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HomeMy WebLinkAbout2016-07 Ordinance 2016-07 Ordinance Amending the Zoning Regulations For the Board of Zoning Appeals WHEREAS, the provisions of the Code of Virginia governing boards of zoning appeals were amended by the 2015 General Assembly; and, WHEREAS, that portion of the Zoning Regulations of the Town of Pulaski dealing with the Board of Zoning Appeals required amending and updating to bring the Town's regulations into compliance with the changes in state law; and, WHEREAS, the Planning Commission and Town Council conducted duly noticed public hearings on February 8, 2016 and March 1, 2016 respectively, wherein public comments were received and considered concerning amending provisions of the Board of Zoning Appeals regulations; NOW, THEREFORE be it ORDAINED by the Town Council of the Town of Pulaski, Virginia, sitting in regular session this 15th day of March 2016, that Section 1102 "Definitions" of the Zoning Regulations of the Town of Pulaski Virginia is hereby amended to include the definitions listed in Attachment A, affixed hereto and expressly made part of this ordinance; FURTHER ORDAINED that Sections 705 through 708 of the Zoning Regulations are hereby amended as set forth in Attachment B, affixed hereto and expressly made part of this ordinance. This ordinance is effective upon adoption and is hereby adopted this 15th day of March 2016 by the duly recorded vote of the Town Council of the Town of Pulaski, Virginia as follows: Heather L. Steele -Aye H.M. Kidd -Aye Gregory C. East -Aye James A. Radcliffe -Aye David L. Clark -Absent Lane R. Penn -Aye THE TOWN OF PULASKI, VIRGINIA BY: = =. Worrell,' ayor ATTEST: Patricia Cruise, Clerk of Council I. Attachment A Ordinance 2016-07 List of Definition Amendments Section 1102 1. Section 1102-Change in definition of a variance as follows: "Variance" means in the application of a zoning ordinance, a reasonable deviation from those provisions regulating the shape, size or area of a lot or parcel of land; or the size, height, area, bulk or location of a building or structure when the strict application of the ordinance would unreasonably restrict the utilization of the property and such need for a variance would not be generally shared by other properties and provided such variance is not contrary to the purpose of the ordinance. It shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning. 015.2-2201 as amended) 2. Section 1102-Addition of a definition for the term "determination": "Determination" means any order, requirement, decision or determination made by an administrative officer. (15.2-2309 (1), as amended) 3. Section 1102-Addition of a definition of"non-legal staff of the governing body". "Non-legal staff of the governing body" means any staff who is not in the office of attorney for the locality or for the board who is appointed by special law or pursuant to §15.2-2214. 015.2-2308.1) added. Attachment B Ordinance 2016-07 Section 705 Organization of the Board of Zoning Appeals The Board of Zoning Appeals shall be organized as set forth in the Code of Virginia 1950, as amended, §§15.2-2308-15.2-2315. 705.1 Board of Zoning Appeals: Composition; Nomination of Members; Appointment of Members; Vacancies; Terms of Office; Qualifications; Compensation; Alternate Members; Contracting for Services; Removal from Office. 705.1-1. Membership & Term of Office. The Board of Zoning Appeals for the Town of Pulaski, Virginia shall consist of five (5) regular members and two (2) alternates. Both regular members and alternates shall be appointed by the Circuit Court of Pulaski County for terms of five (5) years except that original appointments shall be made for such terms that the term of one member shall expire each year. Appointments shall be made only for the unexpired portion of the term. 1 705.1-2. Notification of Vacancies. The secretary of the board shall notify the court promptly if any vacancy occurs and shall notify the court a minimum of thirty (30) days in advance of the expiration of a term of office. A member whose term expires shall continue to serve until their successor is appointed and qualifies. Members may be appointed to succeed themselves. 2 705.1-3. Qualifications for Office. Both members and alternates of the board: (1) shall be residents of the locality; and, (2) shall hold no other public office in the locality, except that one member may be a member of the planning commission.3 705.1-4. Nomination of Prospective Members by Council. The Council may approve a written resolution, duly voted upon and recorded in the public records of the Town, nominating a candidate who qualifies for membership on the BZA either as a regular member of or as an alternate. Said resolution shall be transmitted to the Circuit Court of Pulaski County for the Court's consideration regarding appointment of the nominee to the board as a regular member or alternate. 1 Code of Virginia 1950, as amended, §15.2-2308(A). 2 Code of Virginia 1950, as amended, §15.2-2308(A). 3 Code of Virginia 1950, as amended, §15.2-2308(A). 