Division 3 – Board of Zoning Appeals and Procedures
Division 3 – Board of Zoning Appeals and Procedures
§ 19.6-36 Joint Board of Zoning Appeals (BZA).
A. A Board consisting of five members shall be appointed by the Circuit Court of Appomattox County. The Board shall consist of members representing the Town of Appomattox (two members), Appomattox County (two members), plus one member from the area at large. Appointments for vacancies occurring otherwise than by expiration of term shall in all cases be for the unexpired term. The term of office shall be for five years. One of the appointed members may be an active member of the Planning Commission. The Board shall choose, at its first meeting of each year, its own Chairman and Vice Chairman, who shall act in the absence of the Chairman.
B. The Board of Supervisors, upon proper appropriation of funds, may allow the Board of Zoning Appeals to employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Board of Zoning Appeals may receive such compensation as may be authorized by the Board of Supervisors. Any Board of Zoning Appeals member or alternate may be removed for malfeasance, misfeasance, or nonfeasance in office, or for other just cause, by the court that appointed him/her after a hearing held subsequent to a fifteen-day notice.
§ 19.6-37 Proceedings.
The proceedings and operations of the Board of Zoning Appeals shall be in conformity with § 15.2-2308 et seq. of the Code of Virginia (1950), as amended, and the Board shall make no decisions on any petition or appeal unless and until it has conducted a public hearing thereon, with due public notice given as required by § 15.2-2204 of the Code of Virginia (1950), as amended.
§ 19.6-38 Powers and duties.
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;
B. To authorize, upon appeal, in specific cases such a variance from the terms of the chapter as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions will result in unnecessary hardship, provided the spirit of this chapter shall be observed and substantial justice done, as follows:
(1) 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 chapter, or where, by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property, or of the condition, situation, 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, 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. No such variance shall be authorized by the Board unless it finds:
(a) That the strict application of this chapter would produce undue hardship;
(b) That such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and
(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.
(2) No variance shall be authorized unless the Board finds that 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 this chapter.
(3) 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. Notwithstanding any other provision of law, 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 chapter. Where 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.
C. 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 property affected by the question after public hearing notice as required by § 15.2-2204 of the Code of Virginia (1950), as amended, 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, however, to rezone property or change the locations of district boundaries as established by ordinance.
D. To hear and decide appeals from the decision of the Zoning Administrator after notice and hearing as provided by § 15.2-2204 of the Code of Virginia (1950).
E. Concerning ex parte communications. [Added 3-29-2016]
(1) The nonlegal staff of the governing body may have ex parte communications with a member of the Board prior to the hearing but may not discuss the facts or law relative to a particular case. The applicant, landowner or his agent or attorney may have ex parte communications with a member of the Board prior to the hearing but may not discuss the facts or law relative to a particular case. If any ex parte discussion of facts or law in fact occurs, the party engaging in such communication shall inform the other party as soon as practicable and advise the other party of the substance of such communication. For purposes of this section, regardless of whether all parties participate, ex parte communications shall not include:
(a) Discussions as part of a public meeting; or
(b) Discussions prior to a public meeting to which staff of the governing body, the applicant, landowner or his agent or attorney are all invited.
(2) Any materials relating to a particular case, including a staff recommendation or report furnished to a member of the Board, shall be made available without cost to such applicant, appellant or other person aggrieved under § 15.2-2314, Code of Virginia (1950), as amended, as soon as practicable thereafter, but in no event more than three business days of providing such materials to a member of the Board. If the applicant, appellant or other person aggrieved under § 15.2-2314, Code of Virginia (1950), as amended, requests additional documents or materials be provided by the locality other than those materials provided to the Board, such request shall be made pursuant to § 2.2-3704, Code of Virginia (1950), as amended. Any such materials furnished to a member of the Board shall also be made available for public inspection pursuant to Subsection F of § 2.2-3707, Code of Virginia (1950), as amended.
(3) For the purposes of this section, “nonlegal staff of the governing body” means any staff who is not in the office of the attorney for the locality, or for the Board, or who is appointed by special law or pursuant to § 15.2-1542 Code of Virginia (1950), as amended. Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff of any attorney where such communication is protected by the attorney-client privilege or other similar privilege or protection of confidentiality.
(4) This section shall not apply to cases where an application for a special exception has been filed pursuant to Subdivision 6 of § 15.2-2309, Code of Virginia (1950), as amended.
§ 19.6-39 Appeals to the BZA.
A. An appeal to the BZA may be taken by any person aggrieved or by any officer, department, board, or bureau of the County affected by any decision of the Zoning Administrator or any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of this chapter, any ordinance adopted pursuant to this chapter or any modification of zoning requirements pursuant to § 15.2-2286. Notwithstanding any charter provision to the contrary, 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 30 days in accordance with this section and that the decision shall be final and unappealable if not appealed within 30 days. The zoning violation or written order shall include the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal. The appeal period shall not commence until the statement is given. A written notice of a zoning violation or a written order of the Zoning Administrator that includes such statement sent by registered or certified mail to, or posted at, the last-known address of the property owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall be deemed sufficient notice to the property owner and shall satisfy the notice requirements of this section. The 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. The fee for filing an appeal shall not exceed the costs of advertising the appeal for public hearing and reasonable costs. A decision by the Board 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 notice of the zoning violation or written order of the Zoning Administrator in accordance with this section. The owner’s actual notice of such notice of zoning violation or written order or active participation in the appeal hearing shall waive the owner’s right to challenge the validity of the Board’s decision due to failure of the owner to receive the notice of zoning violation or written order.
B. The Zoning Administrator shall forthwith transmit to the BZA all the papers constituting any 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 BZA 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 BZA or by a court of record, on application and on notice to the Zoning Administrator and for good cause shown.
C. 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 60 days have elapsed from the date of the written order, requirement, decision, or determination where the person aggrieved has materially changed his/her 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. This limitation does not apply to clerical or other nondiscretionary errors upon concurrence of the County Attorney.
D. The BZA 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 of interest, and decide the same within 90 days of the filing of the application. In exercising its powers, the BZA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from. The concurring vote of three 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 this chapter or to effect any variance from this chapter. The BZA shall keep minutes of its proceedings and other official actions. The Chairman may administer oaths and compel the attendance of witnesses.
§ 19.6-40 Appeals of the BZA to the Circuit Court.
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 locality, may file with the Clerk of the Circuit Court of Appomattox County a petition that shall specify the grounds on which aggrieved within thirty (30) days after the final decision of the BZA, as regulated by § 15.2-2314 et seq., Code of Virginia (1950), as amended.
§ 19.6-41 – Reserved