(a) Appeal from Decision of Administrative Official. An appeal taken from the requirement, decision or the determination made by an administrative official charged with the enforcement of this Zoning Ordinance shall be filed with the Board of Zoning Appeals.
The appeal shall specify the grounds thereof and shall be filed within such time and in such form as may be prescribed by the Board by general rule.
The administrative official from whom 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.
(1) Hearing of appeal. The Board of Zoning Appeals shall fix a reasonable time for the hearing of an appeal. Public notice shall be given of the hearing and due notice shall be given additionally to the interested parties.
The Board of Zoning Appeals may require the party taking the appeal to assume the cost of public notice and due notice to interested parties.
Upon the hearing, any party may appear in person, by agent or by attorney.
(2) Staying of work on premises. When an appeal from the decision of any official has been taken and filed with the Board of Zoning Appeals, all proceedings and work on the premises concerning when the decision was made shall be stayed unless the official from whom 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. In such case, proceedings or work shall not be stayed except by a restraining order which may be granted by the circuit court of the county in which the premises affected are situated, on application, on notice to the officer or board
from whom the appeal is taken and the owner of the premises affected and on due cause shown.
(b) Petitions to the Circuit Court.
(1) Petition for writ of certiorari. 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 the County in which the premises affected are located a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying 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.
(2) Notice to adverse parties. On filing a petition for a writ of certiorari with the Clerk of the Circuit Court, the petitioner shall cause a notice to be issued and served by the Sheriff upon the adverse party or parties, if any, as shown by the record of the appeal in the office of the Board of Zoning Appeals.
The adverse party or parties shall be any property owner whom the record of the Board of Zoning Appeals shows to have appeared at the hearing before the Board in opposition to the petitioner. If the record shows a written remonstrance or other document opposing the request of petitioner containing more than three names, the petitioner shall be required to cause notice to be issued and served upon the three property owners whose names first appear upon the remonstrance or document. Notice to the other parties named shall not be required.
The notice shall state that a petition for a writ of certiorari has been filed in the Circuit Court of the County, asking for a review of the decision of the Board of Zoning Appeals, designating the premises affected and the date of the decision and the time fixed for the return of the writ of certiorari by the Board of Zoning Appeals.
The service of the writ of certiorari by the sheriff on the chairman or secretary of the Board of Zoning Appeals shall constitute notice to the Board and to the City or any official or board thereof charged with the enforcement of the Zoning Ordinance, and no further summons or notice with reference to the filing of such petition shall be necessary.
(3) Action of Court on petition. Upon presentation of a petition for a writ of certiorari, the Circuit Court of the County, or a judge thereof in vacation shall direct the Board of Zoning Appeals within twenty days from the date of such citation, to show cause why a writ of certiorari should not issue. If such Board fails to show to the satisfaction of the court that a writ should not issue then the Court may allow a writ of certiorari directed to the Board of Appeals. The writ shall prescribe the time in which a return shall be made to it. This time shall not be less than ten days from the date of issuance of the writ and may be extended by the court or judge thereof.
(4) Stay of work on allowance of writ. The allowance of the writ of certiorari shall not stay proceedings or work on the premises affected under the decision to be brought up for review. The Court may, however, on application and on notice to all parties to the decision and on due cause shown grant such relief as the circumstances of the case may require, including an order staying the work until final determination of the case by the Court. Such staying order may be issued by the Court without requiring the petitioner to enter into a written undertaking to the adverse party affected thereby for the payment of damages by reasons of such staying order.
(5) Return to writ by Board of Zoning Appeals. The answer to the writ of certiorari by the Board of Zoning Appeals must concisely set forth such facts and data as may be pertinent and present material to show the grounds of the decision appealed from. It shall include copies of all reviews pertaining to the case in dispute.
The answer must be verified by the secretary of the Board.
The Board shall not be required to return the original papers acted upon by it. It shall be sufficient to return certified copies of all or such portion of the papers as may be called for by the writ.
(6) Action by the Court. The Court may decide and determine the sufficiency of the statements of illegality contained in the petition without further pleadings and may make its determination and render its judgment with reference to the legality of the decision of the Board of Zoning Appeals on the facts set out in the return to the writ of certiorari.
If it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence to supplement the evidence and facts disclosed by the return to the writ of certiorari, but no such review shall be by trial de nova.
In passing upon the legality of the decision of the Board of Zoning Appeals, the court may reverse or affirm, wholly or in part, or may modify the decision of the Board of Zoning Appeals brought for review.
(7) Appeals from Court judgment. An appeal may be taken to the Supreme Court of Appeals of West Virginia from the final judgment of the Court reversing, affirming or modifying the decision of the Board of Zoning Appeals in the same manner, and upon the same terms, conditions and limitations as appeals in other civil actions. (5-16-67)