[Amended 9-25-1978]
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A. 
No buildings or structures shall be constructed, repaired, reconstructed, enlarged or altered, nor shall any uses of land be established, until after a zoning permit has been obtained from the Administrator.
B. 
Each application for a zoning permit shall be accompanied by three copies of an adequately dimensioned drawing, unless as otherwise specified by the Administrator. The drawing shall show the size and shape of the parcel of land on which the proposed building is to be constructed, the nature of the proposed use of the building or land, such building or use with respect to the property line of such parcel of land and to the right-of-way of any street or highway adjoining such parcel of land, the developer's drainage plan for properly distributing surface water and additional information as required by this chapter. Any other information which the Administrator may deem necessary for the consideration of the applicant may be required. If the proposed building or use is in conformity with the provisions of this chapter, a permit shall be issued to the applicant by the Administrator. One copy of the drawing shall be returned to the applicant with the permit.
C. 
Nothing contained in this section shall require any change in the plans or construction of any building or structure for which a permit was granted prior to the effective date of this chapter. However, such construction must commence within 30 days after this chapter becomes effective and be completed within a period of one year after construction is initiated. If construction is discontinued for a period of six months or more, further construction shall be in conformity with the provisions of this chapter for the district in which the operation is located.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
Land may be used or occupied, and buildings which have been structurally altered or erected may be used or changed in use, only after a certificate of occupancy has been issued by the Administrator. Such a certificate shall state that the building or the proposed use, or the use of the land, complies with the provisions of this chapter. A similar certificate shall be issued for the purpose of maintaining, renewing, changing or extending a nonconforming use. A certificate of occupancy either for the whole or a part of a building shall be applied for simultaneously with the application for a zoning permit. The certificate of occupancy shall be issued within 10 days after the erected building or structural alteration of such building or part has been completed in conformity with the provisions of this chapter.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
Where uses are permitted by special permit, the location and beginning of such uses shall require, in addition to the zoning permit and certificate of occupancy, a special use permit. Such permit shall be subject to review and recommendation of the Town Planning Commission and approval of the Town Council. These permits shall be subject to such conditions as required in this chapter and those that the Town Council upon recommendation of the Planning Commission deems necessary to carry out the intent of this chapter. Application for such permit shall be made to the Administrator, who shall issue such permit only after approval by Council. A public hearing in accordance with § 15.2-2204 of the Code of Virginia shall be held for all uses permitted by special permit. Such permits shall be issued in accordance with the following regulations:
A. 
Such use shall be one which is specifically authorized as a special permit in the zoning district wherein the applicant seeks such permit.
B. 
Such permits shall only be granted subject to any applicable condition and safeguard as required by this chapter.
C. 
Such permit may be granted subject to additional reasonable conditions and safeguards as may be deemed by the Town Council to be advisable, appropriate or necessary in the public interest. Such additional conditions may be recommended by the Planning Commission.
D. 
Such use shall be found by the Town Council to be in harmony with the general purposes and intent of this chapter.
E. 
Such use shall not adversely affect the character of the zoning district, the conservation of property values or the health and safety of residents or workers on adjacent properties and in the general neighborhood.
F. 
Such uses shall be of such size and so located and laid out in relation to access streets that vehicular and pedestrian traffic to and from such use will not create undue congestion or hazards prejudicial to the general neighborhood.
G. 
Such use shall not conflict with development in accordance with any Comprehensive Plan or portion thereof which has been adopted by the Town Council.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A. 
The Town Council shall establish, by resolution, a schedule of fees, charges and expenses and collection procedures for zoning permits, certificates of occupancy, special permits, variances, appeals, amendments and other matters pertaining to this chapter.
B. 
The schedule of fees shall be available for inspection in the office of the Zoning Administrator and may be altered or amended by the Town Council by resolution. Until all application fees, charges and expenses have been paid in full, no action shall be taken on any application or appeal.
[Amended 10-11-2011; at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A. 
Appointment; composition; compensation; vacancies. A Board of Zoning Appeals consisting of five members shall be appointed by the Circuit Court of the County. The Board shall serve without pay, other than for traveling expenses, and members shall be removable for cause upon written charges and after a public hearing. Appointments for vacancies occurring otherwise than by expiration of term shall in all cases be for the unexpired term.
