the board of zoning appeals meeting for Wednesday February 23rd 2020 I mean sorry March 20th 2024 is coming to order we are going to do a roll call this is an organizational meeting and that is why I am kicking things off Mr. Bruce Delafia. Present. Mr. John Longest. Present. Ms. Patricia Temple. From. Mr. Michael Ganon. Present. Ms. Penelope Boyd. Present. At this time, Mr. Doug Goodman is going to come up and issue the oath of office for all of you. Good evening board members. thank you for your volunteerism and your service to our town. As part of your service here as we're in the organizational meeting, I would ask each of you to stand and raise your right hand in just a moment. You have your oath of office in front of you. I'm gonna recite it for you to recite it back to me. And then when we finish, I'd like for you to sign them, and then I will collect them, and I will submit them to the Circuit Court for Recordation. Please rise. Raise your right hand. Aye. State your name. Aye. John Longfield. No, I'm not even going to. Do solemnly swear. Do solemnly swear. That I will support the Constitution of the United States and the Constitution of the Commonwealth of Virginia and that I will faithfully and impartially disregard all the duties all the duties incumbent upon me incumbent upon me as a member member of the town of Ashland board of zoning appeals the town of Ashland board of zoning appeals the national board of zoning appeals according to the best of my abilities according to the best of my abilities so help me God so help me God thank if you can sign those documents and then I will collect them please thank you Mr. Goodman. At this point in time, we would like to formally introduce the staff and those that are in attendance. We'll begin with Ms. Amos. This is Ms. Nora Amos and then we have Mr. Clayton Keller. He is our development, community development specialist. We also have our town attorney here present as you met Mr. Andrew McRoberts. And then Jessica Board of Jessica. Thank you Our council liaison will be Miss Pam Soapall for the Board of Zoning Appeals and I am Bernadette Cornelius. I am your clerk At this point in time with full attendance of the BZA members. We do have a quorum and I would like to begin with the election of chair as our next item. I'm going to open the floor for nominations. Nominations does not require a second. Mr. Ganon. I would nominate Mr. Longest. Are there any other nominations? At this point in time I will close the nominations with no one else running for chair by acclimation and a round of applause. I would like for all of us to welcome Mr. J. DeLongus as our chair for the Board of Zoning of Appeals for 2024. Welcome. The next order is to elect a vice chair and I would like to open up the nominations for vice chair at this time. I'd nominate Mike Gannon. I'd nominate Mike Ganon. Are there any other nominations? Okay, Mr. Michael Ganon's been nominated by Mr. Longus. With no one else for running, I would like for us to welcome him by acclamation to the vice chair position for the board of Zoning Appeals for 2024. And with that election being over, I would like to turn the meeting over to Mr. J. D. Longest. Thank you. Next up on the agenda is the approval of the agenda. Oh, please make sure your microphone green light is on and that you're speaking close to it so that those at home can hear. Okay. Next on the agenda is the approval of the agenda. I'd like to request a motion for approval of the agenda. Is it presented or if there are any changes to be requested? Does anybody want to make a motion? I'll move to approve the agenda. Mr. Ganon motioned and Ms. Temple did a second. With that I'll do a roll call vote. Mr. Bruce Duffier. Aye. Mr. Longest. Aye. Ms. Temple. Mr. Ganon. Aye. Mr. Longest. Aye. Ms. Temple. Mr. Ganon. Aye. Ms. Boyd. Aye. Thank you. The motion passes. The agenda is set. Just not bring it up. All right. Next up, public hearings? No. We have none. Okay, good. Any and all matters. Approval of the February 23, 2022 minutes. Please note the corrected version is being presented by Ms. Cornelius to include the omitted motion from item six of the approval of agenda. Does anybody want to make a motion for the approval of the corrected minutes for February 23, 2022. What was the item that was changed? Number six, there should be a single sheet in front of you with some red ink under number six, because I noticed that section had been omitted from those that were distributed to the public and to you. Thank you. I would move to approve the agenda as presented as amended. Or for the minutes, I'm sorry, not the agenda for the minutes. I'm sorry, not the agenda for the minutes. The minutes from February 20, 20 minutes. The February 23rd meeting. All right. Do you have second? I'll second. Thank you. Mr. Gannon motion. Mr. Delphier seconded. Roll call vote. Miss Boyd. I. Thank you. I was reading this. Seconded roll call vote Miss Boyd Thank you reading this Mr. Ganon hi Miss temple hi mr. Delphia hi mr. J. DeLongus hi motion carries. Thank you All right board of the Zooming Appeals overview. Town attorney. I guess we're up. Good evening, everyone. So how many of y'all have been on a BZA before? All right, so we have several veterans. That's great. I assume the Ashland BZA? Okay. great. Well then a lot of this will be very familiar for those of you all who have not served on a BGA before. It may be a little different in some respects. The okay. Well, he was working a moment ago. Oh, what's it? Yeah. Technical difficulties again. Paul, yeah. Yeah. Hmm. That's a good sound. Bad outcome. Yeah. I'm sorry. Well, boring. I just going to have to. I don't think this is working either. Yeah. It's not. It's not working either. It's not working either. It's not working either. It's not working either. It's not working either. It's not working either. think this is working either. It's now a fundamental problem. Well, I'll tell