Article XVI. Board of Zoning Appeals.
Sec. 62. Composition; appointment and removal; terms; vacancies;
officers; quorum.
1. The board of zoning appeals shall consist of five residents
of the city, appointed by the corporation court of the
city. Their terms of office shall be for five years each, and the
term of office of one member shall expire each year. The secretary
of the board shall notify the corporation court at least
thirty days in advance of the expiration of any term of office,
and shall also notify the court promptly if any vacancy occurs.
Appointments to fill vacancies on the board shall be only
for the unexpired portion of the term. Members may be reappointed
to succeed themselves. Members of the board shall
hold no other public office in the city; except, that one may
be a member of the city planning commission. A member
whose term expires shall continue to serve until his successor
is appointed and qualifies. Any member of the board may
be removed for malfeasance, misfeasance or nonfeasance in
office or for other just cause by the corporation court, after
hearing held after at least fifteen days notice.
2. The board of zoning appeals shall select one of its members
as chairman and one as vice-chairman and one as secretary,
who shall serve in such capacity for a term of one year
and until their successors have been selected. A majority of
the board shall constitute a quorum for the transaction of
business. (2-17-58, § 33-62; 6-7-65, § 2.)
Sec. 63. Rules; meetings; records.
1. Rules. The board shall adopt such rules from time to
time as it may deem necessary to carry out the provisions of
this ordinance.[31]
2. Meetings. Meetings of the board shall be held at the call
of the chairman, and at such other times as the board may
determine. Such chairman, or in his absence, the acting chairman
may administer oaths and compel the attendance of witnesses.
3. Records and minutes. The board shall keep minutes of
its proceedings, showing the vote of each member upon each
question or, if absent or failing to vote, indicating such fact
and shall keep records of its examinations and other official
actions, all of which shall be immediately filed in the office of
the board and shall be a public record.
4. Reports to council. The board of zoning appeals shall
submit a report of its activities to the city council at least
once each year. (2-17-58, § 33-63; 6-7-65, § 3.)
Sec. 64. By whom and how appeals taken; fee.
1. 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 city affected by any decision of the building
official in the administration or enforcement of this ordinance.[32]
Such appeal shall be taken within thirty days after
the decision appealed from by filing with the building official
and with the board of zoning appeals a notice of appeal,
specifying the grounds therefor. The building official shall
forthwith transmit to the board all the papers constituting the
record upon which the action appealed from was taken.
2. Each appeal to the board of zoning appeals shall be accompanied
by a fee of twenty-five dollars to defray the expense
of processing such appeal, such fee to be paid to the
director of finance. (2-17-58, § 33-64; 6-7-65, § 4.)
Sec. 65. Stay of proceedings.
An appeal stays all proceedings in furtherance of the action
appealed from unless the building official certifies to the board
of zoning appeals after the notice of appeal shall have been
filed with the secretary that by reason of facts stated in the
certificate a stay would, in his opinion, cause imminent peril
to life or property. In such case, proceedings shall not be
stayed otherwise than by a restraining order which may be
granted by the board of zoning appeals or by a court of record
on application or notice to the building official and on due
cause shown. (2-17-58, § 33-65.)
Sec. 66. Hearing of appeal.
When an appeal is filed with the secretary of the board
of zoning appeals, the petitioner shall on that same day post
a sign on each lot included in the petition stating that an
appeal has been filed with the board of zoning appeals for
a variance and/or exception to the Zoning Ordinance. Such
signs shall be furnished by the building official and shall be
located so as to be visible from the street. It shall be the duty
of the petitioner or petitioners to maintain, or to replace
the signs if they are destroyed, until such time as the board
of zoning appeals has disposed of the petition.
The board of zoning appeals shall fix a reasonable time for
the hearing of the appeal, give public notice thereof as required
by section 15.1-431 of the Code of Virginia, as well as
due notice to the parties in interest, and decide the same within
sixty days.