B. 
Terms; one member to be member of Planning Commission. The term of office shall be for five years, except that, of the first five members appointed, one shall serve for five years, one for four years, one for three years, one for two years and one for one year. One of the five appointed members shall be an active member of the Planning Commission.
C. 
Removal of members. Members may be removed for cause by the appointing authority upon written charges and after a public hearing.
D. 
Conflicts of interest. Any member of the Board shall be disqualified to act upon a matter before the Board with respect to property in which the member has an interest.
E. 
Officers. The Board shall choose annually its own Chair and Vice Chair, who shall act in the absence of the Chair.
F. 
Powers and duties generally; variances. 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 chapter.
(2) 
To authorize, upon appeal in specific cases, such variances from the terms of this chapter as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, provided that the spirit of this chapter shall be observed and substantial justice done as follows:
(a) 
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 on September 26, 1978, or where, by reason of exceptional topographic conditions or other 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 chapter would effectively prohibit or unreasonably restrict the use of the property, or where the Board is satisfied, upon the evidence heard by it, that the granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of this chapter.
(b) 
No such variance shall be authorized by the Board unless it finds:
[1] 
That the strict application of this chapter would produce undue hardship;
[2] 
That such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and
[3] 
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.
(c) 
No such variance shall be authorized except after notice and hearing as required by §§ 15.2-2204 to 15.2-2206 of the Code of Virginia as amended.
(d) 
No variance shall be authorized unless the Board finds that the conditions or situation of the property concerned or the intended use of the property is not of so general or recurring nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this chapter.
(e) 
In authorizing 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 insure that the conditions imposed are being and will continue to be complied with.
(3) 
To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. Public hearings after appropriate notice must be held prior to such adjustments. The Board shall not have the power to change substantially the locations of district boundaries as established by this chapter. The Board shall not have the power to rezone property.
G. 
Rules and regulations; meetings.
(1) 
The Board of Zoning Appeals shall adopt such rules and regulations as it may consider necessary.
(2) 
The meetings of the Board shall be held at the call of its Chair or at such times as a quorum of the Board may determine.
(3) 
The Chair or in his absence the Acting Chair may administer oaths and compel the attendance of witnesses.
(4) 
The Board shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact. It shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
(5) 
All meetings of the Board shall be open to the public.
(6) 
A quorum shall be at least three members.
(7) 
A favorable vote of three members of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative official or to decide in favor of the applicant on any matter upon which the Board is required to pass.
H. 
Right of appeal; filing of appeal generally. An appeal to the Board of Zoning Appeals 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. Such appeal shall be taken within 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. 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 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 Zoning Administrator and for good cause show.
I. 
Mailing of copies of appeal; fee for public hearings.
(1) 
Appeals shall be mailed to the Board of Zoning Appeals in care of the Zoning Administrator, and a copy of the appeal shall be mailed to the Secretary of the Planning Commission. A third copy should be mailed to the individual, official, department or agency concerned, if any.
(2) 
Appeals requiring an advertised public hearing shall be accompanied by the payment of a fee in the amount specified by the Town in its official schedule of fees.
J. 
Conduct of public hearing. 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 90 days. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from. The concurring vote of a majority of the membership of the Board 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 this chapter, or to 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 Chair of the Board, or in his/her absence the Acting Chair, may administer oaths and compel the attendance of witnesses.
K. 
Appeals to Circuit Court of Board decisions.
(1) 
Any person aggrieved by any decision of the Board of Zoning Appeals, or any taxpayer, or any officer, department, board or bureau may present to the Circuit Court of the County a petition specifying the grounds on which aggrieved within 30 days after the filing of the decision in the office of the Board.
(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 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 grounds of the decision appealed from and shall be verified.
(4) 
If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
(5) 
Cost 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 from.
A. 
All departments, officials and public employees of the Town who or which are vested with the duty or authority to issue permits or licenses shall conform to the provisions of this chapter. They shall issue permits for uses, buildings or purposes only when they are in harmony with the provisions of this chapter. Any such permit, if issued in conflict with the provisions of this chapter, shall be null and void.
