Chapter 18.200
BOARD OF ZONING APPEALS

Sections:

18.200.010    Variances.

18.200.020    Appeal of the zoning administrator’s decision to the board of zoning appeals.

18.200.030    Court review of board of zoning appeals decisions.

18.200.040    Repealed.

18.200.050    Repealed.

18.200.060    Repealed.

18.200.010 Variances.

(1) A variance from the Staunton City Code may be granted to allow, in accordance with the Code of Virginia, certain reasonable deviations from those provisions of the ordinance regulating the shape or area of a lot or parcel of land or the size, area, bulk, or location of a building or restrict the utilization of the property, and such need for a variance would not be shared generally by other properties, and provided such variance is not contrary to the purpose of the ordinance.

(2) Standards for Variances. The applicant for a variance has the burden of proof to prove by a preponderance of the evidence that the application meets the standards for a variance set forth in the Code of Virginia, and a variance permit shall be granted if the evidence shows that all of the following criteria are met:

(a) The strict application of the terms of the zoning code would unreasonably restrict the utilization of the property or the granting of the variance would alleviate a hardship due to a physical condition relating to the property or improvements thereon at the time of the effective date of the zoning code; and

(b) The property interest for which the variance is requested was acquired in good faith and any hardship was not created by the applicant for the variance; and

(c) The granting of the variance will not be of substantial detriment to the adjacent property and nearby properties in the proximity of that geographical area; and

(d) The condition or situation of the property concerned 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 the zoning code; and

(e) The granting of the variance does not result in a use that is not otherwise permitted on such property or a change in the zoning classification of the property; and

(f) The relief or remedy sought by the variance application is not available through a special exception process that is authorized in the zoning code pursuant to subdivision 6 of Section 15.2309 of the Code of Virginia or the process for modification of a zoning ordinance pursuant to subdivision A4 of Section 15.2-2286 of the Code of Virginia at the time of the filing of the variance application; and

(g) Variances shall not be granted to allow a use otherwise excluded from the particular district in which requested. No provision of this zoning code shall be construed as granting the board the power to rezone land or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by council; and

(h) Any variance authorized under the provisions of this chapter shall be the minimum adjustment necessary for the reasonable use of the land; and

(i) No variance permit shall be granted to any standard or requirement of any other part of the Staunton City Code; and

(j) A variance shall not be granted that allows a principal or accessory building to exceed applicable maximum size standards set out in the zoning code.

(3) Procedural Requirements for Granting of a Variance.

(a) Before the board shall have the authority to grant a variance, it shall give notice of and hold a public hearing pursuant to the requirements of the Code of Virginia; provided, that when giving notice to the owners, etc., immediately across the street or road from the property affected, the board may give such notice by first class mail;

(b) The applicant claiming the variance has the burden of showing by a preponderance of evidence that the standards for variances set out in subsection (2) of this section have been met;

(c) Any materials relating to a particular case, including a staff recommendation or report furnished to a member of the board, shall be made available without cost to such applicant as soon as practicable thereafter, but in no event more than three business days of providing such materials to a board member. If the applicant requests additional documents or materials to be provided by the city other than those materials provided to the board, such request shall be made pursuant to Section 2.2-3704 of the Code of Virginia. Any such materials furnished to a board member shall also be made available for public inspection pursuant to Section 2.2-3707.F of the Code of Virginia;

(d) The nonlegal staff of the city may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to a particular case. The applicant, landowner or the applicant’s agent or attorney may have ex parte communications with a member of the board prior to the hearing but may not discuss the facts or law relative to the particular case. If any ex parte discussion of facts or law in fact occurs, the party engaging in such communication shall inform the other party as soon as practicable and advise the other party of the substance of such communication. For purposes of this section, regardless of whether all parties participate, ex parte communications shall not include discussions as part of a public meeting, or discussions prior to a public meeting to which city staff, the applicant, landowner or his agent or attorney are all invited, including a view of the property. For purposes of this section, “nonlegal staff of the city” means any staff who is not in the office of the attorney for the city, or for the board, or who is appointed by special law pursuant to Section 15.2-1542 of the Code of Virginia. Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff of any attorney where such communications are protected by the attorney-client privilege or other similar privilege or protection of confidentiality. (Ord. 2016-15. Zoning ordinance Art. 7, § 2).

18.200.020 Appeal of the zoning administrator’s decision to the board of zoning appeals.

(1) Power of Board of Zoning Appeals. The board of zoning appeals shall have the power to hear and decide appeals from any order, requirement, decision, or determination made by an administrative officer in the administration or enforcement of the Staunton Zoning Code. The decision on such appeal shall be based on the board’s judgment of whether the administrative officer was correct. The determination of the administrative officer shall be presumed to be correct.

(2) Hearing. At a hearing on an appeal, the zoning administrator or designee shall explain the basis for the appeal determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence.

(3) Consideration. The board shall consider any applicable ordinances, law and regulations in making its decision.

(4) Compliance. Any appeal of a determination of the zoning administrator to the board shall be in compliance with Virginia law, notwithstanding any other provision of law, general or special.

(5) Short-Term, Recurring Violations. The appeal period for notice of violations for short-term, recurring violations involving temporary or seasonal commercial uses, parking of commercial trucks in residential zoning districts, maximum occupancy limitations of residential dwelling unit, or similar violations, shall be 10 days. (Ord. 2016-15; Ord. 2009-04. Zoning ordinance Art. 7, § 2).

18.200.030 Court review of board of zoning appeals decisions.

(1) Petition. Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the locality, may file with the clerk of the circuit court for the city a petition specifying the grounds on which aggrieved within 30 days after the final decision of the board of zoning appeals. The petition shall be styled “In re: [date] Decision of the Board of Zoning Appeals of the City of Staunton.”

(2) Court Procedures. Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of zoning appeals and shall prescribe therein the time within which a return thereto must be made and served on the clerk of the board, or if no secretary exists, the chair of the board, which shall not be less than 10 days and may be extended by the court and otherwise proceed in accordance with law. Any review of decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings.

(3) Costs. Costs shall not be allowed against the board unless it shall appear to the court that the board acted in bad faith or with malice in making the decision appealed from. (Ord. 2016-15. Zoning ordinance Art. 7, § 2).

18.200.040 Standards for variances.

Repealed by Ord. 2016-15. (Zoning ordinance Art. 7, § 2).

18.200.050 Requirements for the granting of a variance.

Repealed by Ord. 2016-15. (Zoning ordinance Art. 7, § 2).

18.200.060 Court review of board of zoning appeals decision.

Repealed by Ord. 2016-15. (Ord. 2009-04. Zoning ordinance Art. 7, § 2).