you what, let me start talking and then we'll get the issues resolved. And we're okay. Okay. As soon as I start talking and we'll get the issues resolved. And, and we're okay. Okay. As soon as I start it's all clear. Okay. The VCA is a public body under the Virginia statutes. It has the powers and duties that are set forth by statute. You are not a legislative body. You don't get to make the law. What you do is you get to act quasi-judicially. So if you imagine yourself as kind of like a judge, an applicant superior before you and they're requesting a variance or they're asking to overturn decisions of the zoning administrator, and they have a burden of proof to establish their case just like a litigant in a court does and then you get to decide those cases if they have met the standard in the burden grant them what they want and if they have it you should deny it just like court. But because you're a public body, you're governed by the Dylan rule. The Dylan rule is just a rule of application in which public bodies are required to do the things they're authorized to do and they're not permitted to do the things they're not permitted to do. With the BZA, you are a statutory entity. You're created by state law and then appointed by the Circuit Judge. As a result, you only have the powers that are specifically given to you by statute. And we'll be going through your enabling statutes right here. What are your powers and duties? One, to hear and decide appeals from an order requirement decision or determination made by an administrative officer in the administration or enforcement of this article or of any ordinance adopted pursuant there too. That's specifically limiting your power to deciding zoning issues, not subdivision issues, not constitutional issues, not the wisdom of legislation issues, not all the issues of the day, just zoning issues. And only when there has been an order requirement decision determination of the zoning administrator that has then appealed to you in a proper and timely manner. The decision is based on whether they're correct. So in this case, not only are you acting quasi-judicially, you're putting your zoning administrator hat. Literally, are they correct or they not? Is that something that is consistent with the zoning ordinance? Or is it inconsistent with the zoning ordinance? Or is it inconsistent with the zoning ordinance? At the hearing, the zoning administrator explains the basis for the determination, and then the applicant has the burden to rebut that with evidence to show that it is simply not correct. Quite often, there's really not evidence needed, and they're talking about interpreting a provision of the zoning ordinance. Sometimes there is evidence needed, like for example, needed and they're talking about interpreting a provision of the zoning orders. Sometimes there is evidence needed like for example whether there's a vested right for example. Then you consider the law and make a decision and you have to act in a way that's consistent with the law. The second thing that you get to do, and you authorize to do, is to grant appeals or upon original applications in cases of a variance. In this case, it would be an application for a variance. It will talk a lot about the standard for a variance later, but that is the second thing that you get to do. And of course, hearing and deciding appeals from a decision of a zoning administrator, we talked about that. And then the last thing you really get to do is deciding and hearing applications for determination of the zoning boundary. That probably was the thing back in the early, part of the 1900s, when the B BZAs literally had to bring out maps and walk to streets and figure out where that zoning line was nowadays with GIS and modern mapping determining the zoning line is less of an issue. But as it says in number five, you don't get to rezone property, you don't get to base board decisions on the merits of the ordinance. I remember when I was a very young county attorney, I showed up at my very first BZA meeting ever, and the applicant wanted a variance for a very large sort of interstate like billboard sign on their property. And they argued, everybody up and down that street has a sign just like it. And I remember the discussion by the BZA. Well, that would be fair for them to get a variance. They ought to get the same sign everyone else gets. You don't get to do that. You don't get the way the weather is a good idea or frankly even what is necessarily fair. Your job is to apply the law to the application in front of you and yes to determine the variant standard or the appellate standard before you. Special exceptions you do not have authority to hear special exception cases. That is a legislative decision that's preserved and reserved to the council. They make special exceptions, conditional use permit cases, et cetera. You can fix a schedule of meetings. I understand here locally you all sort of meet as needed. So there's probably not a schedule of meetings. Applications for variances in your case can be made by a whole series of people. They're made to the zoning administrator, et cetera. There are actually an appeal to the VGA for preventing matters regarding building permits. That's really doesn't come before VGA as much. I told you you guys are quasi-judicial. Yes, ma'am. Excuse me, because I can be very dense. The variance, if somebody wants a variance, it doesn't go to the zoning administrator first. It does not. It does not. It does not. It just goes to you. It's an application for variance. I don't believe that there is an ordinance provision for a zoning waiver or zoning exception by the zoning administrator. So they don't get to grant those things. And then you said for special exceptions, they're decided by town council. Yes, so you don't decide special exceptions, they're decided by town council. Yes, so you don't decide special exceptions. And that's six, that is