B. 
Any person, whether as principal, agent, employee or otherwise, violating, causing or permitting the violation of any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, may be fined up to $1,000. Such person shall be deemed to be guilty of a separate offense for each day during which any portion of any violation of this chapter it committed, continued or permitted by such person and shall be punishable as herein provided.
Use or any other regulations, restrictions and boundaries established in this chapter may, from time to time, be amended, supplemented, changed, modified or repealed by a favorable majority of votes of the Town Council, provided that:
A. 
A public hearing shall be held in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. Notices shall be given of the time and place of hearings to be published in at least two issues of a newspaper having a general circulation in the jurisdiction, as set forth in § 15.2-2204 of the Code of Virginia, as amended. Not less than six days shall elapse between the first and second publication. Such notice shall specify the time and place of such hearing, at which persons affected may appear and present their views. After enactment of any such plans, ordinance or amendment, further publication thereof shall not be required.
B. 
When a proposed amendment of this chapter involves a change in the zoning classification of 25 or fewer parcels of land, in addition to the advertising as above required, written notice shall be given by the Commission at least five days before the hearing to the owner, his agent or the occupant of each parcel involved, and to the owners, their agents or the occupants of all abutting property and property immediately across the street or road from the property affected.
C. 
Notice shall also be given to the owner, his agent or the occupant of all abutting property and property immediately across the street from the property affected which lies in adjoining county. Notice sent by registered or certified mail to the last known address shall be deemed adequate compliance with this requirement. If the notices required hereby are sent by an agency, department or division of the local governing body, such notices may be sent by first class mail, provided that a representative of such agency, department or division shall make affidavit that such mailings have been made and file such affidavit with the papers in the case. Cost of any notice required under this chapter shall be taxed to the applicant.
D. 
Changes in this chapter or the Zoning Map shall be made by the Town Council only after such changes have been referred to the Planning Commission for its recommendation. Action shall be taken by the Town Council only after a report has been received from the Planning Commission, unless a period of 90 days has elapsed after date of referral to the Commission, after which time it may be assumed the Commission has approved the change or amendment. No land may be zoned to a more intensive use classification than was contained in the public notice without additional public hearing after notice as required herein.
E. 
Individual property owners may petition the Town Council to have their property rezoned by submitting their request in writing to the Town. The fee imposed shall be used to defray the cost of advertising and administration. After proper public hearing, the Planning Commission shall make its recommendation to the Town Council, which will then act upon the applicant's request.
Unless district boundary lines are fixed by dimensions or otherwise clearly shown or described, and where uncertainty exists with respect to the boundaries of any of the aforesaid districts as shown on the Zoning Map, the following rules shall apply:
A. 
Where district boundaries are indicated as approximately following or being at right angles to the center lines of streets, highways, alleys or railroad main tracts, such center lines or lines at right angles to such center lines shall be construed to be such boundaries, as the case may be.
B. 
Where a district boundary is indicated to follow a river, creek or branch or other body of water, such boundary shall be construed to follow the center line at low water or at the limits of the jurisdiction, and in the event of change in the shoreline, such boundary shall be construed as moving with the actual shoreline.
C. 
If no distance, angle, curvature, description or other means is given to determine a boundary line accurately and the foregoing provisions do not apply, the same shall be determined by the use of the scale shown on such Zoning Map. In case of subsequent dispute, the matter shall be referred to the Board of Zoning Appeals, which shall determine the boundary.
[Amended 7-14-1988]
When a request for rezoning or a special use permit is denied or disapproved by the Town Council, at least 12 months shall expire from such denial or disapproval before another application for rezoning or special use permit of the same land to the same rezoning or special use permit shall be considered.
[Amended 9-10-1997]
When a public hearing for a request for rezoning or special use permit for construction is being considered through the prescribed process by the Planning Commission and/or the Town Council, such property shall be properly posted by the applicant so as to notify the public of such intent. Such sign shall be placed at the front property line and be maintained so as to be legible from adjoining roads and properties until the date of the hearing. Applicant shall pay a set deposit fee to the Town and the Town shall provide a sign for applicant's use. Deposit shall be refunded upon return of the sign in good condition.
