Legislation # 15-0220 Enactment Number Z15-12
Type Ordinance - Zoning Text Effective Date none
Introduction Date 7/8/2015
Title Ordinance To Amend And Re-Enact Articles I and II of Chapter 13 of The Zoning Ordinance Of The City Of Hampton, Virginia Entitled “Board of Zoning Appeals” By Amending Sections 13-1 through 13-17 Pertaining To The Composition, Powers, and Duties of the Board of Zoning Appeals and Variances, Special Exceptions, and Appeals of the Zoning Administrator.
 
Legislation History 15-0220
DateNotice Of ActionDescription
7/9/2015 Enactment Number Z15-12
7/8/2015 Adopted
7/8/2015 Held Public Hearing - there were no speakers on this item.
6/23/2015 Received By Clerk's Office
 
View Attachments 15-0220
FileTypeSizeDescription
ZOA 165-2015 Resolution.pdf PC Resolution 264K PC Resolution
2015 Acts of Assembly - HB 1849.pdf Other 132K 2015 Acts of Assembly - HB 1849
AMEND 13 BZA Variances REDLINE.doc Other 71K Red lines
 
Legislation Text 15-0220

 

City of Hampton, Virginia

Ordinance - Zoning Text

22 Lincoln Street

Hampton, VA 23669

www.hampton.gov

 

File Number: 15-0220

 

Enactment Number: Z15-12

 

Ordinance To Amend And Re-Enact Articles I and II of Chapter 13 of The Zoning Ordinance Of The City Of Hampton, Virginia Entitled Board of Zoning Appeals By Amending Sections 13-1 through 13-17 Pertaining To The Composition, Powers, and Duties of the Board of Zoning Appeals and Variances, Special Exceptions, and Appeals of the Zoning Administrator.

 

 

WHEREAS, the public necessity, convenience, general welfare, and good zoning practice so require;

 

BE IT ORDAINED by the Council of the City of Hampton, Virginia that Sections 13-1 through 13-7 of Chapter 13 of the Zoning Ordinance of the City of Hampton, Virginia, be amended and re-enacted as follows:

 

CHAPTER 13 BOARD OF ZONING APPEALS

 

ARTICLE 1 COMPOSITION, POWERS, AND DUTIES

 

Sec. 13-1. - Creation, appointment, term, etc.

 

(1) The board of zoning appeals (board) for the City of Hampton is currently existing under authority of prior law and Virginia Code 15.2-2308 and is hereby continued in existence.

 

(2) Membership. The board shall consist of five (5) residents of the City of Hampton appointed by the circuit court.

 

(3) Alternates. The circuit court shall appoint at least one (1) but not more than three (3) alternates to the board. The qualifications, terms and compensation of alternate members shall be the same as those of regular members. A regular member, when he knows he will be absent from or will have to abstain from any application at a meeting, shall notify the chairman twenty-four (24) hours prior to the meeting of such fact. The chairman shall select an alternate to serve in the absent or abstaining member's place and the records of the board shall so note. Such alternate member may vote on any application in which a regular member abstains.

 

(4) Qualifications. Members of the board shall hold no other public office in the city except that one (1) may be a member of the planning commission.

 

(5) Terms. The terms of office of board members shall be for five (5) years, except that original appointments shall be made for such terms that the term of one member shall expire each year.

 

(6) Vacancies. The secretary of the board shall notify the circuit court at least thirty (30) 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 shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves. A member whose term expires shall continue to serve until his successor is appointed and qualifies.

 

(7) Removal. Any board member or alternate may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the circuit court, after a hearing held after at least fifteen (15) days' notice.

 

Sec. 13-2. - Officers.

 

The board shall elect from its own membership a chairman and vice-chairman who shall serve annual terms as such, and may succeed themselves. The board shall appoint a secretary who shall not be a member of the board or an alternate member. It shall be the secretary's duty to keep the minutes and other records of the actions and deliberations of the board and to perform such other ministerial duties as the board shall direct.

 

Sec. 13-3. Quorum and voting.