a special exception too. Well, a special exception is just another name for a conditional use permit or a special use permit. Locality use different words. In some places like Stafford County, for example, there's an ordinance that specifically grants the BZA authority to be the legislative body to decide those things. You don't have that provision here in Ashland. You guys are quasi-deditional, I covered that. So you're basically weighing the evidence and the legal standard to make a decision as opposed to deciding what is the proper course of conduct or You know what should the law be what should the policy be applied to the situation those kinds of decisions council makes you are again acting as a judge more or less Your decisions are on factual determinations, are presumed correct. And so building a record in support of your quasi-judicial decision making is important. That's why it's important to put the applicant to their burden and certainly seek the assistance of staff to make sure that you have the information in front of you to decide whether that legal standard is met or not. And again, the applicant has the burden to prove it. Issues of law are decided, denovo, which just means for the first time on appeal. We're gonna throw a couple of the common types of cases. Again, appeals are very statutory. I think I've already covered a bunch of this stuff. If there is an appeal from the BZA to Circuit Court, it is appealed and they give you, they basically have a denove overview of your decision on appeal. There is a contrast between appeals which you're hearing and the circuit court is hearing from your decisions and a lawsuit and we'll talk more about that later. It's not really something that comes before you so much. Common types of zoning administrator appeals. This is really where the rubber meets the road and things that you're likely to see in appeals from zoning administrator decisions. Sometimes an applicant will ask for a formal interpretation of the county zoning ordinance. There is no perfect ordinance. And so from time to time an applicant will say, you know, it says this, it could be read a couple of different ways. I wanna know before I spend my many tens of thousands of dollars, what does it mean? Does it mean what I think it means that would mean my project would go forward in the way we plan? Or is it mean something else? And then these only administrator issues a written determination to say it means this and not that. And then the applicant can move forward. If they don't like what the zoning administrator says, then that's when you get involved. So let's just say that hypothetical applicant I just mentioned says it could mean this, which is what I think it means, or it could mean that, which means my application doesn't, my client's development does not go through. And the zoning minister says, I'm sorry, it means the thing that you don't like. Then they get an opportunity to appeal that decision to you. And then they can make an argument that, now it really does mean what I think it means and the zoning administrator is wrong. A second type of application from the zoning administrator is wrong. A second type of application from the zoning administrator on appeal is whether a specific use is permitted or not. Sometimes they can make an argument and to say it's permitted, it's not really clear, the zoning administrator has to make a decision on whether it's allowed or not. Sometimes there's issues with setbacks. A lot coverage, height, other kinds of bulk requirements, and as applied in a specific case, they want to have the zoning administrator weigh in on that, and they may or may not like that. And so you might see that from time to time. Sometimes an applicant will go to the zoning administrator and say, I know that I'm not allowed under the zoning administrator and say, I know that I'm not allowed under the zoning ordinance, but I believe I'm non-conforming. And under the non-conforming laws, if they are a use that was lawful at the beginning and before the ordinance was adopted to ban it, they could be considered non-conforming. And so then they would go to the zoning administrator and say, zoning administrator, I believe I'm non-conforming. The zoning administrator, if they say no, then the applicant could say, well, let me go talk to the BZA. Let me go determine whether I am a non-conforming or not. The last type of common thing that comes from zoning administrators that you may see is vested rights. There is statutory provision for a zoning administrator to make a decision on vested rights. There is statutory provision for a zoning administrator to make a decision on vested rights with the concurrence of the town attorney, and that's me and Sans Anderson. So if there is a vested rights determination that says yes, you have vested rights, then you probably won't see it. What you'll probably see it is in a context where somebody says, I think I've got a vested rights and the zoning administrator and the town attorney saying, no, you don't. You don't have vested rights. And then they may appeal it to you and they make an argument. I will warn you in advance that vested rights are some of the most complicated and probably highest stakes cases you will see. The reason that is is with vested rights. Often there has already been an investment by the landowner. They have at least one significant affirmative governmental approval that they like to point to and say, see, I've gotten this approval and I've relied on it and I've spent substantial sums. And basically I've got a lot invested. Please basically save my development from this change in the law and that's what invested right cases really about. So I'm just warning you in advance that that is probably going to be coming down the road. Who gets to appeal? Any person aggrieved, which is essentially a standing requirement. They have to have basically a stake in the proceeding and they