A. 
An owner may voluntarily proffer, in writing, reasonable conditions, prior to a public hearing before the Town Council, in addition to the regulations provided for the zoning district or zone by this chapter, as a part of a rezoning or amendment to a Zoning Map, provided:
(1) 
The rezoning itself must give rise for the need for the conditions;
(2) 
The conditions shall have a reasonable relation to the rezoning;
(3) 
The conditions shall not include a cash contribution to the Town;
(4) 
The conditions shall not include mandatory dedication of real or personal property for open space, parks, schools, fire departments, or other public facilities not otherwise provided for in the Code of Virginia, §§ 15.2-2241 and 15.2-2241.1, as amended;
(5) 
The conditions shall not include payment for or construction of off-site improvements except those provided for in Code of Virginia, § 15.2-2241.
(6) 
No condition shall be proffered that is not related to the physical development or physical operation of the property; and
(7) 
All such conditions shall be in conformity with the Comprehensive Plan as defined in the Code of Virginia, § 15.2-2223.
B. 
Once proffered and accepted as part of an amendment to this chapter, the conditions shall continue in effect until a subsequent amendment changes the zoning on the property covered by the conditions. However, the conditions shall continue if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning ordinance.
C. 
The Zoning Administrator shall administer and enforce the conditions attached to a rezoning or amendment to the Zoning Map, including:
(1) 
Ordering by written notice the remedy of any noncompliance with the conditions.
(2) 
Bringing legal action to ensure compliance with such conditions, including injunction, abatement or other appropriate action or proceeding.
(3) 
Requiring a guaranty, satisfactory to the governing body, on improvements required by the conditions, or a contract for the construction of such improvements, and the contractor's guaranty shall be reduced or released by the governing body or agent thereof upon the submission of satisfactory evidence that the construction of such improvements has been completed in whole or in part.
D. 
Failure to meet all of the conditions shall constitute cause to deny the issuance of any of the required use, occupancy, or building permits as may be appropriate.
E. 
The Zoning Map shall show by an appropriate symbol on the map the existence of conditions attaching to the zoning on the map. The Administrator shall keep in his office and make available for public inspection a conditional zoning index. The index shall provide ready access to the ordinance creating conditions in addition to the regulations provided for in a particular zoning district or zone.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A. 
Except when Code of Virginia, § 15.2-2209.1, is applicable to the Town, this section shall apply when the Town or the county has had population growth of 10% or more from the next-to-latest to latest decennial census year, based on population reported by the United States Bureau of the Census, or when the county is contiguous with at least three counties with such population growth.
B. 
Notwithstanding any contrary provisions of Code of Virginia, § 15.2-2297, an owner may voluntarily proffer, in writing, reasonable conditions, prior to a public hearing before the governing body, in addition to the regulations provided for the zoning district or zone by this chapter, as a part of a rezoning or amendment to a Zoning Map, provided that the rezoning itself gives rise to the need for the conditions, the conditions have a reasonable relation to the rezoning, and all conditions are in conformity with the Comprehensive Plan as defined in the Code of Virginia, § 15.2-2223. Once proffered and accepted as part of an amendment to this chapter, the conditions shall continue in effect until a subsequent amendment changes the zoning on the property covered by the conditions; however, the conditions shall continue if the subsequent amendment is part of a comprehensive implementation of a new or substantially revised zoning ordinance.
C. 
No proffer shall be accepted by Middletown unless it has adopted a capital improvement program pursuant to Code of Virginia, § 15.2-2239, or local charter. In the event proffered conditions include the dedication of real property or payment of cash, the property shall not transfer and the payment of cash shall not be made until the facilities for which the property is dedicated or cash is tendered are included in the capital improvement program, provided that nothing herein shall prevent the Town from accepting proffered conditions which are not normally included in a capital improvement program. If proffered conditions include the dedication of real property or the payment of cash, the proffered conditions shall provide for the disposition of the property or cash payment in the event the property or cash payment is not used for the purpose for which proffered.
D. 