705.1-5. Qualifications and Seating of Alternate Members for Hearings. The qualifications, terms and compensation of alternate members shall be the same as regular members. If a regular member knows they will be absent from a meeting or have to abstain from any application at a meeting, they must notify the chairman twenty-four hours (24) prior to the meeting. The chairman shall then select an alternate to serve in the absent or abstaining members place note of which shall be recorded in the records of the board. An alternate member may vote on any application in which a regular member abstains.4 705.1-6. Compensation Authorized. Members of the board may receive such compensation as may be authorized by the Town Council. 5 705.1-7. Conflicts of Interest. All Board members and alternates shall be subject to the Virginia Conflict of Interest Act and shall not act upon a matter in which they have a financial interest or where action would financially benefit them as specified in the laws of the Commonwealth. 705.1-8. Removal from Office. Any board member or alternate may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the court that appointed him, following a hearing held after at least fifteen (15) days' notice.6 705.2 Operation of the BZA: Rules of Procedure; Contracting for Services; Records of the Board; Election of Officers; Actions by Presiding Officer; Quorum for Hearings; Notice and Hearing. 705.2-1. Rules of Procedure and Records. The board may make, alter and rescind rules and forms for its procedures consistent with ordinances of the locality and general laws of the Commonwealth. The board shall keep a full public record of its proceedings and shall submit a report of its activities to the governing body or bodies at least once a year.' 705.2-2. Employment or Contracting for Services. Within the limits of funds appropriated by the Council, the board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.8 4 Code of Virginia 1950, as amended, §15.2-2308(A). 5 Code of Virginia 1950, as amended§15.2-2308 (C). 6 Code of Virginia 1950, as amended, §15.2-2308(D). 7 Code of Virginia 1950, as amended, §15.2-2308(C) and§15.2-2312. 8 Code of Virginia 1950, as amended§15.2-2308 (D). 705.2-3. Election of Officers. With the exception of the secretary and the alternates, the board shall elect from its own membership a Chairman and Vice-Chairman who will serve annual terms and may succeed themselves. A Secretary shall also be elected who may or may not be a member of the board.A secretary who is not a member of the board may not vote on any matter before the board.9 705.2-4. Discretionary Powers of the Presiding Officer. The Chairman, or in his absence the Vice-Chairman or acting Chairman, may administer oaths and compel the attendance of witnesses.10 705.2-5. Quorum for Hearings. Notwithstanding any other provisions of law, general or special for the conduct of any hearing, a quorum shall not be less than a majority of all the members of the board and the board shall offer an equal amount of time in a hearing on a case to the applicant, appellant, or other person aggrieved under§15.2-2314 and the staff of the local governing body. Except for matters governed by §15.2-2312, no action of the board shall be valid unless authorized by a majority vote of those present and voting.11 705.2-6. Notice and Hearing Required. The board may not take action on a matter or consider a variance until notice and hearing have been given as mandated by §15.2-2204 of the Code of Virginia. 705.3 Ex Parte Communications: Notification of Communications; Availability of Case Materials; Non-legal Staff Defined; Exemptions. 705.3-1. Ex Parte Communications. The non-legal staff of the governing body 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 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. 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) 9 Code of Virginia 1950, as amended, §15.2-2308(C). 10 Code of Virginia 1950, as amended, §15.2-2309(8). 11 Code of Virginia 1950, as amended, §15.2-2308(C). discussions prior to a public meeting to which staff of the governing body, the applicant, landowner or his agent or attorney are all invited. 12 705.3-2. Availability of Case Materials. 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. 13 705.3-3. Non-legal Staff Defined. For the purposes of this section, "non-legal staff of the governing body" means any staff who is not in the office of the attorney for the locality, or for the board, or who is appointed by special law or pursuant to § 15.2- 1542. 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.14 705.3-4. Exemption. This section shall not apply to cases where an application for a special exception has been filed pursuant to subdivision 6 of§ 15.2-2309.15 Section 706 Powers and Duties of the Board of Zoning Appeals 706.1 Appeal from Administrative Ruling. The board has the authority 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 determination of the administrative officer shall be presumed to be correct. 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. The board shall consider any applicable ordinances, laws, and regulations in making its decision. For 12 Code of Virginia 1950, as amended, §15.2-2308.1 (A). 13 Code of Virginia 1950, as amended, §15.2-2308.1 (B). 14 Code of Virginia 1950, as amended, §15.2-2308.1 (C). 