At the public hearing held by the board of zoning appeals
on the petition, the petitioner shall affirm that such posting
has been done; provided however, that if such signs are obliterated
or destroyed during the period required to be
posted such fact shall not be essential to jurisdiction of the
petition by the board of zoning appeals, if the petitioner
satisfies the board of zoning appeals that such signs were
originally properly posted and that such obliteration or destruction
occurred without petitioner's knowledge. (2-17-58,
§ 33-66; 6-7-65, § 5; 2-6-67.)
Sec. 67. Powers of board generally; variances and exceptions.
The board of zoning appeals, in appropriate cases and subject
to appropriate conditions and safeguards, shall have the
following powers:
1. To hear and decide appeals where it is alleged there is
any error in any order, requirement, decision or determination
made by the building official in the enforcement of this ordinance[33]
or of any other ordinance adopted pursuant hereto.
2. To authorize, upon appeal in specific cases, such variance
from the terms of this ordinance[34]
as will not be contrary to
the public interest, when, owing to special conditions, a literal
enforcement of the provisions of this ordinance would result
in unnecessary hardship; provided, that the spirit of this ordinance
shall be observed and substantial justice done, as follows:
When a property owner can show that his property was
acquired in good faith and where by reason of the exceptional
narrowness, shallowness, size or shape of a specific piece of
property as of February 17, 1958, or where by reason of exceptional
topographic conditions or other extraordinary situation
or condition of such piece of property, or of the use or development
of property immediately adjacent thereto, the strict
application of the terms of this ordinance would effectively
prohibit or unreasonably restrict the use of the property, or
where the board is satisfied, upon the evidence heard by it,
that the granting of such variance will alleviate a fairly demonstrable
hardship approaching confiscation, as distinguished
from a special privilege or convenience sought by the
applicant; provided, that all variances shall be in harmony
with the intended spirit and purpose of this ordinance. No
such variance shall be authorized by the board unless it finds:
(a) That the strict application of this ordinance would
produce undue hardship.
(b) That such hardship is not shared generally by other
properties in the same zoning district in the same vicinity.
(c) That the authorization of such variance will not be
of substantial detriment to adjacent property and that the
character of the district will not be changed by the granting
of the variance.
(d) That the authorizing of the variance will not impair
an adequate supply of light and air to adjacent property or
unreasonably increase the congestion of public streets, or
increase the danger of fire or imperil the public safety or unreasonably
diminish or impair established property values
within the surrounding areas, or in any other respect impair
the health, safety, comfort, moral or general welfare of the
inhabitants of the City of Charlottesville.
(e) That the conditions constituting a hardship have
not been created by the applicant's own acts.
No such variance shall be authorized except after notice
and hearing, as required by section 15.1-431 of the Code of
Virginia.
No variance shall be authorized unless the board finds that
the condition or situation of the property concerned or the
intended use of the property is not of so general or recurring
a nature as to make reasonably practicable the formulation of
a general regulation to be adopted as an amendment to this
ordinance.
In authorizing a variance, the board may impose such conditions
regarding the location, character and other features
of the proposed structure or use it may deem necessary
in the public interest, and may require a guarantee or bond to
insure that the conditions imposed are being and will continue
to be complied with.
3. To hear and determine applications for special exceptions
to the terms of this ordinance. Applications for special
exceptions may be made by any property owner, tenant, government
official, department, board or bureau. Such applications
shall be made to the building official in accordance with
the rules adopted by the board. The application and accompanying
maps, plans or other information shall be transmitted
promptly to the secretary of the board, who shall place
the matter on the docket, advertise a public hearing thereon,
which shall be held not less than ten days after such advertising,
and give written notice of such hearing to the
parties in interest. The building official shall also transmit a
copy of the application to the planning commission, which
may send a recommendation to the board or appear as a party
at the hearing. Such special exceptions shall include and be
limited to the following:
(a) Permit the extension of a district where the boundary
line of a district divides a lot or tract held in single
ownership as of February 17, 1958.