In the event proffered conditions include a requirement for the dedication of real property of substantial value, or substantial cash payments for or construction of substantial public improvements, then no amendment to the Zoning Map for the property subject to such conditions, nor the conditions themselves, nor any amendments to this chapter thereto initiated by the Town Council, which eliminate, or materially restrict, reduce, or modify the uses, the floor area ratio, or the density of use permitted in the zoning district applicable to the property, shall be effective with respect to the property unless there has been mistake, fraud, or a change in circumstances substantially affecting the public health, safety, or welfare.
E. 
Any landowner who has prior to July 1, 2004, proffered the dedication of real property of substantial value, or substantial cash payments for or construction of substantial public improvements, the need for which is not generated solely by the rezoning itself, but who has not substantially implemented such proffers prior to July 1, 2004, shall advise the governing body by certified mail prior to July 1, 2005, that he intends to proceed with the implementation of such proffers. The notice shall identify the property to be developed, the zoning district, and the proffers applicable thereto. Thereafter, any landowner giving such notice shall have until July 1, 2009, substantially to implement the proffers, or such later time as the governing body may allow. Thereafter, the landowner, in good faith, shall diligently pursue the completion of the development of the property. Any landowner who complies with the requirements of this subsection shall be entitled to the protection against action initiated by the Town Council affecting use, floor area ratio, and density set out in this chapter, unless there has been mistake, fraud, or a change in circumstances substantially affecting the public health, safety, or welfare, but any landowner failing to comply with the requirements of this subsection shall acquire no rights pursuant to this section.
F. 
The provisions of this section shall be effective prospectively only, and not retroactively, and shall not apply to any zoning ordinance text amendments which may have been enacted prior to March 1, 2005. Nothing contained herein shall be construed to affect any litigation pending prior to July 1, 2005, or any such litigation nonsuited and thereafter refiled.
G. 
Nothing in this section shall be construed to affect or impair the authority of the Town Council to:
(1) 
Accept proffered conditions which include provisions for timing or phasing of dedications, payments, or improvements; or
(2) 
Accept or impose valid conditions pursuant to Code of Virginia, § 15.2-2286A(3), or other provisions of law.
H. 
The Zoning Administrator shall administer and enforce the conditions attached to a rezoning or amendment to the Zoning Map, including:
(1) 
Ordering by written notice the remedy of any noncompliance with the conditions.
(2) 
Bringing legal action to ensure compliance with such conditions, including injunction, abatement or other appropriate action or proceeding.
(3) 
Requiring a guaranty, satisfactory to the governing body, in an amount sufficient for and conditioned upon the construction of any physical improvements required by the zoning conditions, or a contract for the construction of such improvements and the contractor's guaranty, in like amount and so conditioned, which guaranty shall be reduced or released by the governing body, or agent thereof, upon the submission of satisfactory evidence that the construction of such improvements has been completed, in whole or in part.
I. 
Failure to meet any or all of the conditions shall constitute cause to deny the issuance of any of the required use, occupancy, or building permits as may be appropriate.
J. 
The Zoning Map shall show by an appropriate symbol on the map the existence of conditions attached to zoning. The Zoning Administrator shall keep in his office and make available for public inspection a conditional zoning index. The index shall provide ready access to the ordinance creating conditions in additions to the regulations provided for in a particular zoning district or zone.
K. 
The Zoning Administrator shall record in the deed book records of the office of the Clerk of the Circuit Court of Frederick County a certificate with the name of the property owner and a description of the property and indicating as shown on the Town of Middletown Zoning Map.
L. 
With respect to any land annexed or boundary adjusted into the Town of Middletown after July 1, 2005, the Town Council pursuant to § 15.2-1300 of the Code of Virginia, as amended, may accept on behalf of Frederick County as cash proffers any impact a development within the Town has on the Frederick County public school system pursuant to the existing Frederick County Impact Model or any amendments thereto. The Middletown Council may accept, pursuant to § 15.2-1300 of the Code of Virginia, as amended, in its sole discretion, cash proffers for Frederick County with respect to land incorporated into the Town of Middletown prior to July 1, 2005, pursuant to the Frederick County Impact Model or any amendments thereto.