15 Code of Virginia 1950, as amended, §15.2-2308.1 (D). purposes of this section, determination means any order, requirement, decision or determination made by an administrative officer. Any appeal of a determination to the board shall be in compliance with this section, notwithstanding any other provision of law, general or special.16 706.2 Granting.of Variances: Authorization to Grant Variances; Standards for Consideration; Notice and Hearing; Imposition of Conditions/Bonding 706.2-1. Authorization to Consider Variance. The board is authorized, notwithstanding any other provision of law, general or special, togrant upon appeal or original application in specific cases a variance as defined in § 15.2-2201, provided that the burden of proof shall be on the applicant for a variance to prove by a preponderance of the evidence that his application meets thestandardfor a variance as defined in § 15.2-2201 and the criteria set out in this section.17 706.2-2. Standards for Considering a Variance. Notwithstanding any other provision of law, general or special, 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 isnot 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 that is authorized in the ordinance pursuant to subdivision 6 of§15.2-2309 or the process for modification of a zoning ordinance pursuant to subdivision A 4 of§ 15.2- 2286 at the time of the filing of the variance application.'$ 706.2-3. Notice and Hearing Required. No variance shall be considered except after notice and hearing as required 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 16 Code of Virginia 1950, as amended, §15.2-2309 (1). 17 Code of Virginia 1950, as amended, §15.2-2309 (2). 18 Code of Virginia 1950, as amended, §15.2-2309 (2). may give such notice by first-class mail rather than by registered or certified mail.19 706.2-4. Imposition of Conditions/Bonding. In granting_a variance, the board may impose such conditions regarding the location, character, andother 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 provisionof law, general or special,, the property upon which a property owner has beengranted 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.20 706.3 Interpretation of District.Map: Authorization; Guidelines for Interpretation; Notice and Hearing. 706.3-1. Authorization to Interpret Maps The board is authorized to hear and decide applications for interpretation of the district map where there is any uncertainty as to the location of a district boundary. 706.3-2. Guidelines for Interpretation; Notice and Hearing. 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.21 19 Code of Virginia 1950, as amended, §15.2-2309 (2). 20 Code of Virginia 1950, as amended, §15.2-2309(2). 21 Code of Virginia 1950, as amended, §15.2-2309(3). 706.4 Authorization to Consider Special Exception Use Permits for Structure Placement: Authorization; Application of Conditions; Required Findings; Standards for Determining Health and Safety. 706.4-1. Authority to Consider Special Exception Use Permits. The Board of Zoning Appeals is authorized to hear and decide .on requests for special exception use permits (also referred to as "use permits") that allow modification of placement requirements for structures in all zoning districts of the Town. 706.4-2. Application of Conditions. The Board of Zoning Appeals may impose conditions on the use permit that it deems necessary in the public interest, including limiting the duration of the use permit. 706.4-3. Required Findings. The Board of Zoning Appeal shall not approve a use permit unless it finds: a. That the proposal will not affect adversely the health or safety of persons residing in the neighborhood; and, b. That the proposal will not be detrimental to the public welfare or injurious to property or improvements in the neighborhood; and, c. That the proposal will not be in conflict with the purposes of the master plans and land use and zoning related policies of the Town. 706.4-4. Standards for Determining Effects on Neighborhood Health and Safety. In determining whether the proposal will adversely affect the health and safety of persons residing in the neighborhood or will be detrimental to the public welfare, injurious to property or improvements in the neighborhood, the BZA shall consider: (1) Whether the modification will promote compatibility of development with the surrounding neighborhood, because the structure's overall footprint size and placement are similar to structures or property surrounding the lot in question; and, (2) Whether the modification will help preserve natural land form, historical features, and/or significant trees and foliage.22 706.5 Appeals from Decisions of the Zoning Administrator. The board is authorized to hear and decide appeals from the decision of the zoning administrator 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, 22 Ordinance 2011-11. the board may give such notice by first-class mail rather than by registered or certified mail.23 706.6 Restrictions Regarding Rezoning and Legislative Intent. No provision of this ordinance shall be construed as granting any board of zoning appeals thepower to rezone property or to base board decisions on the merits of the purpose and intent of local ordinances duly adopted by the governing body:24 706.7 Hearing and Decisions Regarding Special Exceptions: Authorization; Notice and Hearing. 706.7-1. Authorization. The board is approved 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. 706.7-2. Notice and Hearing. 