Section 2.6.2 Powers and Duties of the Board of Zoning Appeals
The Board of Zoning Appeals shall have the following powers and duties in accordance with Section 15.2-2309 of the Code of Virginia:
A. To hear and decide appeals from any order, requirement, decision, or determination made by an administrative office in the administration or enforcement of this ordinance;
B. To authorize upon appeal, or original application in specific cases, such variance as defined in Section 15.2-2201 of the Code of Virginia from the terms of the ordinance 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 that the spirit of the ordinance shall be observed and substantial justice done, as follows.
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 specific piece of property at the time of the adoption of this ordinance, or where by reason of exceptional topographical 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 ordinance would effectively prohibit or unreasonably restrict the utilization 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 demonstrated hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant. All variances shall be in harmony with the intended spirit and purpose of the ordinance.
No such variance shall be authorized by the board unless it finds all of the following conditions exist:
1. That the strict application of the ordinance would produce undue hardship.
2. That such hardship is not shared generally by other properties in the same zoning district and the same vicinity.
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.
No such variance shall be authorized unless the board finds that the conditions 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.
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 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 until after such notice and hearing as provided in Section 15.2-2204 of the Code of Virginia.
D. To hear and decide applications for interpretation of the district map where there is an uncertainty as to the location of a district boundary. After notice to the owners of the property affected by such question, and after public hearing with notice as required, the board may interpret the map in such way as to carry out the intent and purpose of the ordinance for the particular section or district in question. 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 the ordinance. 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 guarantee 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 required.
G. To revoke a special exception if the board determines that there has not been compliance with the terms and conditions of the permit. No special exception may be revoked except after notice and hearing as required.
Section 2.6.3 Applications for Special Exceptions and Variances
Applications for special exceptions and variances may be made by any property owner, tenant, with owner’s approval, government official, department, board, or bureau. Such application shall be made to the Zoning Administrator in accordance with the rules adopted by the board. The applica¬tion along with accompanying maps, plans or other information shall be transmitted promptly to the secretary of the board to be placed on the agenda and acted upon by the board. No such special exception or variance shall be authorized except after notice and hearing as required. The Zoning Administrator shall also transmit a copy of the application to the local planning commission which may send a recommendation to the board or appear as a party at the hearing. The Board of Zoning Appeals will not consider the same application which has previously been denied within a period of one year.
Section 2.6.4 Appeals and Procedure of Appeals
An appeal to the Board of Zoning Appeals may be taken by any person aggrieved or by an officer, department, board, or bureau of the county or municipality affected by any decision of the Zoning Administrator or Administrative Officer in the administration or enforcement of this ordinance. The decision may be appealed within thirty days thereof by filing a notice of appeal specifying the grounds of the appeal. Said appeal shall be filed with Zoning Administrator and with the Board of Zoning Appeals. The Zoning Administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
The board shall fix a reasonable time for the hearing of an application for appeal, give the public notice thereof as well as due notice to the parties in interest, and decide the same within sixty days of the filing of the application for appeal. In exercising its powers, the board may reverse or affirm wholly or in part or may modify an order, requirement, decision, or determination of an administra¬tive officer or decide in favor of the applicant on any matter which it is required to effect any variance from the ordinance. The board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the Zoning Administrator and shall be public record. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses.
In accordance with Section 15.2-2313 where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected, or abated as a violation of the zoning ordinance, by suit filed within fifteen days after the start of construction by a person who had no actual notice of the issuance of the permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the administrative officer to the Board of Zoning Appeals.
Section 2.6.5 Certiorari to Review Decision of the Board of Zoning Appeals
Any person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals or any taxpayer or any officer, department, board, or bureau of the municipality may present to the circuit court of the county a petition specifying the grounds on which aggrieved within thirty days after the filing of the decision in the office of the board.
Upon 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 ten 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.
The board 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 the material to show the grounds of the decision appealed from and verification.
If, upon 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 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 in part, or may modify the decision brought up for review.
Costs 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. In the event that a decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making a return of the record pursuant to the writ.
Section 2.6.6 Fee for Appeals and Applications for Variance
Every appeal to the Board of Zoning Appeals from a determination of the Zoning Administrator and every application for a variance shall be accompanied by a fee governed by ordinance set forth by the Town Council of the Town of Cape Charles.
Section 2.6.7 Expiration of Variances
If any variance granted by the Board of Zoning Appeals is not acted on and put into effect within one year after the date such variance was granted, then the variance shall be null and void and of no force and effect.