have to not like what the zoning administrator just did. They've got an appeal pending before you. I guarantee they're aggrieved. Now are they aggrieved to the point that they've got standing? That's a whole nother matter. I had a case a few years ago on behalf of the Stafford B.C.A. And a couple of folks challenged the zoning administrators' decision about the existence of certain flags that they did not like by interstate 95. They were very large and offensive to many people. Unfortunately for the applicants involved, one lived in Spots of Aimea County, which was a long way away. The other lived and impossibly far away in Stafford County, about 45 minutes from where this flag was located. When the BZA chair brought the applicants, attorney before said, can you give me precisely why these people have a particular interest in this flag? I mean, how are they agreeved by this flag being there? Well, they drive by from time to time and they are personally offended for many possibly good reasons. Unfortunately, that's not standing. You have to have standing that is especially due to your ownership interest or your adjacency or your particular property interests. You can't just have the same type of interest as the general public. And so in that case, the BZA said, there is no standing, therefore you're not a person aggrieved by this flag being there. And so we will not take this case up. We have no jurisdiction because you don't have the ability to appeal to us. That's just a practical application of how that works. That's pretty rare. Typically people who come before you have an actual stake in what you're going to be asked to decide. In the case you just gave, could they then appeal the decision of the BCA? I mean that they did not in that particular case, but they could have. They could have because the BCA made a decision on standing, which was a legal jurisdictional question, and they could have appealed that to the circuit court and said that was legally wrong but they did not in that particular case. When there is a decision by the zoning administrator they need to get in order for it to be for the 30-day clock, there's a 30- day clock for them to appeal to the BZA That's another jurisdictional thing if they don't appeal in a timely fashion. It's not a proper appeal But for that 30-day clock to appeal to begin the Order requirement decision determination of the zoning administrator has to have the notice in it. The notice is statutory. The notice says specifically what that you know that the rights will you will no longer be able to appeal at the 30 days. Here's where you can appeal here at the town hall. Here's the fee for appealing. Here's where you can get more information. Those are the things that have to be in the written notice or else the 30-day clock does not start running in a written determination. It's you probably will not see this because staff will make sure it goes to the right people. But proper determinations are the one class of zoning administrator determinations that you do not hear. Those determinations go on appeal to the governing body. Presumably when conditional zoning and proffers were cooked up, the general assembly said, well the governing body accepted the proffers, maybe they know better than the BZA, what they really were meant to do. Moving on. We talked about a lot of this stuff just a moment ago. Standing, I think I already talked about that. Moving on. There's a couple of rules on staff BZA communications in the statute. Export-A communications, since you're acting judicially, export-A communications means outside of the proceeding, there are discussions going on. There are limitations on what can be discussed. Ironically, the town attorney can have whatever discussion he wants with you. I don't intend to, but if there's legal questions that need to be answered, I may or may not be able to give you that advice in advance. Staff needs to talk to you about procedure and how it's going to be handled and how the application is framed. The staff may very well give you a recommendation or a staff position on what's standing before you but they really should not be discussing the details of the law with you on that. Any materials that are furnished to the VCA have to be furnished to the other parties promptly within three days. That's just a rule that the staff will be handling. A couple of rules on owners, decisions by you are binding on the owner and their actual notice actually waves their right to challenge the validity of the failure to receive their notice of it. At the hearing, I told you initially the zoning administrator must give sort of an explanation. Here's why I decided what I decided. Here's what I think my determination means. Here's the ordinance provision that says it. The zoning administrators presume to be correct. The applicant then has to convince you by 50% of the evidence or more that they are correct in the zoning administrator's not. Ty goes to the zoning administrator. Let's just put it that way. Here's what you get to do at the end of the case. You get to reverse the zoning administrator and say the zoning administrator was wrong. The applicant is actually correct in what they're asserting. You can also affirm the zoning administrator, say the zoning administrator was correct, you can do that wholly or partly, or you can modify it. Again, you're acting judicially, you've got your zoning administrator hat on, and you actually get to say, you know what, I'm going to modify your decision, because you would be right if you'd only set it this way, or if you'd only applied it in this way. So you actually have quite a bit of authority as long as you are acting in your lane to make zoning determinations. There is a special rule in the statute about overturning a zoning administrator or granting a variance. And that is that a majority of the members of the BZA must vote to overturn the zoning administrator or to