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.)
