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2009-20ORDINANCE NO. 200J-20 AN ORDINANCE REPEALING, AMENDING AND READOPTING CHAPTEK 110, ARTICLE XXIII OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA, PERTAINING TO THE BOARD OF ZONING APPEALS BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that Chapter 1 10, Article XXIII of the Code of the City of Fairfax, Virginia, pertaining to the Board of Zoning Appeals, is hereby repealed, amended, and readopted in its entirety, as follows: ARTICLE XXIIL BOARD OF ZONING APPEALS Sec. 110-1101. DeBnitions_ The following words, terms and phrases when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: "l~he teen "board" when used herein shall iriean the board of zoning appeals. Sec_ 110-1102_ Established; appointment of members. A board of zoning appeals is hereby established. The membership shall consist of five members appointed pursuant to Code of Virginia, § 15.2-2308_ Sec_ 110-1103_ Powers and duties. The board shall have the following powers and duties: ~ 1 J To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this chapter. ~2~ To authorize upon appeal or original application in specific cases such variance from the terms of this chapter 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 this chapter will 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 from which this chapter is derived, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property, or of the condition, situation, or development of property immediately adj accnt thereto, the strict application of the terms of this chapter 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 such variance will alleviate a clearly demonstrable hardship, 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 chapter. No such variance shall be authorized by the board unless it finds: a_ That the strict application of this chapter would produce undue hardship relating to the property. b. That the hardship is not shared generally by other properties in the same zoning district and 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. No such variance shall be authorized except aRer notice and hearing as required by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owner~s~, their agents or the occupants of abutting property and property immediately across the street or road from the property In authorizing 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, the property upon which a property owner has been granted a variance shall be treated as conforming for all purposes; 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 this chapter. 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) To hear and decide appeals from the decision of the zoning administrator. No such appeal shall be heard except after notice and hearing as provided by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owner(s), 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. (4) To hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. After notice to the owners of the property affected by any such question, and after public hearing with notice as required by Code of Virginia, § 15.2-2204, the board may interpret the map in such way as to carry out the intent and purpose of this chapter for the particular section or district in question. However, when giving any required notice to the owner(s), 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 this chapter. (5) No provision of this section 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 council. (6) To hear and decide applications for such special exceptions as may be authorized in article II, division 13 of this chapter. (7) All other powers expressly granted to the board pursuant to Code of Virginia, § 15.2-2309, except as expressly modified by this chapter. Sec. 110-1104. Applications for variances. 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. No such variances shall be authorized except after notice and hearing as required by Code of Virginia, § 15.2-2204. However, when giving any required notice to the owner(s), 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 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. Sec. 110-1105. Appeals to board. 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 any other administrative officer in the administration or enforcement of this chapter3 e~any ordinance adopted pursuant thereto, or any modification of zoning requirements pursuant to Code of Virginia, § 15.2-2286. Any written notice of a zoning violation or a 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 30 days in accordance with this chapter, and that the decision shall be final and unappealable if not appealed within 30 days. The appeal period shall not commence until such notice is given. A written notice of a zoning violation or a 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 chapter. Such appeal shall be taken within 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. 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. Sec. 110-1106. Procedure on appeal. 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 make its decision within 90 days of the filing of the application or appeal. In exercising its powers the board may reverse or affirm, wholly or partly, or may modify, an order, requirement, decision or determination appealed from. The concurring vote of a majority of the membership 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 this chapter or to effect any variance from this chapter. 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. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. Sec. 110-1107. Certiorari to review decision of board. (a) 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 city, may present to the circuit court for the city a petition specifying the grounds on which aggrieved within 30 days after the final decision of the board. (b) Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten 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. (c) The board 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 the portions thereof as may be called for by the 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. (d) 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 evidence as it may direct and report the evidence 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. (e) In the case of an appeal from the board to the circuit court of an order, requirement, decision or determination of a zoning administrator or other administrative officer in the administration or enforcement of any ordinance or provision of state law, or any modification of zoning requirements pursuant to Code of Virginia, § 15.2-2286, the findings and conclusions of the board of zoning appeals on questions of fact shall be presumed to be correct. The appealing party may rebut that presumption by proving by a preponderance of the evidence, including the record before the board, that the board erred in its decision. Any party may introduce evidence in the proceedings in the court. The court shall hear any arguments on questions of law de novo. (fJ In the case of an appeal by a person of any decision of the board that denied or granted an application for a variance, or application for a special exception, the decision of the board shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that the board applied erroneous principles of law, or where the discretion of the board in involved, the decision of the board was plainly wrong and in violation of the purpose and intent of the zoning ordinance. (g) 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. If 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. Sec. 110-1108. Authority of city council to grant certain variances. The city council hereby reserves to itself the right to authorize any variance from the height limitation found in any zoning district. This ordinance shall become effective as provided by law. INTRODUCED: July 14, 2009 PUBLIC HEARING: July 28, 2009 ENACTED: July 28, 2009 ATTEST: City lClerk Votes Councilwoman Cross Aye Councilman Drummond Aye Councilman Greenfield Aye Councilman Meyer Aye Councilman Rasmussen Aye Councilman Stombres Aye