(a) A Board of Zoning Appeals is hereby established with membership and appointment provided in accordance with Article 8, Chapter 8A of the West Virginia Code. If a vacancy occurs by resignation or otherwise, among the members of the Board, the City Council shall appoint a member for the unexpired term. The City Mayor with the approval of City Council shall appoint a 1st and 2nd alternate, who shall act in the event any member recuses oneself.
(b) This Subsection shall apply to the Martinsburg Zoning Ordinance and the Martinsburg Subdivision and Land Development Ordinance.
(c) Creation; Appointment; Term of Office; Vacancies; Membership; and Removal of Members. The Board of Zoning Appeals, consisting of five (5) members, heretofore created under the prior Martinsburg Zoning Ordinance adopted February 1970 is hereby continued in existence as the Board of Zoning Appeals under this Ordinance. The appointment of members, their terms of office, succession, removal, filling of vacancies, membership, and alternate membership, shall be as provided in Article 8, Chapter 8A of the West Virginia Code.
(d) General Powers and Duties. The Board of Zoning Appeals has the following powers and duties:
(1) Hear, review and determine Appeals from an order, requirement, decision or determination made by the City Engineer/Planning Director or designee under the Martinsburg Zoning Ordinance or rule or regulation adopted pursuant thereto or by the City Engineer/Planning Director or designee or rule or regulation adopted pursuant thereto;
(2) Hear requests for and decide whether to issue Special Use Permits authorizing Special Exception Uses provided in this Zoning Ordinance for the Zoning District at issue;
(3) Hear requests for, and decide whether to grant, Variances to the Zoning Ordinance as will not be contrary to the public interest, where owing to special condition, a literal enforcement of the provisions of this Ordinance would result in unnecessary hardship;
(4) Reverse, affirm or modify the order, requirement, decision or determination Appealed from and have all the powers and authority of the City Engineer/Planning Director or designee. The concurring vote of four of the members of the Board of Zoning Appeals shall be necessary to reverse any order, requirement, decision, or determination of the City Engineer/Planning Director or designee, or to decide in favor of the applicant on any matter upon which it is required to pass under this Ordinance, or to effect any variation in the application of this Ordinance;
(5) Adopt rules and regulations concerning:
A. The filing of Appeals, including the process and forms for the Appeal;
B. Applications and requests for Variances and Special Exception Uses;
C. The giving of notice; and
D. The conduct of hearings necessary to carry out the Board's duties under the terms of this Ordinance, the Subdivision and Land Development Ordinance, and Article 8, Chapter 8A of the West Virginia Code;
(6) Keep minutes of its proceedings;
(7) Keep an accurate and complete audio record of all the Board's proceedings and official actions. The audio record shall be kept in a safe manner and be accessible within a maximum of five (5) days not including Saturdays, Sundays, or legal holidays of a written request for a period of three (3) years; provided that, executive sessions of the Board of Zoning Appeals conducted for the purpose of deliberation incident to the quasi-judicial function of the Board and/or otherwise conducted in compliance with the Open Governmental Proceedings Act as codified in Article 9A, Chapter 6 of the West Virginia Code need not be audio recorded;
(8) Record the vote on all actions taken;
(9) Take responsibility for the custody and preservation of all papers and documents of the Board. All minutes and records shall be filed in the office of the Board and shall constitute public records;
(10) With consent from City Council, hire employees necessary to carry out the duties and responsibilities of the Board; provided that, City Council shall set the salaries; and
(11) Supervise the fiscal affairs and responsibilities of the Board.
(e) Organization; Meetings; Authority to Administer Oaths and Compel Attendance of Witnesses; Technical Assistance; Open Meetings. The Board shall be organized, hold meetings and conduct business in accordance with the provisions of this Ordinance and Article 8, Chapter 8A of the West Virginia Code. Meetings of the Board shall be held at least quarterly, and more frequently as the Board may determine or at the written request of the chairperson or two or more members. The chairperson, or in his/her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. For assistance, in reaching decisions relative to Appeals, Special Exception Uses, or Variances, the Board may request testimony at its hearings for purposes of securing technical aid or factual evidence from the City Mayor, City Council, or any City Department. All meetings of the Board shall be open to the public, subject to the right of the Board to adjourn into executive session for deliberation in the performance of its quasi-judicial functions and for such other purposes as may be proper under state law.
(f) Appeals to the Board. Any order, requirement, decision, or determination made by the City Engineer/Planning Director or designee under this Ordinance or any rule or regulation adopted thereunder, may be appealed to the Board of Zoning Appeals within thirty (30) business days of the original order, requirement, decision, or determination against which the Appeal is made. An Appeal shall be filed on forms established by the Planning Department, specify the grounds of Appeal, and otherwise be in accord with the Rules of the Board of Zoning Appeals.
(g) Hearings by the Board.