 

For the conduct of any hearing and taking of any action, a quorum shall be not less than a majority of all members of the board. The concurring vote of a least three (3) members of the board shall be necessary to reverse any order, requirement, decision, or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under the ordinance or to effect any variance from the ordinance.

 

Sec. 13-4. - Procedures and records.

 

The board may make, alter, and rescind rules and forms for its procedures, consistent with ordinances of the city and general laws of the Commonwealth.

 

The board shall keep a full public record of its proceedings, including the recorded vote of each member upon each question, and shall submit a report of its activities to the council at least once each year.

 

Sec. 13-5. - Compensation.

 

Members of the board shall receive such compensation as may be established by the city council.

 

Sec. 13-6. - Meetings.

 

(1) The board by resolution may fix a schedule of regular meetings, and may also fix the day or days to which any meeting shall be continued if the chairman, or vice-chairman if the chairman is unable to act, finds and declares that weather or other conditions are such that it is hazardous for members to attend the meeting pursuant to Virginia Code 15.2-2309(8). Such finding shall be communicated to the members and the press as promptly as possible. All hearings and other matters previously advertised for such meeting in accordance with 15.2-2312 shall be conducted at the continued meeting and no further advertisement is required.

(2) The chairman with the concurrence of two (2) other members may call for special meetings. The time, date and location of any special meeting shall be communicated to the members and the press as promptly as possible.

(3) The chairman, or in his absence the vice-chairman, may administer oaths and compel attendance of witnesses.

(4) All meetings of the board shall be open to the public.

 

Sec. 13-7. Ex Parte communications, case materials, and proceedings.

 

The following applies to all cases brought before the board except for applications for special exceptions:

 

(1) The non-legal 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.

(2) The applicant, landowner or his 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 a particular case.

(3) 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 (i) discussions as part of a public meeting or (ii) discussions prior to a public meeting to which staff of the governing body, the applicant, landowner or his agent or attorney are all invited.

(4) 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, appellant or other person aggrieved under 15.2-2314, as soon as practicable thereafter, but in no event more than three business days of providing such materials to a member of the board. If the applicant, appellant or other person aggrieved under 15.2-2314 requests additional documents or materials be provided by the locality other than those materials provided to the board, such request shall be made pursuant to 2.2-3704. Any such materials furnished to a member of the board shall also be made available for public inspection pursuant to subsection F of 2.2-3707.

(5) Nothing in this section shall preclude the board from having ex parte communications with any attorney or staff of any attorney where such communication is protected by the attorney-client privilege or other similar privilege or protection of confidentiality.

 

Sec. 13-8. - Powers and duties.

 

The board shall have the following powers and duties:

(1) To hear and decide appeals from any order, requirement, decision, or determination made by the zoning administrator or other administrative officer in the administration or enforcement of the zoning ordinance as set forth in Article II.

 

(2) To review and decide applications for variances as set forth in Article II.

 

(3) To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary as set forth in Article II.

 

(4) To hear and decide applications for such special exceptions as may be authorized in the ordinance and to revoke special exceptions previously granted by the board as set forth in Article II.

 

(5) No provision of this chapter shall be construed as granting the board the power to rezone property or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by the city.

 

Secs. 13-9-13-10. Reserved.

 

ARTICLE 2. VARIANCES, SPECIAL EXCEPTIONS, AND APPEALS OF THE ZONING ADMINISTRATOR AND ORDERS OF ADMINISTRATIVE OFFICERS

 

Sec. 13-11. Applications for variances.

 

(1) Procedural requirements.

(a) Applications for variances may be made by any property owner, tenant, government official, department, board, or bureau. Such application shall be made to the zoning administrator in accordance with 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 to be acted upon by the board. The zoning administrator 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.

(b) No variance shall be considered except after notice and a hearing as required by Virginia Code 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. A party's actual notice of, or active participation in, the public hearing required herein shall waive the right of that party to challenge the validity of the proceeding due to the failure of the party to receive the written notice required herein.

(c) No variance shall be considered until any delinquent real estate taxes owed to the City of Hampton on the subject property have been paid, with the exception of applications sponsored by the City of Hampton.