grant the variance. How that works in a five member BZA is yet to have three votes to do that. Let's just assume hypothetically one of you is not attending a BZA meeting. And there's only four folks here. You can certainly still have a BZA meeting. And there's only four folks here. You can certainly still have a BZA meeting. You could even have a BZA meeting with three people there. Because that's a quorum of the BZA. But you still need three votes to grant the relief. In my hypothetical example of three BZA members hearing a application from a zoning administrator decision, you have to have a unanimous decision of all three BZA members. Does that make sense? You can and perhaps should make factual findings and establish a record for your decision. That's helpful, especially if it's going to go up on appeal for the appellate court to understand what it is and why you did it. I say should because the statute doesn't say you must. Another statutory peculiarity is that if the vote is tied, say there are four of you here and it's a two to two vote, the applicant request that it be carried over until the fifth member comes. But you don't have to grant that. That's a discretionary deferral. So you may grant that, you don't have to grant that. The statute directs you to render your decision within 90 days from the filing of the application, but the Supreme Court has made it clear that that's not a jurisdictional limit. In other words, it's a really good thing to act properly, to have these things scheduled, and decide it within 90 days. But if particular reasons, like just say two of you have an extended vacation, or one of you is sick during that period of time, and you can't really have scheduled until day 96, that's fine. There's nothing wrong with that. Can you speak into the mic? I'm like, I'm in a relationship and we like more, I'm just gonna hear it over to you to get more facts. You can, I will say though that the way it works is the burden is on the applicant. It's not, again, like aboard supervisors or a council where you're weighing, what is the right course? It's the matter where the applicant comes in. There's a hearing just like before court. And either they've met their burden or they haven't. So if you say, gosh, I don't have enough information to grant it, then that means the applicant has not met their burden. But could you defer it? I suppose you could. But could you defer it? I suppose you could. I think you could probably do that. I think you could probably do that. I'm sorry, is there another question? No, I was going to answer. Would you check and see if your green light is on? It is. Okay. You just have to have it very close to your mouth. All right. The appeal of the BZA decision must have must be filed within 30 days That's something happens after you act. I did have a question about the one you yeah, I think you said for the first bullet that The applicant can request something be carried over but that's a decision made by BZA The BZA makes that decision made for each case or is it a general rule that we decide on? That's in the statute, so it's controlling. So if there are four of you and the decision is tied at that point, the applicant can make a request, does not have to make a request that it be carried over because just like under really Roberts rules and really any other set of procedural rules a tie-vote fails so a two-to-two vote is literally no action whatsoever so they can request that it be carried over and you can in fact defer it at that point but you don't have to because you need three votes again for the applicant to prevail. So at each hearing of BGA, they decide that. They make that decision not for all meetings, but just for each individual one. Each individual matter, the applicant would have to make that request and then it would be up to the BGA to grant that or not. This is really handled by staff about fixing a reasonable time for the hearing, giving due notice, et cetera. Again, the concurring voter majority of the membership is required. Here's just some tips over the years that I've seen that help. Make sure the applicant has a clear statement on standing in jurisdiction. Make sure that they are properly before you have a timely filed and appeal, things like that. Often staff will clear these things out from y'all and you may not deal with those. Sometimes they may not and it may be something you need to deal with. Stay in your lane. Often an applicant may stand before you and ask you to do all of those things I said earlier you can't do. Way into the reasonableness of what council has done. Decide constitutional issues or other kinds of legal issues. That's not your job. They may come in and say, you know what? I want to talk to you all about the subdivision ordinance, how it affects my land. You know, I'm, here's what the ordinance says, and the zoning administrator is wrong to tell me my subdivision is not allowed or whatever. I'm sorry, that's a subdivision issue. You don't get to make those decisions. Subdivision issues go to the court, not to the BGA. And so just make sure you stay in your lane and if you get an invitation from an applicant to get out of your lane, just be aware that you may need to stand up and say, I'm sorry, that's outside of the goal and the role of the BCA. Our job is to determine what the zoning ordinance says as applied to what your application is asking for. Sometimes staff will submit a staff report, particularly on something that's complicated, explaining it. A second kind of that's really zoning administrative appeals. The second type of most common case is the variance. Under the statute of variance is defined by the law as a quote, reasonable deviation, unquote, from the provisions of a locality zoning ordinance covering the shape, size, area of a lot of parcel, or the size height, area, bulk, location of a building of structure. Okay, let's just stop right there. You see what's not