(a) AUTHORIZATION. The City Council shall create a Board of Zoning Appeals consisting of five members to be appointed by the Mayor with the consent of Council.
(b) POWERS AND DUTIES.
(1) Hearing Appeals. Hear and determine appeals from and review any order, requirement, decision or determination made by the zoning office or the Planning Commission in the enforcement of this Zoning Ordinance.
(2) Approve a variance requested by an applicant, where such variance from the terms of the ordinance will not be contrary to the public interest, and where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
(3) Hear, review and determine whether or not to grant a “conditional use” permit, where such permit from the terms of the ordinance will not be contrary to public interest; and where because of special requirements or characteristics the proposed use may be permitted on a particular property only after review by the Board of Zoning Appeals (BZA) and upon issuance of a conditional use permit, and subject to the limitations and conditions specified in the Zoning Ordinance.
(Ord. 13708. Passed 11-18-08.)
(c) ELIGIBILITY, MEMBERSHIP, AND COMPENSATION.
(1) The members of the Board of Zoning Appeals shall be individuals who are residents of the City, and at least three of such members must have been residents of the City for at least ten years preceding the time of their appointment. No member of the Board of Zoning Appeals shall be a member of the Planning Commission nor shall any member hold any elective or appointive office in the City or Ohio County.
(2) Members of the board shall serve without compensation, but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their official duties.
(3) If a vacancy occurs by resignation or otherwise from among the members of the Board of Zoning Appeals, the Mayor, with the consent of Council, shall appoint a member for the non-expired term.
(4) The Mayor may remove a member of the Board of Zoning Appeals, with the approval of Council, during his term of office but only upon stating in writing the reasons for removal and after allowing him an opportunity to be heard by Council in his own defense.
(d) TERMS OF MEMBERS. Upon the creation of the Board of Zoning Appeals, the members shall be appointed for the following terms: One for a term of one year; two for a term of two years; and two for a term of three years. The terms shall expire on the first day of January of the first, second and third year, respectively, following their appointment. Thereafter, as their terms expire, each new appointment shall be for a term of three years.
(e) PROCEDURES AND MEETINGS.
(1) Procedures and Regulations. The Board of Zoning Appeals shall adopt bylaws or rules governing the filing of appeals, applications for variances and exceptions, the giving of notice and the conduct of hearings as shall be necessary to carry out its duties. The board shall keep minutes of its proceedings, keep records of all official actions and shall record the vote on all actions taken. All minutes and records shall be filed in the office of the board and shall be public records.
(2) Quorum. A majority of the members of a Board of Zoning Appeals shall constitute a quorum. No action of a board shall be official, however, unless authorized by a majority of all of the board members.
(3) Officers. At its first meeting of each year, the Board of Zoning Appeals shall elect a chairperson and vice-chairperson from its membership. The vice-chairperson shall have the power and authority to act as chairperson during the absence or disability of the chairperson.
(4) Variance Procedure.
A. A variance from the terms of this Zoning Ordinance shall not be granted by the Board unless and until a written application for a variance is submitted demonstrating that:
1. Special conditions and circumstances exist which are peculiar to the land, structure or building involved, and which are not applicable to other lands, structures or buildings in the same district.
2. Literal interpretation of the provisions of this Zoning Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Zoning Ordinance.
3. The special conditions and circumstances do not result from the actions of the applicant.
B. No conforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts, shall be considered grounds for the issuance of a variance. After proper public notice, a public hearing shall be held on each application for a variance. Due notice shall additionally be given to owners of properties abutting the subject property and/or located within 200 feet of the subject property.
C. After hearing and before granting any variance, the Board shall make findings that the requirements of this section have been met by the applicant, that the reasons set forth in the application justify the granting of the variance, that the variance is the minimum variance that will make proper the reasonable use of land, building or structure. The granting of the variance will be in harmony with the general purposes and intent of this Zoning Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
D. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this Zoning Ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this Zoning Ordinance.
E. Under no circumstances shall the Board grant a variance to permit a use not generally or by special use permitted in the district involved, or any use expressly or by implication prohibited by the terms of this Zoning Ordinance in such district.
(Ord. 12225. Passed 4-17-01.)
(5) Conditional Use Permit Procedure:
A. A conditional use permit shall be granted by the Board in accord with the considerations, limitations and conditions detailed in Article 1372 of the Zoning Ordinance.
B. The board of zoning appeals shall grant a Conditional Permit Use in accord with the zoning ordinance if it finds that the proposed use of the applicant:
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 the Conditional Permit Use 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 building; and
4. Will allow the intent of the zoning ordinance to be observed and substantial justice done.
(Ord. 13708. Passed 11-18-08.)
(f) SECRETARY AND EMPLOYEES. The Board of Zoning Appeals may appoint and fix the compensation of a secretary and such employees as are necessary for the discharge of its duties, all in conformity to and in compliance with the salaries and compensation theretofore fixed by the City Council.
(g) OFFICES. The governing body of the municipality in the case of a municipal Board of Zoning Appeals and the county court in the case of a county Board of Zoning Appeals shall provide the board with suitable offices for the holding of meetings and the preservation of plans, maps, documents and accounts, and shall provide by appropriation a sum sufficient to defray the reasonable expenses of the board.
