(a) Appeal from Decision of Administrative Official or Board.
(1) An appeal taken from any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any ordinance or rule and regulation adopted under this Zoning Ordinance shall be filed with the Board of Zoning Appeals (herein called "Board").
(2) The appeal shall specify the grounds thereof and shall be filed within thirty (30) days following the date of any decision. Such application shall be filed with the Board and shall include, but not be limited to, the following:
A. The name and address of the applicant or appellant.
B. The name and address of the owner of the property.
C. The deed book, page number, tax map number and tax parcel number.
D. A brief description and location of the property to be affected by such proposed change or appeal.
E. A statement of the present zoning classification of the property in question and the present use thereof.
F. A reasonably accurate description of the additions or changes intended to be made under this application indicating the size, material and general construction of such proposed improvements. A plot plan of the property to be affected, indicating the location and size of the lot and the size of the existing and intended improvements shall be attached to the description. Plot plans shall be clear, legible and accurately drawn to scale.
G. Submittal of appropriate fees.
(3) The administrative official or board from whom or which the appeal is taken shall, upon request of the Board of Zoning Appeals, transmit to it all documents, plans and papers constituting the record of the action from which an appeal was taken.
(b) Hearing of Appeal. The Board of Zoning Appeals shall conduct hearings and make decisions in accordance with the following:
(1) Notice of hearings.
A. Advertisement. The Board of Zoning Appeals shall fix a reasonable time for the hearing of an appeal. At least thirty days prior to the date set for hearing, the Board shall publish a notice of the date, time and place of the hearing as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of the Code of the State of West Virginia, and the publication area for such publication shall be the Municipality. Such Class I legal advertisement shall stipulate the general nature of the matter to be considered.
B. Posting. Written notice of such hearing shall be conspicuously posted on the affected tract of land at least 1 week prior to the hearing.
C. Notification Requirements. The Board shall give public notice of all matters to be heard at any given meeting and shall give written notice to the owner, appellant, Mayor, Council, and to interested parties who have registered their names and addresses with the Board, and may give notice to the occupant of every lot within 200 feet of the lot in question. The notices herein required shall state the location of the building or lot, the general nature of the question involved and the time and place of the hearing.
(2) Fees and costs. The party taking the appeal shall assume the cost of public notice and due notice to interested parties.
(3) Time constraints. The hearing shall be held within sixty (60) days from the date of the applicant's request, unless the applicant has agreed in writing to an extension of time.
(4) Persons entitled to present appeals before the Board. One or more of the following persons shall present an appeal of the decision of the Code Official before the Board.
A. The landowner.
B. A party with equitable interest in the property.
C. An attorney licensed to practice in the State of West Virginia.
D. A properly executed power of attorney.
(5) Parties. At the hearing, any party affected by the application may appear in person, by agent or by an attorney at law admitted to practice in this State. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose.
(6) Oaths and subpoenas. The chairman or acting chairman of the Board presiding shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.
(7) Representation by counsel. The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues.
(8) Conduct of hearings. The Board shall conduct hearings, or the Board may appoint any member as a hearing officer. The decision, or where no decision is called for, the findings, shall be made by the Board. The parties may, however, waive the decision or findings by the Board and accept the decision or findings of the hearing officer as final.
(9) Evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(10) Record.
A. The Board or the hearing officer, as the case may be, shall produce a magnetic record of the proceedings. Transcripts of the record shall be available upon written request. The party making the request shall bear the cost of the transcript.
B. The cost of the original transcript shall be paid by the Board if a transcript is ordered by the Board or shall be paid by the person appealing from the decision of the Board if such appeal is made, and in either event, the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases, the party requesting the original transcript shall bear the cost thereof.
(11) Ex parte communications.
A. The Board shall not communicate, directly or indirectly, with any party or his representative in connection with any issues involved, except upon notice and opportunity for all parties to participate.
B. The Board shall not take notice of any communication, reports, staff memoranda or other materials (except advice from their solicitor), unless the parties are afforded an opportunity to contest the material so noticed.
C. After the commencement of hearings, the Board shall not inspect the site or its surroundings with any party or his representative, unless all parties are given an opportunity to be present.
(12) Conflicts of interest. No member of the Board shall vote upon or participate in deliberations concerning any application for which the member has a conflict of interest. Grounds for disqualification on an individual appeal include, but are restricted to, the following:
A. Direct or indirect financial or property interest.
B. Direct business association with one of the parties involved.
C. A close familial relationship with one of the parties involved.
D. An overt expression or affiliation with an organization whose ideology expresses a predisposition toward the parties or the intent of the parties involved.
(c) 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 a restraining order which may be granted by the Circuit Court of Nicholas County, upon application therefor, on notice to the official or board from whom or which the appeal is taken and the owner of the premises affected and on due cause shown.
(d) Decisions; Findings.
(1) The Board shall render a written decision or make written findings (when no decision is called for) on the application, within 45 days after the last hearing before the Board.
(2) Where the application is contested or denied, the decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor.
(3) Any conclusion based on any provision of the Zoning Ordinance, as amended, or of this article, shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light of the facts found.
(4) If the hearing is conducted by a hearing officer and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written recommendations thereon to the Board prior to final decision or entry of findings. The Board's decision shall be entered no later than thirty days after the decision of the hearing officer.
(5) Where the Board fails to render the decision within the period required by this Section, or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time.
(e) Notice of Decision.
(1) A copy of the final decision or a copy of the findings (when no decision is called for) shall be delivered to the applicant personally or mailed to him or her no later than one (1) working day following its date.
(2) The Board shall provide (by mail or otherwise) a brief notice of the decision or findings and a statement of the place where the full decision or findings may be examined to all other persons who have filed their names and addresses with the Board.
(3) When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a timely decision, as required by subsection (b)(3) or subsection (d)(1) hereof, the Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in subsection (b)(1) hereof. If the Board shall fail to provide such notice, the applicant may do so.
(f) Effect of Board's Decision.
(1) If a variance is granted or the issuance of a permit is approved, or other action by the appellant is authorized, the necessary permit shall be secured and the authorized action begun according to the stipulations set forth in this Zoning Ordinance as found in Section 1329.04
.
(2) Should the appellant or applicant fail to obtain necessary permits within a six (6) month period from the date of approval, or having obtained the permit should he fail to commence work thereunder within such six (6) month period, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn or abandoned his appeal or his application, and all provisions, variances and permits granted to him or her shall be deemed rescinded by the Board without further action.
(3) Should the appellant or applicant commence construction or alteration within said six (6) month period, but should he or she fail to complete such construction or alteration within said 12 month period, the Board may, upon 10 days notice in writing, rescind or revoke the granted variance, or the issuance of the permit, or the other action authorized to the appellant or applicant; however, if the Board finds that a good cause appears for the failure to complete said construction or alteration within such 12 month period, the Board may grant an extension for such period of time as the Board deems reasonably necessary.
(Passed 6-24-02.)