in there. You don't get a variance for use. You don't get a variance to alter the terms of the zoning ordinance, how it's written, as far as use, the types of things you get to do, or the districts in which you get to do them. It is you're talking about bulk regulations, height, setbacks, area, frontage, things like that. And so if someone's asking for one of those, that's appropriately before you. If they start asking for things that the governing body could just simply grant a special exception or a special use permit for, it's outside your lane. It's not your job. If they are saying, I want you to allow me to do this particular use. Unless it is an interpretation of the zoning ordinance, again, over in the last type. But if they are for you on a variance, they need to stick to bulk requirements and those types of things. The variance is granted when the ordinances provisions governing the shape, the location of the lot and the improvements would and they will discuss this a lot unreasonably restrict the utilization of the property. The need for the variance cannot be shared generally by other properties. So it's not your job to fix a problem in the council's zoning ordinance. I've seen BZAs feel like they need to. You know, if the zoning ordinance was written a slightly different way, then we wouldn't have this issue. But let's go ahead and grant variances to these people because they need to have this fixed. Well, no. Norah and her staff need to work with the Council and the Planning Commission and fix it. That's their job. Your job is to determine whether the basis for a variance is met or not. But the need for the variance cannot be shared generally by a bunch of folks. And the variance has to be not contrary to the purpose of the zoning ordinance. The code says the BCA shall grant a variance if it meets the application. Some years ago there was a lot more discretion in a BCA. Now it says shall if it meets the definition. Let's talk about exactly what the statute says because right now I think that's probably the standard that is going to be before you. This Valerie Holdings case that I'm going to be talking about. It was just decided the other day, literally, at the end of February, February 27. And it is the first case to be decided by a pellet court in Virginia since 2015. The Supreme Court of Virginia has yet to decide a case on the variance standard. The Court of Appeals now has. I will tell you upfront, I have fundamental issues with this opinion. I don't think it's right in lots of ways and for lots of reasons. But I will tell you what it says. But let's start with what the statute says. Because I think that that is the key. A variant shall be granted by the BZA, if either the strict application of the terms and ordinance would unreasonably restrict the utilization of the applicant's property. Or the granting of the variance would alleviate a hardship due to a physical condition relating to property or improvements there on at the time of the effective date of the ordinance. That's the two kinds of case. One is basically a hardship and the case law is not friendly to applicants on hardships. I will just tell you that it has to almost approach unbuildability, frankly, in order to be a hardship. The other provision is what Valerie Holdings is interpreting, and it's a little more flexible. But the key term there is unreasonably restrict the utilization of the property. The applicant also has to meet five other things that they must apply. And again, thinking back to your acting quazajjudicially and wearing the sort of the robe of the judge, you have to find evidence to support one of those two things. Or, and sorry, and the applicant must also satisfy five things. 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. Second, the granting of the variance will not be a substantial detriment to the adjacent property or nearby properties. Third, the condition or situation of the property concerned is not so general or recurring in nature as to make reasonably practicable the formation of a general regulation to be adopted as an amendment to the zoning ordinance. So again, going back to my statement earlier that if there's a problem in the zoning ordinance that can be fixed by an amendment, it needs to be fixed. And fourth, the granting of the variance does not result in a use that is not otherwise permitted on the property or a change in the zoning classification of the property. And fifth, the relief or remedy sought by the variance application is not available through a special exception process or the process for modification of the zoning ordinance. That's really what the statute says. Here's what Valerie Holdings said. The procedural posture in this case, well, I'll tell you what the facts are. The facts are it was basically a lake house in Luisa on one of those lakes that Dominion energy created back in the 60s for their nuclear power plant, Kool-Aid. They're also great for vacation homes. And this is apparently one that was in dire straits. The prior owner had, I think, done some gutting of it. There were some issues with access to the second floor. There were kitchen issues. It was in pretty bad shape. That person apparently sold it to Valerie Holdings of Virginia LLC. Valerie Holdings came in and said, well, now that I bought this, I need to have these stairs to the second floor. I want to put them basically in the setback. You want to put them in? That's why it worked. They wanted to put the stairs to the second floor in the setback. And went ahead and did it without getting a building permit. And so these stairs now are built to the second floor in the setback. They get busted by Louise Accounting and they say, you know, you were bad, you were in a setback, you were violating the zoning. They said, well, I'm going to come into the VGA and I'm going to ask for a variance. And they said, that setback is an unreasonable restriction on the utilization