(b) Interpret the provisions of this ordinance where the
street layout actually on the ground, varies from the street
layout as shown on the district map made a part of this ordinance.
(c) Permit the erection and use of a building or the use
of premises in any location for a public service corporation
for public utility purposes which the board deems reasonably
necessary for the public convenience and welfare.
(d) Permit the occupancy of a single detached residence
in an R-1 or R-2 residential district by more than two housekeeping
units, provided:
(1) That such residence shall have been in existence
on January 21, 1932.
(2) That such multiple occupancy shall not be deemed
to alter the character of the neighborhood in which such residence
is located.
(3) That the outside shape of the residence shall not
be altered in any material particular.
(e) Permit the completion and use of any dwelling that
was designed and substantially completed prior to July 23,
1964, for two-family use; provided, that the owner can prove
to the board's satisfaction that the house was designed and
intended for two-family use when originally constructed. Any
dwelling for which an exception under this paragraph (e) is
granted shall be considered a conforming use.
No special exception may be granted pursuant to this section
except after notice and hearing as provided by section
15.1-431 of the Code of Virginia.
Any privilege or variance granted by the board of zoning
appeals under subsection 3 of this section shall be considered
cancelled if the applicant does not avail himself of such
privilege within ninety days from the date of issuance of such
privilege; provided, that the board, for good cause shown,
may, upon proper application and after due notice, extend
such privilege or variance for a period not to exceed ninety
additional days.
In exercising the powers granted to it, the board of zoning
appeals may reverse or affirm, wholly or partly, or may modify
the order, requirement, decision or determination appealed
from. The concurring vote of three members shall be necessary
to reverse any order, requirement, decision or determination
of the building official or to decide in favor of the applicant
on any matter upon which it is required to pass under
this ordinance, or to effect any variance from this ordinance.
(2-17-58, § 33-67; 10-5-64; 6-7-65, § 6.)
Sec. 68. Judicial review of decisions of board.
1. Any person or persons jointly or severally aggrieved by
any decision of the board of zoning appeals or any taxpayer
or any officer, department, board or bureau of the municipality
may present to the corporation court of the City of
Charlottesville a petition, duly verified, setting forth that such
decision is illegal, in whole or in part, specifying the grounds
of the illegality. Such petition shall be presented to the court
within thirty (30) days after the board has rendered its decision.
The date of rendition shall be the date on which the
board, by vote, makes its ruling, and shall not depend on approval,
entry or signing of the board's minutes.
2. Upon the presentation of such petition, the court may
allow a writ of certiorari directed to the board of zoning
appeals to review such decisions of the board of zoning appeals
and shall prescribe therein the time within which a
return thereto must be made and served upon the realtors'
attorney, which shall not be less than ten (10) days and may
be extended by the court. The allowance of the writ shall not
stay proceedings upon the decision appealed from, but the
court may, on application, on notice to the board and on due
cause shown, grant a restraining order.
3. The board of zoning appeals shall not be required to
return the original papers acted upon by it, but it shall be
sufficient to return certified or sworn copies thereof, or of
such portions thereof as may be called for by such writ. The
return shall concisely set forth such other facts as may be
pertinent and material to show the grounds of the decision
appealed from and shall be verified.
4. If, upon the hearing, it shall appear to the court that
testimony is necessary for the proper disposition of the matter,
it may take evidence or appoint a commissioner to take
such evidence as it may direct and report the same to the
court with his findings of fact and conclusions of law, which
shall constitute a part of the proceedings upon which the
determination of the court shall be made. The court may
reverse or affirm, wholly or partly, or may modify the decision
brought up for review.
5. Costs shall not be allowed against the board, unless it
shall appear to the court that it acted in bad faith or with
malice in making the decision appealed from.
6. All issues in any proceeding under this section shall have
preference over all other civil actions and proceedings. (2-1758,
§ 33-68; 7-6-59; 6-7-65, § 7.)