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 theproperty affected, the board may give such notice by first-class mail rather than by registered or certified mail.25 706.8 Revocation of Special Exceptions: Revocation Authority of BZA ; Notice and Hearing; Revocation Authority of Town Council. 706.8-1. Authority to Revoke Special Exception by the BZA. The board has the authority 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. 706.8-2. Notice and Hearing. 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. 23 Code of Virginia. 1950, as amended, §15.2-2309 (3). 24 Code of Virginia 1950, as amended, §15.2-2309 (5). 25 Code of Virginia 1950, as amended, §15.2-2309 (6). a 706.8-3. Revocation by Town Council. If Town Council reserves unto itself the right to issue special exceptions pursuant to § 15.2-2286, and, if the Council 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.26 706.9 Scheduling of Meetings. 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. 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.27 Section 707 Application and Procedures for Board Hearings 707.1 Hearings Regarding Special Exceptions and Variances: Eligible Applicants; Transmission of Application Documents; Notice; Time Limit on Request/Resubmission; Withdrawal of Application; Allotment of Fees 707.1-1. Eligible Applicants. Applications for special exceptions and variances may be made by any property owner, tenant, government official, department, board or bureau.28 707.1-2. Application and Transmission of Documents. Applications shall be made to the zoning administrator in accordance with rules adopted by the board. The application shall be accompanied by one (1) copy of documentation containing reasonable information as shall be required by the Zoning Administrator. 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.29 707.1-3. Notice and Hearing. No special exceptions may be granted or variances shall be considered except after notice and hearing as required by § 15.2-2204. The zoning administrator shall also transmit a copy of the application to the local 26 Code of Virginia 1950, as amended, §15.2-2309 (7). 27 Code of Virginia 1950, as amended, §15.2-2309(8). 28 Code of Virginia 1950, as amended, §15.2-2310. 29 Code of Virginia 1950, as amended, §15.2-2310. planning commission which may send a recommendation to the board or appear as a party at the hearing.3o 707.1-4. Time Limit on Resubmission of Request. Any locality may provide by ordinance that substantially the same application will not be considered by the board within a specified period, not exceeding one year.31 707.1-5. Withdrawal of Application. Any petitions for a hearing before the Board may be withdrawn prior to action thereon, by said Board at the discretion of the person, firm or corporation initiating such request upon written notice to the Secretary of said Board. 707.1-6. Payment and Fees. Applications to the Board shall be accompanied by payment of a fee set forth in Section 801 to help defray the cost of publicizing and conducting the public hearing. Upon withdrawal of an application, the fee required will be refunded provided no expenditures have been made for publicizing or conducting the public hearing at the time the notice is received. If the withdrawal is done after publicizing costs have been incurred, the applicant is responsible for payment of these costs. 707.2 Hearings Regarding Administrative Decisions: Eligible Appellants; Notice of Appeal Process and Deadline for Filing; Length of Time to Appeal Ruling; Filing and Transmission of Appeal to Board; Notice and Hearing; Stay of Action During Appeal; General Appeal Procedure; Withdrawal of Appeal; Payment of Fees. 707.2-1. Eligible Appellants. An appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the locality 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 this article, any ordinance adopted pursuant to this article, or any modification of zoning requirements pursuant to Code of Virginia § 15.2-2286.32 707.2-2. Violation/Order to Include Notification of Right to Appeal. 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 section, and that the decision shall 3° Code of Virginia 1950, as amended, §15.2-2309 (6) and(2)and §15.2-2310. 31 Code of Virginia 1950, as amended, §15.2-2310. 32 Code of Virginia 1950, as amended, §15.2-2311 (A). M be final and unappealable if not appealed within 30 days. The zoning violation or written order shall include the applicable appeal fee and a reference to where additional information may be obtained regarding the filing of an appeal. The appeal period shall not commence until the statement 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 section.33 707.2-3. Filing and Transmission of Appeal Documents to the Board. The 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.34 707.2-4. Application of Decision to Appellant as Regards Notice and Hearing. 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.35 707.2-5. Stay of Action/Order During Appeals Process; Exceptions. 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.36 707.2-6. General Procedure of the 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 33 Code of Virginia 1950, as amended, §15.2-2311 (A) 34 Code of Virginia, 1950, as amended, §15.2-2311 (A). 36 Code of Virginia, 1950, as amended, §15.2-2311 (A). 