(A) Generally. An appeal to the Board of Zoning Appeals may be taken by any person aggrieved or by any officer, department, board, or bureau of the town affected by any decision of the Zoning Administrator or from any order, requirement, decision, or determination made by any other administrative officer in the administration or enforcement of VA Code §§ 15.2-2280 et seq., or Chapter 157 of this code. Notwithstanding any Charter provision to the contrary, any written notice of a zoning violation or a written order of the Zoning Administrator dated on or after July 1, 1993, shall include a statement informing the recipient that he or she may have a right to appeal the notice of a zoning violation or a written order within 30 days in accordance with this section, and that the decision shall be final and unappealable if not appealed within 30 days. The appeal period shall not commence until the statement is given.
(B) Application and fees. An appeal must be taken within 30 days after the decision appealed from by filing, on the form provided, a notice of appeal with the Zoning Administrator and the Board of Zoning Appeals, which appeal shall specify the grounds of the appeal, together with the fees as established in the current fee schedule. The application and accompanying maps, plans, and other documentation constituting the record upon which the action appealed from was taken shall be transmitted promptly to the Secretary of the Board, who shall place the matter on the docket. An appeal shall stay all proceedings in furtherance of the action appealed from unless the Zoning Administrator certifies to the Board that by reason of facts stated in the certificate a stay would in his or her opinion cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order granted by the Board or by a court of record, on application and on notice to the Zoning Administrator and for good cause shown.
(C) Notice and hearing required; Planning Commission recommendation. After entering the appeal on the docket, the Secretary of the Board shall advertise a public hearing, give written notice to the parties in interest, and request the Zoning Administrator to transmit a copy of the application and his or her staff report to the Planning Commission; the Planning Commission may send a written recommendation to the Board to appear as a party at the public hearing.
(D) Burden of proof. The applicant for a variance has the burden of proving that denial of a variance will result in unnecessary hardship, of proving that his or her hardship is due to Chapter 157 of this code itself, and of proving, to the satisfaction of the Board, requirements for a variance stipulated in the VA Code.
(E) Findings required. The Board shall fix a reasonable time for the hearing of an application or appeal, give public notice as well as due notice to the parties in interest, and make its decision within 90 days of the filing of the application or appeal. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify an order, requirement, decision, or determination appealed from. The concurring vote of a majority of the membership of the Board shall be necessary to reverse any order, requirement, decision, or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under Chapter 157 of this code or to effect any variance from Chapter 157 of this code. The decision of the Board must be based on the evidence adduced at a public hearing and must include findings of fact disclosing the evidence relied upon by the Board and otherwise state the business and grounds for its decision to assure that the provisions of the VA Code and this subchapter have been met.
(F) Board to issue order. Whenever the Board shall grant a variance, the Secretary of the Board shall cause an order to be issued evidencing the grant and furnish copies of the order to the applicant, to the Zoning Administrator, to the Town Clerk, and to such other parties as deemed necessary.
(G) Limitation on change. In no event shall a written order, requirement, decision, or determination made by the Zoning Administrator or other administrative officer be subject to change, modification, or reversal by any Zoning Administrator or other administrative officer after 60 days have elapsed from the date of the written order, requirement, decision, or determination where the person aggrieved has materially changed his or her position in good faith reliance on the action of the Zoning Administrator or other administrative officer unless it is proven that such written order, requirement, decision, or determination was obtained through malfeasance of the Zoning Administrator or other administrative officer or through fraud. The 60-day limitation period shall not apply in any case where, with the concurrence of the Town Attorney, modification is required to correct clerical or other nondiscretionary errors.
(1998 Code, § 2-281) (Ord. O-2023-15, passed 9-19-2023)