(h) APPEALS TO THE BOARD; HEARINGS; NOTICE. Appeals to the Board of Zoning Appeals may be taken by any aggrieved person or by a requirement, decision or determination made by the City’s zoning office or Planning Commission. The zoning office from which the appeal is taken shall upon request of the Board transmit to it all documents, plans and papers constituting the record of the action from which an appeal was taken. The Board shall fix a reasonable time for the hearing of an appeal, give public notice thereof as well as notice to the interested parties, and decide the same within a reasonable time. The Board may require the party taking the appeal to assume the cost of public notice and notice to interested parties. At the hearing, any party may appear in person, by agent or by attorney.
(i) STAY OF WORK ON PREMISES. When an appeal from the decision of the zoning official has been taken and filed with the Board of Zoning Appeals, all proceedings and work on the premises concerning the decision shall be stayed unless the zoning official certifies to the Board that a stay would cause imminent peril to life or property by reason of facts stated in the certificate of the zoning official. In such case, proceedings on work shall not be stayed except by a restraining order that may be granted by the Circuit Court of Ohio County on application and notice to the zoning office and the owner or owners of the premises affected.
(j) DECISIONS OF BOARD OF ZONING APPEALS. In exercising the powers set forth in subsection (b), Powers and Duties above, the Board of Zoning Appeals may, so long as such action is in conformity with the terms of this Zoning Ordinance, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have powers of the zoning office from whom the appeal is taken.
(k) APPEAL FROM THE BOARD; PETITION FOR WRIT OF CERTIORARI. Every decision of the Board of Zoning Appeals shall be subject to review by certiorari. Any person, firm or corporation, aggrieved by any decision of the Board, may present to the Circuit Court of Ohio County a petition duly verified, setting forth that such a decision is illegal in whole or in part, and specifying the grounds of the illegality. All must be done in accordance and in the manner provided by West Virginia Code Article 24, Planning and Zoning, Part XVII Board of Zoning Appeals – Judicial Review.
(l) NOTICE TO ADVERSE PARTIES.
(1) Upon filing a petition for a writ of certiorari with the City Clerk, 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 and upon the chairman or secretary of the Board of Zoning Appeals. The adverse party or parties shall be any property owner whom or which 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 the names of more than three property owners, 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 in the remonstrance or document shall not be required. The notice shall state that a petition for a writ of certiorari has been filed asking for a review of the decision or order of the Board of Zoning Appeals, shall designate the premises affected and shall specify the date of the decision or order. Service of the notice by the sheriff on the chairman or secretary of the Board of Zoning Appeals shall constitute notice to the board and to the City and to 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.
(2) As an alternative to the requirements for notice prescribed in subsection (a) of this section, notice shall be sufficient upon a showing that the chairman or secretary of the Board of Zoning Appeals and all adjacent landowners to the subject property have received personal service of process of the notice containing information as required. As to all other interested parties, notice shall be sufficient if, by Class III-0 legal advertisement, a notice containing information as required is published in the City wherein the subject property is located.
(m) COURT OR JUDGE ACTION.
(1) Upon presentation of a petition for a writ of certiorari, the City of Wheeling Court in which the premises affected are located, or a judge thereof in vacation, shall direct the Board of Zoning Appeals to show cause within twenty days from the date of such citation why a writ of certiorari should not issue. If such board fails to show to the satisfaction of the court or judge that a writ should not issue, then the court or judge may allow a writ of certiorari directed to the Board of Zoning 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.
(2) The court or judge may consider and determine the sufficiency of the allegations of illegality contained in the petition without further pleadings and may make a determination and render a judgment with reference to the legality of the decision or order of the Board of Zoning Appeals on the facts set out in the petition and return to the writ of certiorari. If it shall appear to the court or judge that testimony is necessary for the proper disposition of the matter, the court or judge may take evidence to supplement the evidence and facts disclosed by the petition and return to the writ of certiorari, but no such review shall be by trial de novo. In passing upon the legality of the decision or order of the Board of Zoning Appeals, the court or judge may reverse or affirm, in whole or in part, or may modify such a decision or order.
(n) STAY OF WORK ON ALLOWANCE OF WRIT. The allowance of the writ of certiorari shall not stay proceedings or work on the premises affected by the decision or order to be brought up for review. The court or judge may, however, upon application and on notice to all parties to the decision or order and on due cause shown, grant such relief as the circumstances of the case may require, including an order staying the proceedings or work until final determination of the case by the court or judge thereof. Such staying order may be issued by the court or judge without requiring the petitioner to enter into a written undertaking with the adverse party or parties affected thereby for the payment of damages.
(o) RETURN TO WRIT. The return 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 or appealed order. The return must be verified by the secretary of the board. The board shall not be required to return the original papers. It shall be sufficient to return certified copies of all or a portion of the papers as may be called for by the writ.
(p) APPEAL FROM COURT OR JUDGE FINAL JUDGMENT. An appeal may be taken to the West Virginia supreme court of appeals from the final judgment of the court or judge reversing, affirming or modifying the decision or order of the Board of Zoning Appeals within the same time, in the same manner, and upon the same terms, conditions and limitations as appeals in other civil cases.