(a) Establishment of the Board of Zoning Appeals. The Board of Zoning Appeals existing at the time this chapter is enacted shall be continued. The Board of Zoning Appeals so established shall operate in accordance with the procedures and policies set forth in W. Va. Code Chapter 8A, Article 8, as amended. The Board of Zoning Appeals shall consist of the five members. Additionally, one member of the Planning Commission shall be appointed as liaison to the Board of Zoning Appeals. The member of the Planning Commission so appointed shall have the right to attend all meetings and take part in all discussions, but shall not vote on Board of Zoning Appeals decisions.
(B) Terms for members. The terms of office for the members of the Board of Zoning Appeals shall be three years with the terms being staggered so that approximately one-third of the terms expire every year. Members shall be permitted to be removed for cause upon written charges and after a public hearing before the City Council, if such hearing is requested.
(C) Selection of members. All members of the Board of Zoning Appeals shall be appointed and approved by the City Council. The terms of office shall be staggered at intervals, so as to provide continuity in policy and personnel. Members of the Board of Zoning Appeals shall be residents of the city. Members of the Board of Zoning Appeals shall serve without compensation. Any vacancy for the unexpired term of any member whose term is not completed shall be filled by the City Council for the remainder of the unexpired term. A member shall continue to serve until a successor has been appointed and approved by the City Council.
(D) Chairperson election and rules adoption. The Board of Zoning Appeals shall elect from its membership a Chairperson. It shall also establish and adopt rules for its organization and the transaction of business and shall keep a public record of its proceedings.
(E) Board of Zoning Appeals Secretary. A Secretary to assist the Board of Zoning Appeals may be appointed by the Code Official, with the advice and consent of the City Council. The Secretary, if appointed, shall keep minutes of the Board of Zoning Appeals meetings for public record, conduct all correspondence, including the notification of decisions, certify records, and prepare and submit the minutes of Board of Zoning Appeals meetings to the Chairperson and the Board of Zoning Appeals.
(F) Duties and powers.
(1) Errors. The Board of Zoning Appeals shall have the power to hear and decide on appeals where it is alleged that there is an error in any order, requirement, decision, determination or interpretation by the Code Official, or by any administrative official of the city charged with enforcement of this chapter.
(2) Variances. The Board of Zoning Appeals shall have the power to hear and decide on appeals wherein a variance to the terms of this chapter is proposed. Limitations as to the Board of Zoning Appeals authorization shall be as set forth in this chapter.
(3) Variance review criteria. The Board of Zoning Appeals may approve, approve with conditions or deny a request for a variance. Each request for a variance shall be consistent with the criteria listed below:
(a) The use of the property may be limited due to physical, topographic and geologic features;
(b) The grant of the variance will not grant any special privilege to the property owner;
(c) The applicant can demonstrate that without a variance there can be no reasonable use of the property;
(d) The grant of the variance is not based solely on economic reasons;
(e) The necessity for the variance was not created by the property owner;
(f) The variance requested is the minimum variance necessary to allow reasonable use of the property;
(g) The grant of the variance will not be injurious to the public health, safety or welfare; and
(h) The property subject to the variance request possesses one or more unique characteristics generally not applicable to similarly situated properties.
(4) Conditional use permits. It shall also be the duty of the Board of Zoning Appeals to review conditional use permit applications. The application shall be accompanied by maps, drawings or other documentation in support of the request. The granting of a conditional use permit shall not exempt the applicant from compliance with other relevant provisions of related section of this chapter.
(G) Use variance. The Board of Zoning Appeals shall not grant a variance to allow the establishment of a use in a zoning district when such use is prohibited by the provisions of this chapter.
(H) Decisions.
(1) The Board of Zoning Appeals shall be permitted to decide an appeal in any manner it sees fit; however, the Board of Zoning Appeals shall not have the authority to alter or change this chapter or zoning map, or to allow as a use that which would be inconsistent with the requirements of this chapter; provided, that any interpretation or application of this chapter shall not constitute the granting of a special privilege.
(2) The procedure to be utilized when seeking a decision by the Board of Zoning Appeals shall be as follows and shall be governed by the provisions the Code of West Virginia, as amended, and such rules not inconsistent therewith, as the Board of Zoning Appeals may adopt. In general, the procedure for appeal from action of the Code Official shall be as follows.
(a) Any appeal from the requirements of this chapter shall be on the form provided by the Code Official and shall be taken by filing with the Code Official a notice of appeal, specifying the grounds thereof. The Code Official shall forthwith transmit to the Board of Zoning Appeals all of the documents constituting the record upon which the action appealed was taken.
(b) The appellant shall, at the time of filing his or her appeal, pay to the Code Official the fee required by this chapter.
(c) Each appeal shall be tried on its merits at a public hearing. Notice of such appeal shall be given by publishing said notice as a Class II legal advertisement in a newspaper of general circulation in the city and in accordance with W. Va. Code Article 59-3, as amended; provided, that the notice shall be published two times, with seven days elapsing between the two publications and the second publication being no more than five days before the public hearing. The Board of Zoning Appeals shall give additional notice required by law to all parties in interest.
(d) The Board of Zoning Appeals may adjourn any hearing for the purpose of reviewing such data as may be pertinent to the problem involved and to request interpretations of said data by a representative of the Planning Commission.
(e) The Board of Zoning Appeals shall sit and decide each appeal within a reasonable time, and notice thereof shall be given to all parties interested. Each decision of the Board of Zoning Appeals shall be in writing, shall include findings of fact and conclusions of law, and shall be immediately filed in its office. If the Board of Zoning Appeals grants a variance, it must be entered in the minutes of the City Council so as to be of public record. In the exercise of its functions upon such appeals or upon exceptions, the Board of Zoning Appeals may in conformity with law, reverse or affirm, wholly or partly, or modify the order, requirement, decision or discrimination as in its opinion ought to be made; provided, that the Board of Zoning Appeals shall not have the authority to alter or change this chapter or zoning map, or to allow as a use that which would be inconsistent with the requirements of this chapter.
(f) Any person or any city official aggrieved by any decision of the Board of Zoning Appeals may appeal therefrom, within 30 days from the date of the decision, to the appropriate Circuit Court as provided by the laws of the state.
(Ord. 08-02, passed 2-19-2008; Ord. passed 2-2-2010)