(1) Hearing – Action required after receipt of application or Appeal. Following receipt by the Board of Zoning Appeals of a complete application or Appeal, the Board shall:
A. Within (10) business days of receipt of a complete application or Appeal, set a time for hearing of the application or Appeal, and give notice thereof to the applicant or appellant. The hearing shall be held no later than forty-five (45) business days from the date of receipt of the complete application or Appeal. Applicants and appellants may petition for postponement or change of said dates for good cause shown in accord with the Rules of the Board of Zoning Appeals;
B. At least fifteen (15) business days prior to the date set for the hearing on the application or Appeal, publish a notice of the date, time and place of the hearing on the application or Appeal as a Class I legal advertisement in compliance with the provisions of West Virginia Code Chapter 59-3-1 et. seq., and at least fifteen (15) business days prior to the date set for the hearing on the application or Appeal provide written notice thereof to the interested parties. The publication area shall be the area covered in the application or Appeal. For purposes of this provision, “interested parties” shall mean Landowners of Adjacent Property within one hundred (100) radial feet of the proposed development or activity. The applicant or appellant shall make a good-faith effort to provide the City Engineer/Planning Director or designee as applicable, with a current list containing the accurate names and mailing addresses of all interested parties. In turn, the City Engineer/Planning Director or designee, shall verify said list of interested parties with Berkeley County-maintained property records;
C. Provide a hearing notice to the City Engineer/Planning Director or designee for posting upon the property upon which the application or Appeal is concerned. The notice shall be posted conspicuously at least fifteen (15) business days before the date of the hearing by the Board; and
D. Visit the specific property in question prior to the hearing in order to make proper determination of all applicable facts.
E. The written decision by the Board shall be rendered within thirty (30) days after the hearing. If the Board fails to render a written decision within thirty (30) days after the hearing, then any party may pursue additional legal remedies to obtain a decision, including, but not limited to, seeking a writ of mandamus.
(2) Hearing – Holding of Hearing; Appearance at Hearing. The Board, following such action above, shall hold such hearing. At the hearing, any party may appear and be heard in person or by agent or attorney, subject to the rules of the Board, and the prerogative of the Board to determine the standing of any Person to pursue an application or Appeal that has been filed.
(3) Hearing – Postponement.
A. Request for postponement of a scheduled hearing shall be filed in writing with the Board not less than fifteen (15) business days prior to the date of the hearing, and shall be accompanied by a sum of money sufficient to pay the cost of publishing the postponement, certified mail notice to all adjacent and confronting landowners of the subject property, and the rescheduled hearing as a Class I legal advertisement in compliance with the provisions of West Virginia Code Chapter 59-3-1 et seq. The granting of such requests shall be at the discretion of the City Engineer/Planning Director or designee.
B. Requests for postponement filed less than fifteen (15) business days prior to the date of a scheduled hearing, shall, in addition to the other requirements set forth in Subsection (a) above, including the sum of money sufficient to pay the cost of advertising the postponement and the rescheduled hearing, be supported by an affidavit or declaration of the party making the request or of some other credible person specifying that the scheduled hearing date will impose an extreme hardship or other good cause for postponement. The granting of such request shall be at the discretion of the City Engineer/Planning Director or designee.
C. No more than three (3) postponements shall be granted within any period of ninety (90) calendar days.
(4) Hearing – Continuance. The Board may continue a hearing at another time and/or date once such hearing has been started; however, the Board shall announce the date and hour of continuance of such hearing while in session. Furthermore, the chairperson, or in their absence, the acting chairperson may call for a continuance if a quorum is not in place for the meeting. The date and hour shall be agreed to by all parties and announced while in session.
(h) Staying of Work on Premises When Appeal Taken; Exception. When an Appeal has been taken and filed with the Board of Zoning Appeals, all proceedings and work on the premises in question shall be stayed unless the official or board from whom or which the Appeal was taken shall certify to the Board of Zoning Appeals that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. If such certificate be filed, proceedings or work on the premises shall not be stayed except by order of the Circuit Court of Berkeley County. Such stay shall not affect further administrative proceedings or engineering or architectural work that does not disturb the real property beyond incidental disturbances necessary to complete engineering work (such as surveying, tests, or core drilling).
(i) Hearings – Decision by the Board; Appeal from Decision by the Board. The Board shall render a written decision containing findings of fact and conclusions of law within thirty (30) business days after completion of the hearings. The Board may announce its decision at the conclusion of the public hearing and authorize the chairperson to execute the written decision once prepared, or it may defer its decision and reconvene within thirty (30) business days to further deliberate, vote, and render its written decision. Any Person or Persons aggrieved by any decision of the Board of Zoning Appeals may seek review by certiorari of the same by the Circuit Court of Berkeley County pursuant and subject to West Virginia Code Chapter 8A-9 by petition filed within thirty (30) business days after the filing of the Board's written decision. Nothing herein shall be deemed to limit the right of any Person to seek review by certiorari by said Court pursuant to said Chapter 8A-9 without first appealing to the Board of Zoning Appeals.
(j) Disapproval of Application. If an application or Appeal is denied by the Board of Zoning Appeals, no further action on another application for the same proposal on the same premises shall be taken until after twelve (12) months from the date of such denial. However, if circumstances change sufficiently that the necessary findings might be met in the future, the Board may rehear a similar application.
(k) Fees. A filing fee shall accompany each application for an Appeal to the Board. See the City Fee Schedule for the amount.
(Ord. 2021-07. Passed 7-21-21.)