of my property. The BZA appropriately, I think, turned down the variance and said, no, you don't get just buy cheap property that's got issues in the setback and then come in and have me fix it with a variance. It was appealed to the circuit court. The circuit court, we're not entirely sure, overturned the BZA. And basically said that no, they should have granted the variance. That was appeals to the court of appeals. The court of appeals then had to decide what happens when the BZA, which is presumed correct on appeals to the circuit court, has made a decision to deny variance, but then the circuit court then reverses and says, nope, they get the variance. Where's the presumption? Is there a presumption of the circuit court? Is there a presumption of the BGA? The court of appeals decided that there would be a presumption in favor of the circuit court and not the BZA. I personally don't agree with that. I think it should be the same presumption throughout the appellate process. Just like the circuit court sits basically with a black robe, literally, to hear an appeal of the variance, decision of the BZA, and gives deference to the BZA, I think that the court of the veals should have set in the same basis and given the same deference to the BZA, I think that the court of the veals should have sat in the same basis and given the same deference. Instead, what they did was applied, what they often do in a trial court scenario and said, well, the circuit judge has made findings which are presumed correct unless they're plainly wrong, which is essentially the same standard that an appellate court gives a circuit court when they decide a jury verdict. And so basically it's like deferring to a jury, but that's what they said. They said we're going to give that. So that was one issue with the opinion. Then they said that they looked at this unreasonable restriction standard and I told you we'd be talking about that. What is an unreasonable restriction on the utilization of the real property? Many local government lawyers like myself figured that it was something akin to the fairly debatable rule, which is when a litigant decides they don't like a restriction or regulation or ordinance adopted by council, and they go to court and they say, I think this is an unreasonable regulation and you need to strike it down court. If there's any evidence whatsoever of the reasonableness of that regulation, it's upheld by the court. That's the legal standard called the Fairly Debatable Rule. That's not what the Court of Appeals did. What the Court of Appeals said is, let's look at the dictionary definition of reasonable. And because we are now deferring to the Circuit Court, and their findings control, unless they're plainly wrong, the Court of Appeals said we believe that since the Circuit Judges decision that it was unreasonable is not plainly wrong and has evidence to support it, it needs to be affirmed by the Court of Appeals. So again, it goes back to that legal standard, which I don't think was the right one, but they applied it. And in that case, they said that all there has to be is enough evidence to support the circuit judge's decision about unreasonable restriction. What does that mean to you? I don't think this case fundamentally changes what unreasonable restriction means. What it does do though, I think it loosens up the standard a little bit. It used to be that it had to border on near confiscation or a taking or unbuildability in order to grant a variance. I don't think that's the case anymore after the Valerie Holdings decision. The Valerie Holdings decision used a dictionary definition of unreasonable and applied it to the circumstances. So unfortunately that untathers the definition of reasonable from the fact that you're dealing with a legislatively adopted regulation from council. And so it let me say what it does and does not do. It does not mean that you get to now decide council regulations are unreasonable in general. You don't get to make decision to overturn council ordinances. But on an as applied basis, with a particular applicant, with a particularly story of unreasonable, they can meet the standard according to the court of appeals of what an unreasonable restriction is. In this particular case, they said he ought to have his variance to build his stairs. And so that's the law of the land, at least until somebody says it's not. Where does this leave the town or anybody else who has set back regulations? Does that mean they might not apply if somebody doesn't like it? I don't think that that's what this means. And I do think that every single case is, like I said, on a case by case as a plot. I think in this particular case, Louisa didn't do a very good job arguing at side of the case. And I don't think they put on sufficient evidence. It appears to me the applicant did a very good job. And sometimes when that happens in circuit court, the applicant who put on a very good case and the defendant did not, they went. And that's what happened. And then I think because the court of appeals used the plainly wrong standard on review of the circuit court, it basically said, there's some evidence in there to support the trial judge, trial judge wins, without independently determining reasonableness themselves, which I don't think is appropriate. But for you, the BZA, you are in the first instance sitting there with your quasi judicial hat on if you will Trying to determine has the applicant proven there's unreasonable restriction on their property again for height setbacks area regulations things like that Any questions on that it's it's still new to me too if that is not obvious I'm still trying to figure out exactly what it means. The new variance standard may very well result in increased applications for variances. I used to say for many, many years that if a VGA was doing its job, you should see no variance applications, or very, very rarely, because they