Loading...
(a) An appeal from any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of a zoning ordinance, or rule and regulation adopted pursuant to a zoning ordinance, shall be filed with the Board of Zoning Appeals.
(b) The appeal shall:
(1) Specify the grounds of the appeal;
(2) Be filed within thirty days of the original order, requirement, decision or determination made by an administrative official or board charged with the enforcement of a zoning ordinance; and
(3) Be on a form prescribed by the Board.
(c) Upon request of the Board of Zoning Appeals, the administrative official or board shall transmit all documents, plans and papers constituting the record of the action from which the appeal was taken. (2020 Code 8A-8-10) (10-6-20)
(a) Within ten days of receipt of the appeal by the Board of Zoning Appeals, the board shall set a time for the hearing of the appeal and give notice. The hearing on the appeal must be held within forty-five days of receipt of the appeal by the board. ·
(b) At least fifteen days prior to the date set for the hearing on the appeal, the Board of Zoning Appeals shall publish a notice of the date, time and place of the hearing on the appeal as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of West Virginia Code and written notice shall be given to the interested parties. The publication area shall be the area covered in the appeal.
(c) The Board of Zoning Appeals may require the party making the appeal to pay for the cost of public notice and written notice to interested parties.
(d) At the hearing, any party may appear in person, by agent or by an attorney licensed to practice in this state.
(e) Every decision by the Board must be in writing and state findings of fact and conclusions of law on which the Board based its decision. If the Board fails to provide findings of fact and conclusions of law adequate for decision by the circuit court and as a result of the failure, the circuit court returns an appealed matter to the Board and dismisses jurisdiction over an applicant's appeal without deciding the matter, whether the court returns the matter with or without restrictions, the Board shall pay any additional costs for court filing fees, service of process and reasonable attorneys' fees required to permit the person appealing the Board's decision to return the matter to the circuit court for completion of the appeal.
(f) The written decision by the Board shall be rendered within thirty days after the hearing. If the Board fails to render a written decision within thirty 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. (2020 Code 8A-8-11) (10-6-20)
A 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 an administrative official or board charged with the enforcement of a zoning ordinance or rule and regulation adopted pursuant thereto;
(2) Authorize exceptions to the district rules and regulations only in the classes of cases or in particular situations, as specified in the zoning ordinance;
(3) Hear and decide conditional uses of the zoning ordinance upon which the Board is required to act under the zoning ordinance;
(4) Authorize, upon appeal in specific cases, a variance to the zoning ordinance;
(5) Reverse, affirm or modify the order, requirement, decision or determination appealed from and have all the powers and authority of the official or board from which the appeal was taken;
(6) Adopt rules and regulations concerning:
(A) The filing of appeals, including the process and forms for the appeal;
(B) Applications for variances and conditional 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 article;
(7) Keep minutes of its proceedings;
(8) Keep an accurate and complete audio record of all the Board's proceedings and official actions and keep the audio record in a safe manner, which audio record is accessible within twenty-four hours of demand, for three years;
(9) Record the vote on all actions taken;
(10) 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 be public records;
(11) With consent from the governing body, hire employees necessary to carry out the duties and responsibilities of the Board: provided, that the governing body sets the salaries; and
(12) Supervise the fiscal affairs and responsibilities of the Board.
(2020 Code 8A-8-9) (10-6-20)
(a) When an appeal has been filed with the Board of Zoning Appeals, all proceedings and work on the premises in question shall be stayed, except as provided in subsection (b) of this section.
(b) A stay may not be had:
(1) If the official or board from where the appeal was taken certifies in writing to the Board of Zoning Appeals that a stay would cause imminent peril to life or property;
(2) Upon further administrative proceedings, including, but not limited to, submissions to and reviews by the staff or any administrative body; or
(3) Upon engineering or architectural work that does not disturb the real estate beyond what is necessary to complete engineering, survey work or other tests.
(c) If the written certification is filed pursuant to subsection (b)(1) of this section, then proceedings or work on the premises shall not be stayed.
(d) Nothing in this section prevents a party from obtaining a restraining order.
(2020 Code 8A-8-12) (10-6-20)
(a) A variance is a deviation from the minimum standards of the zoning ordinance and shall not involve permitting land uses that are otherwise prohibited in the zoning district nor shall it involve changing the zoning classifications of a parcel of land.
(b) The Board of Zoning Appeals shall grant a variance to the zoning ordinance if it finds that the variance:
(1) Will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents;
(2) Arises from special conditions or attributes which pertain to the property for which a variance is sought and which were not created by the person seeking the variance;
(3) Would eliminate an unnecessary hardship and permit a reasonable use of the land; and
(4) Will allow the intent of the zoning ordinance to be observed and substantial justice done.
(2020 Code 8A-7-11) (10-6-20)
Every decision of the Board of Zoning Appeals shall be subject to review by certiorari.
Any person or persons, firm or corporation jointly or severally aggrieved by any decision of the Board of Zoning Appeals, may present to the Circuit Court of Jackson County a petition duly verified, setting forth that such decision is illegal in whole or in part, and specify the grounds of the illegality. The petition shall be presented to the Court within thirty days after the date of the decision and the order of the Board of Zoning Appeals complained of.