§ 25-773. 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:

(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 or of any regulation adopted pursuant hereto. The decision on such appeal shall be based on the board of zoning appeals' judgment of whether the administrative officer was correct. The determination of the administrative officer shall be presumed to be correct. At a public hearing on an appeal, the administrative officer shall explain the basis for his/her 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 marking its decision. For purposes of this chapter, determination means any order, requirement, decision or determination made by an administrative officer. Any appeal of a determination to the board of zoning appeals shall be in compliance with this chapter, notwithstanding any other provision of law, general or special.

(2)

Notwithstanding any other provision of law, general or special, to grant upon appeal or original application in specific cases a variance as defined in section 15.2-2201 of the Code of Virginia, the burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that his/her application meets the standard for a variance as defined in section 25-40 definitions and the criteria set out in this section.

a.

Notwithstanding any other provision of law, general or special, a variance shall be granted if the evidence shows that the strict application of the terms of the ordinance 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 thereon at the time of the effective date of this chapter, and (i) 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; (ii) the granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; (iii) 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; (iv) 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 (v) the relief or remedy sought by the variance application is not available through a special exception process that is authorized in the ordinance pursuant to subdivision 6 of section 15.2-2309 of the Code of Virginia or the process for modification of a zoning ordinance pursuant to subdivision A4 of section 15.2-2286 of the Code of Virginia at the time of the filing of the variance application.

b.

No such variance shall be considered except after notice and hearing as required by section 15.2-2204 of the Code of Virginia. 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 of zoning appeals may give such notice by first-class mail rather than by registered or certified mail.

c.

In granting a variance, the board of zoning appeals 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. Notwithstanding any other provision of law, general or special, 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 this chapter. 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 be required.

(3)

To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by section 15.2-2204 of the Code of Virginia. 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 of zoning appeals 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 zoning map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by any such question, and after public hearing with notice as required by section 15.2-2204 of the Code of Virginia, the board of zoning appeals may interpret the map in such a way as to carry out the intent and the 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 of zoning appeals may give such notice by first-class mail rather than by registered or certified mail. The board of zoning appeals shall not have the power to change substantially the locations of district boundaries as established by this chapter.

(5)

No provision of this chapter shall be construed as granting any 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.

(Ord. of 5-25-88; Res. No. 12-10-2008, 10-21-08; Res. No. 14-06-2015, 6-16-15)

(Ord. of 5-25-88; Res. No. 12-10-2008, 10-21-08; Res. No. 14-06-2015, 6-16-15)