2-2204, the Board may interpret the map in such way
as to carry out the intent and purpose of this 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 ordinance.
E. No provision of this section shall be construed as granting any board
the power to rezone property.
F. To hear and decide applications for special exceptions as may be
authorized in this chapter. 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 guaranty 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 § 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.
G. To revoke a special exception 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 § 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.
The Board shall, within 60 days from the receipt of a completed
application, fix a 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. In exercising its powers,
the Board may reverse or affirm, wholly or partly, or may modify the
order, requirement, decision or determination of an administrative
officer or decide in favor of the applicant on any matter upon which
it is required to pass under this chapter or 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,
in his or her absence, the Acting Chairperson may administer oaths
and compel the attendance of witnesses.