The Board of Zoning Appeals is a court
appointed group of 5 or seven residents of a locality. They cannot
hold any public office within the locality, except that one of them
may be on the Planning Commission. (§ 15.2-2308.)
Although far too long to place here the
Virginia Codes are clear on the Powers and duties of boards of zoning
appeals in § 15.2-2309. Here are some sections of that document:
“Boards of zoning appeals shall have
the following powers and duties:
1. To hear and decide appeals from any order, requirement,
decision or determination made by an administrative officer in the
administration or enforcement of this article or of any ordinance
adopted pursuant thereto. The decision on such appeal shall be based
on the board's judgment of whether the administrative officer was
correct. The board shall consider the purpose and intent of any
applicable ordinances, laws and regulations in making its decision.
To authorize upon appeal or original application in specific
cases such variance as defined in § 15.2-2201
from the terms of the ordinance as will not be contrary to the
public interest, when, owing to special conditions a literal
enforcement of the provisions will result in unnecessary hardship;
provided that the spirit of the 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 at the
time of the effective date of the ordinance, or where by reason of
exceptional topographic conditions or other extraordinary situation
or condition of the piece of property, or of the condition,
situation, or development of property immediately adjacent thereto,
the strict application of the terms of the ordinance would
effectively prohibit or unreasonably restrict the utilization of the
property or where the board is satisfied, upon the evidence heard by
it, that the granting of the variance will alleviate a clearly
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 the ordinance.
No such variance shall be authorized by the board unless it finds:
That the strict application of the ordinance would produce
undue hardship relating to the property;
That the hardship is not shared generally by other properties
in the same zoning district and the same vicinity; and
That the authorization of the 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.
It is not always necessary for the a
decision by the zoning administrator to be appealed to the Board of Zoning Appeals.
According to §15.2-2313 :
Proceedings to prevent
construction of building in violation of zoning ordinance: “Where
a building permit has been issued and the construction of the
building for which the 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 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. “
Two
of other roles of the board of zoning appeals include but are not
limited to:
“6. To hear and decide applications for special exceptions as
may be authorized in the ordinance. 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.
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.
7. To revoke a special exception previously granted by the board
of zoning appeals 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. If a governing body reserves unto itself the right to
issue special exceptions pursuant to § 15.2-2286,
and, if the governing body determines that there has not been
compliance with the terms and conditions of the permit, then it may
also revoke special exceptions in the manner provided by this
subdivision. “
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Keeping in mind that this is just a
short overview, it would seem that the Board of Zoning Appeals has a
pretty important job. In my reading of the entire document, it
appears to me that the board of zoning appeals essentially serves as
a buffer between the Town and the Court system. It provides a way to
make sure that decisions are not made in an arbitrary or capricious
way that could result in legal action against the town. It also gives
an extra step in the process whereby the needs/wants of the one are
balanced by the needs/wants of the many.
I think that the most significant
portion of this is where 'undo hardship' in section 2 (a), (b), and
(c) above. While a hardship to an individual is certainly important
to that individual, the role of the board of zoning appeals is to
look beyond the individual to see the neighborhood as a comparative
base for evaluations. Just because one property owner is negatively
affected by a particular ordinance, it does not mean that the proposed change should occur.
What recourse do you have if you do not
agree with the decision of the board of zoning appeals? According to
§15.2-2314
Certiorari to review
decision of the board,
“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 county or city a petition
specifying the grounds on which aggrieved within 30 days after the
final decision of the board.” It is further noted that “The court
may reverse or affirm, wholly or partly, or may modify the decision
brought up for review. “
Then
the questions becomes who is responsible for paying the court costs.
The same Virginia Code gives the following: “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. In the event the decision of the board is affirmed and the
court finds that the appeal was frivolous, the court may order the
person or persons who requested the issuance of the writ of
certiorari to pay the costs incurred in making the return of the
record pursuant to the writ of certiorari. If the petition is
withdrawn subsequent to the filing of the return, the board may
request that the court hear the matter on the question of whether the
appeal was frivolous. “
If you do not agree with the determination of the Zoning Administrator or the Town Council, you have 30 days to appeal this to the BZA (there is a 60 day deadline). This appeal to the BZA is the next step before you go to Court to argue your point. A failure to go to the BZA first can result in the loss of your Court case simply because the case was not 'ripe' (you did not follow the process of appeals that was offered). Montgomery County puts this information directly on the letter that goes to the applicant so that he/she clearly knows what to do to submit an appeal. I do not know whether this is included on Christiansburg's response letters, but it would be nice to know that citizens are being informed of ALL their legal rights in a timely manner, and that Christiansburg has been in compliance with the Virginia Code that has required this since 1993. ( I have seen letters from Montgmery County. I have not seen any from Christiansburg, yet!)
Another good question coming in a future blog? Are the members of the Board of Zoning Appeals trained and certified? I will be letting you know all about that later.