§ 90-985. Powers and duties generally.

The board of zoning appeals shall have the power and duty:

(1)

To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement related to planning, subdivision of land or zoning. The decision on such appeal shall be based on the board's judgment 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.

(2)

To grant upon appeal or original application in specific cases a variance as defined in Code of Virginia, § 15.2-2201, 1950 as amended; 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, 1950, as amended and the criteria set out in Code of Virginia § 15.2-2309, 1950, as amended.

a.

A variance shall be granted if:

1.

The evidence shows that the strict application of the terms of an ordinance relating to planning, subdivision of land or zoning 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 on the property at the time of the effective date of the planning, subdivision of land or zoning ordinance, or alleviate a hardship by granting a reasonable modification to a property or improvements on the property requested by, or on behalf of, a person with a disability; and

2.

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; and

3.

The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; and

4.

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; and

5.

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

6.

The relief or remedy sought by the variance application is not available through an administrative variance, special exception or modification of the applicable ordinance.

b.

Any variance granted to provide a reasonable modification to a property or improvements on the property requested by, or on behalf of, a person with a disability shall expire when the person benefited by it is no longer in need of the modification to the property or improvements provided by the variance, subject to the provisions of state and federal fair housing laws, or the Americans with Disabilities Act of 1990.

No variance shall be considered except after notice and hearing as required by the 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.

c.

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. The property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state and local law; 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. 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 then be required.

(3)

To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by Code of Virginia, § 15.2-2204, 1950, as amended. 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 Code of Virginia, § 15.2-2204, 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 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 of zoning appeals 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 board of supervisors.

(6)

The board by resolution may fix a schedule of regular meetings and may also fix the day 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 Code of Virginia, § 15.2-2312, 1950 as amended, shall be conducted at the continued meeting and no further advertisement is required.

(7)

To hear and decide appeals to decrease the 100-foot-wide buffer area provided for as a portion of the resource protection area (RPA) overlay zoning district in accordance with the provisions provided in section 90-596 of this Code.

(8)

To grant special exceptions, upon conditions, to allow the keeping of more than three dogs on residentially zoned parcels, on business zoned parcels that allow residential uses, or any residentially used parcel, regardless of zoning, of an acre or less.

(Code 1988, § 17-345; Ord. No. O-12-37, § 1, 11-27-2012; Ord. No. O-19-11, 5-14-2019)

State Law reference— Powers and duties of board of zoning appeals, Code of Virginia, § 15.2-2309.

(Code 1988, § 17-345; Ord. No. O-12-37, § 1, 11-27-2012; Ord. No. O-19-11, 5-14-2019)

State law reference

Powers and duties of board of zoning appeals, Code of Virginia, § 15.2-2309.