(d) The board shall offer an equal amount of time in a hearing on the case to the applicant and the staff of the local governing body.

 

(2) Standard of review.

(a) The burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that his application meets the standard for a variance as defined in Virginia Code 15.2-2201 and the criteria set out in this section.

 

(b) A variance shall be granted if the evidence shows that the strict application of the terms of the ordinance would unreasonably restrict the utilization of the property or that 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 ordinance, and:

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

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

(iii) 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 ordinance;

(iv) 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

(v) The relief or remedy sought by the variance application is not available through a special exception process or the process for modification of a zoning ordinance pursuant to subdivision A4 of 15.2-2286 at the time of the filing of the variance application.

 

(c) In granting a variance, the board may impose such conditions regarding the location, character, and other features of the proposed structure or use as it may deem necessary in the public interest and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. Notwithstanding any other provision of law, general or special, the property upon which a property owner has been granted a variance shall be treated as conforming for all purposes under state law and local ordinance; however, the structure permitted by the variance may not be expanded unless the expansion is within an area of the site or part of the structure for which no variance is required under the ordinance. Where the expansion is proposed within an area of the site or part of the structure for which a variance is required, the approval of an additional variance shall be required.

 

(3) The board shall not reconsider substantially the same application for a period of one (1) year, except by motion of the board.

 

Sec. 13-12. Applications for special exceptions and revocation of special exceptions.

 

(1) Procedural requirements.

(a) Applications for special exceptions may be made by any property owner, tenant, government official, department, board, or bureau. Such application shall be made to the zoning administrator in accordance with 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 to be acted upon by the board. The zoning administrator 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.

(b) No special exception may be granted except after notice and hearing as provided by 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. A party's actual notice of, or active participation in, the public hearing required herein shall waive the right of that party to challenge the validity of the proceeding due to the failure of the party to receive the written notice required herein.

(c) No special exception shall be considered until any delinquent real estate taxes owed to the City of Hampton on the subject property have been paid, with the exception of applications sponsored by the City of Hampton.

(d) The board shall offer an equal amount of time in a hearing on the case to the applicant and the staff of the local governing body.

 

(2) Standard of review.

(a) In its review of special exception applications, the board shall consider the standards set forth in section 14-6 of the zoning ordinance.

 

(b) The board may impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with.

 

(3) The board shall not reconsider substantially the same application for a period of one (1) year, except by motion of the board.

 

(4) The board may revoke a special exception previously granted by the board if the board determines that there has not been compliance with the terms or conditions of the permit. No special exception may be revoked except after notice and hearing as provided by 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.

 

Sec. 13-13. Interpretations of a zoning district map where there is uncertainty as to the location of a district boundary.

 

(1) After notice to the owners of the property affected by the question, and after public hearing with notice as required by 15.2-2204, the board may interpret the map in such way as to carry out the intent and purpose of the ordinance for the particular section or district in question. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. The board shall not have the power to change substantially the locations of district boundaries as established by ordinance.

 

Sec. 13-14. - Appeals to the board from any order, requirement, decision, or determination made by an administrative officer.

 

(1) Procedural requirements.

(a) An appeal to the board may be taken by any person aggrieved or by any officer, department, board, or bureau of the city affected by any decision of the zoning administrator or from any order, requirement, decision or determination made by any other administrative officer in the administration or enforcement of the zoning ordinance or any modification of zoning requirements pursuant to section 15.2-2286 of the Code of Virginia.

 

(b) No appeal shall be considered except after notice and hearing as provided by 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail. A party's actual notice of, or active participation in, the public hearing required herein shall waive the right of that party to challenge the validity of the proceeding due to the failure of the party to receive the written notice required herein.

 

(c) The board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within ninety (90) days. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify an order, requirement, decision, or determination appealed from. In any appeal taken pursuant to this section, if the board's attempt to reach a decision results in a tie vote, the matter may be carried over until the next scheduled meeting at the request of the person filing the appeal. The board shall keep minutes of its proceedings and other official actions which shall be filed in the office of the board and shall be public records.

