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ARTICLE IX. EXCEPTIONS, APPEALS AND VARIANCES
Sec. 20.5-128.
Appeals and variances.
(a) The county board of
zoning and subdivision appeals shall hear and decide appeals and applications for
variances from the terms or administration of this chapter.
(b) The board of zoning and subdivision appeals shall have the
following powers and duties with respect to the subdivision ordinance:
(1) To hear and decide appeals from
any order, requirement, decision or determination made by the agent or other
administrative officer in the administration and enforcement of this chapter, provided
however, that the subdivider may appeal the failure of the agent to approve or disapprove
a plan or plat within the timeframes contained herein or the disapproval by the agent of
such a plan or plat directly to the circuit court in accordance with section 15.2-2259,
Code of Virginia.
(2) To authorize upon appeal or original application in
specific cases a variance from the terms and conditions of this chapter as will not be
contrary to the public interest, when, owing to special conditions, a literal
interpretation and enforcement of the provisions will result in hardship and provided that
the spirit of this chapter is upheld 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 size,
shape, topography, or other extraordinary condition of the specific property or of the use
and development of immediately adjacent property, the strict application of the terms of
this chapter would effectively prohibit or unreasonably restrict the use of the property,
or where the board of zoning and subdivision appeals 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 variance shall be authorized by the board of zoning and
subdivision appeals unless it finds:
1. That the strict application of the chapter would produce
substantial injustice or hardship;
2. That such hardship is not shared generally by other
properties;
3. That the granting of such a variance will not be of
substantial detriment to adjacent property; and
4. 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 chapter.
c. In authorizing a variance, the board of zoning and
subdivision appeals may impose such conditions regarding the location, character and other
features of the proposal as it may deem necessary in the public interest, and may require
performance guarantees to ensure that the conditions imposed are complied with and that
such compliance will continue.
(c) Appeals of administrative
decisions or determinations shall be filed with the secretary of the board of zoning and
subdivision appeals within thirty (30) days of such decision having been rendered in
writing, by any person aggrieved or affected by such decision or determination. Such
application shall clearly state the grounds for appeal. The secretary shall transmit to
the board of zoning and subdivision appeals the application, all supporting documentation,
and all papers constituting the record upon which the appealed action was taken.
(d) An appeal shall stay all proceedings in furtherance of the
appealed action unless the agent certifies to the board of zoning and subdivision appeals
that, by reason of the facts stated in such certificate, a stay would, in his opinion,
cause imminent peril to life or property, in which case the proceedings shall not be
stayed otherwise than by a restraining order granted by the board of zoning and
subdivision appeals or by a court of record, on application and on notice to the agent for
good cause shown.
(e) Applications for variances may be filed with the secretary
of the board of zoning and subdivision appeals by any subdivider. Such
application and accompanying maps, plans or other information shall
be promptly transmitted to the board of zoning and subdivision
appeals and placed on the docket to be acted upon after public
notice and hearing in accordance with section 15.2-2204 of the Code of Virginia. A copy of
the application and accompanying documentation shall be transmitted to the planning
commission which may send a recommendation or appear as a party at the hearing.
(f) The board of
zoning and subdivision appeals shall fix a reasonable time for the
hearing of an application for a variance or an appeal, but in no
case shall it be heard more than seventy-five (75) days after a
complete application, including fees, is filed with the secretary.
Applications shall be decided no more than ninety (90) days from the
date the complete application was filed.
(g) In exercising its powers and duties with respect to this
chapter, the board of zoning and subdivision appeals 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 of zoning appeals shall be
necessary to reverse any order, requirement, decision or determination of an
administrative officer or to effect a variance from the terms and conditions of this
chapter.
(h) The board of zoning and subdivision appeals shall keep
minutes of its proceedings and other official actions with respect to this chapter, said
minutes to be filed in the office of the secretary to the board of zoning and subdivision
appeals and maintained as public records. The chairman of the board of zoning and
subdivision appeals, or in his absence the acting chairman, may administer oaths and
compel the attendance of witnesses.
(I) When the board of zoning and subdivision appeals has acted
on an application with respect to this chapter, substantially the same application or
appeal shall not be considered within one (1) year of the date of action.
(Ord. No. 05-33, 12/20/05)
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