36 Code of Virginia, 1950, as amended, §15.2-2311 (A). interest and make its decision within ninety 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 the ordinance or to effect any variance from the ordinance. 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. 707.2-7. Sixty Day Limit on Administrative Changes to Order; Exemptions. 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 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 60-day limitation period shall not apply in any case where, with the concurrence of the attorney for the governing body, modification is required to correct clerical errors. 707.2-8. Tie Votes. 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. 707.2-9 Withdrawal of Appeal. Any application for appeal before the Board may be withdrawn without prejudice, prior to action thereon by said Board, at the discretion of the person, firm, or corporation initiating such a request upon written notice to the Secretary of said Board. 707.2-10. Fees. Each application for an appeal shall be accompanied by payment of a fee as set forth in Article 800 to help defray the cost of publicizing and conducting the public hearing. Upon withdrawal of an application, the fee required will be refunded minus any expenditures which have been made for publicizing or conducting the public hearing at the time the notice is received. The fee for filing an appeal shall not exceed the cost of advertising the appeal for public hearing and reasonable costs.37 Section 708 Certiorari to Review Decisions of the Board 708.1 Aggrieved Parties; Form of Writ. 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 that shall be styled "In Re: date Decision of the Board of Zoning Appeals of[locality name]" specifying the grounds on which aggrieved within 30 days after the final decision of the board.38 708.2 Issuance of writ; Notification of the Board of Filing of an Appeal. 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 upon the secretary of the board of zoning appeals or, if no secretary exists, the chair of the board of zoning appeals, which shall not be less than 10 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.39 708.3 Status of the Board in Appeal Proceedings. Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required by this section. The governing body, the landowner, and the applicant before the board of zoning appeals shall be necessary parties to the proceedings in the circuit court. The court may permit intervention by any other person or persons jointly or severally aggrieved by any decision of the board of zoning appeals.43 708.4 Possession of Original Papers; Certification of Documents. The board of zoning appeals 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.41 37 Code of Virginia 1950, as amended, §15.2-2311 (A). 38 Code of Virginia 1950, as amended, §15.2-2314. 38 Code of Virginia 1950, as amended, §15.2-2314. 48 Code of Virginia 1950, as amended, §15.2-2314. 41 Code of Virginia 1950, as amended, §15.2-2314. V O 708.5 Authorized Court Actions on the Appeal. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. 708.6 Presumptions of Correctness, Burden of Proof for Appeals of Decisions of Administrative Officials. In the case of an appeal from the board of zoning appeals 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 § 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 of zoning appeals that the board of zoning appeals 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.42 708.7 Presumptions of Correctness, Burden of Proof for Appeals Involving Variances. In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted an application for a variance, the decision of the board of zoning appeals shall be presumed to be correct. The petitioner may rebut that presumption by proving by a preponderance of the evidence, including the record before the board of zoning appeals that the board of zoning appeals erred in its decision.43 708.8 Presumptions of Correctness, Burden of Proof for Appeals Involving Special Exceptions. In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted application for a special exception, the decision of the board of zoning - appeals shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that the board of zoning appeals applied erroneous principles of law, or where the discretion of the board of zoning appeals is involved, the decision of the board of zoning appeals was plainly wrong, was in violation of the purpose and intent of the zoning ordinance, and is not fairly debatable.44 708.9 Introduction of Evidence in Appeal from the Board. In the case of an appeal from the board of zoning appeals to the circuit court of a decision of the board, any party may introduce evidence in the proceedings in the court in accordance with the Rules of Evidence of the Supreme Court of Virginia.45 42 Code of Virginia 1950, as amended, §15.2-2314. 43 Code of Virginia 1950, as amended, §15.2-2314. as Code of Virginia 1950, as amended, §15.2-2314. 45 Code of Virginia 1950, as amended, §15.2-2314. r 708.10 Allotment of Appeal Costs. Costs shall not be allowed against the locality, unless it shall appear to the court that it acted in bad faith or with malice. 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 locality may request that the court hear the matter on the question of whether the appeal was frivolous.46 46 Code of Virginia 1950, as amended, §15.2-2314.