 

(d) The board shall offer an equal amount of time in a hearing on the case to the applicant, appellant, or other person aggrieved under Virginia Code 15.2-2314 and the staff of the local governing body.

 

(e) Any written notice of a zoning violation or written order of the zoning administrator shall include a statement informing the recipient that he may have a right to appeal the notice of a zoning violation or a written order within thirty (30) days in accordance with this section, and that the decision shall be final and unappealable if not appealed within thirty (30) days. The appeal period shall not commence until the statement is given. A written notice of a zoning violation or written order of the zoning administrator that includes such statement sent by registered or certified mail to, or posted at, the last known address of the property owner as shown on the current real estate tax assessment books or current real estate tax assessment records shall be deemed sufficient notice to the property owner and shall satisfy the notice requirements of this section. The appeal shall be taken within thirty (30) days after the decision appealed from by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

 

(f) A decision by the board on an appeal taken pursuant to this section shall be binding upon the owner of the property which is the subject of such appeal only if the owner of such property has been provided notice of the zoning violation or written order of the zoning administrator in accordance with this section. The owner's actual notice of such notice of zoning violation or written order or active participation in the appeal hearing shall waive the owner's right to challenge the validity of the board's decision due to failure of the owner to receive the notice of zoning violation or written order.

 

(g) An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the board that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order granted by the board or by a court of record, on application and on notice to the zoning administrator, and for good cause shown.

 

(h) In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by any zoning administrator or other administrative officer after sixty (60) days have elapsed from the date of the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer unless it is proven that such written order, requirement, decision or determination was obtained through malfeasance of the zoning administrator or other administrative officer or through fraud. The sixty-day limitation period shall not apply in any case where, with the concurrence of the city attorney, modification is required to correct clerical errors.

 

(2) Standard of review on appeal to the board.

 

(a) The decision on 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.

 

(b) At a hearing on an appeal, the administrative officer shall explain the basis for his determination after which the appellant has the burden of proof to rebut such presumption of correctness by a preponderance of the evidence.

 

(c) The board shall consider the purpose and intent of any applicable ordinances, laws, and regulations in making its decision.

 

Sec. 13-15. - Proceedings to prevent construction of a building in violation of zoning ordinance.

 

Where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected, or abated as a violation of the zoning ordinance, by suit filed within fifteen (15) days after the start of construction by a person who had no actual notice of the issuance of the permit, the court may hear and determine the issues raised in the litigation, even though no appeal was taken from the decision of the administrative officer to the board of zoning appeals.

 

Sec. 13-16. - Relation of zoning ordinance to other laws.

 

Whenever the regulations made under the zoning ordinance require a greater width or size of yards, courts, or other open spaces; require a lower height of building or less number of stories; require a greater percentage of lot to be left unoccupied; or impose other higher standards than area required in any other statute or local ordinance or regulation, the provisions of the zoning ordinance shall govern. Whenever the provisions of any other statute or local ordinance or regulations require a greater width or size of yards, courts or other open spaces; require a lower height of building or less number of stories; require a greater percentage of lot to be left unoccupied; or impose other higher standards than are required by this ordinance, the provisions of such statute or local ordinance or regulation shall govern.

 

Sec. 13-17. - Fees.

 

Every application that comes before the board, whether an appeal of the zoning administrator's decision, a variance or a special exception, shall be accompanied by the nonrefundable fee from the following schedule. The sum shall be payable to the City of Hampton, incidental to reviewing, publishing, and reporting the application:

(1) One hundred dollars ($100.00) for any application that is associated with a current or proposed one-family residential use of property; and

(2) Two hundred fifty dollars ($250.00) for any application that is associated with a current or proposed use of property that is not one-family residential.

 

Secs. 13-18-13-20. Reserved.

 

Adopted at the regular meeting of the City Council of the City of Hampton, Virginia held on July 8, 2015.

 

 

 

Signed by ____________________________ Date _________________

George E. Wallace, Mayor

 

 

 

 

Attested by ____________________________ Date _________________

Katherine K. Glass, CMC

Clerk of the Council