really can't be given out, especially not freely. And so as a result, you shouldn't see a lot of variances if the BZS is doing his job. I'm not so sure now. I think this case is going to be a welcome sign to anybody that doesn't like setbacks, like you said, and they may very well say, well, let me try. I still think that they need to have a pretty bad tale of woe, and again, go to go back to the five things, plus the other two things, even if they meet the unreasonable restriction, they still have to meet those five things. And so, and some of those are pretty tough to do. Like, is there a general regulation that would fix their problem? Things like that. The other thing that the Valerie Holdings case decided was on self-caused hardships. The law of variances forever, and those of you that are veterans of the BZA know, you can't come in with a self-imposed hardship and say, give me a variance because of this thing that I did. I bought property with this fundamental problem. I caused this fundamental problem. They'll me out. That's a self-imposed hardship, and that's generally, no, I'm sorry, you don't get your variance. I feel bad for you, maybe, but you don't get your variance. In this particular case, the facts are kind of odd, that the guy bought it in a situation where the property already had fundamental problems and there had already been an illegal construction of a stairway and a setback, and he was asking for an after-the-fact variance to make that legal. The Court of Appeals said, well, it wasn't a self-imposed hardship here because it didn't happen while you owned it. You bought it after this guy had already built a staircase and had already built it illegally in the setback without a building permit. I personally think that absolutely meets the definition of self-in-toe starship. There was no gun to this guy's head to buy this property. It clearly had a stairway in a setback when he bought it and But that's the decision and so we're guided by that or we should be guided by that But you should know that the self-imposed hardship rule has been loosened a little bit here I Will say that as things come before you, if you get variance applications, there's nothing wrong with holding them to their evidentiary burden to make the evidentiary record clear as to exactly, you know, make sure that the record is clear on things like self-imposed hardship issues and exactly what the variance they're requesting is and why, when did that occur, things like that. If you have a clear record, then whatever your decision, then it's more likely to be upheld by a court because then they'll already be clear evidence in the record to support you. Don't rely upon the town putting on great evidence. I hope the town would have me show up and do a great job in front of the circuit. But you never know. It could be they choose not to ask Sansa Anderson to do that and it's being handled some other way. So you can't rely upon that. Don't rely upon somebody else defending your decision. You make sure the record supports what you say. And if you do that, then it's much more likely that there will be a successful defense on appeal of your decision. Because I think that's just reading between the lines. I think that there was probably less of a record than there should have been coming out of the BGA and Then on the at court the plaintiff slash applicant I think did a very good job making a compelling case of how unreasonably they'd be treated by all of this Okay, all right we're moving on Yes. I'll let you have that. Okay. All right. We're moving on. I've already gone through that. I've already gone through that. I will leave the rest of these for you to review. These materials are in your packet. I've already talked a little bit about non-conforming uses. They are different from grandfathering. You can read all of that yourself. I've already talked about vested rights being an important issue that's likely to come before you. There's some materials in here on 15.2, 23.07 vested rights, which is significant affirmative governmental approvals that are relied upon and achieve vested rights. I also have in here information about 15.2, 2311, C vested rights, which is vested rights in zoning determinations under certain narrow circumstances. And now I'm going to turn it over to Jessica Burtishewski, my colleague to talk about FOIA and COIA. I want to. Hi, good evening, you guys. I'm going to try to keep this brief because you have the information and Andrew has covered some of the most important things that are probably unique to you guys for the border zoning up hills. Now with FOIA and COIA, you know, these are going to be the part of meeting requirements that apply to all, you know, government bodies. And FOIA is, of course, the Virginia Freedom of Information Act. It's, we've given you a copy of the actual statutes in what you have. So you can review that in your leisure. Angela, is this working? It is working. Okay. Okay. So the purpose of FOIA is just ready access to public records and free entry to meetings of public bodies. All public records and meetings shall be presumed to be open unless an exemption is properly invoked. FOIA has numerous, numerous exemptions. But we like to have our bodies and everyone be prepared to know that you want to be always compliant operating with the presumption that you know what you say or what you do or written things that are submitted to you can be public record. What is the meaning? Andrew kind of went over you know what Quorum is up is it's five of you all so a meeting is going to include formal and informal meetings of public bodies, including work sessions. Post COVID, this is an important part of this. It says either physically or by electronic communication. There are a lot of different statutes now that have a difficult appliances and mandates for electronic communication and virtual attendance of meetings. and to the extent you guys are faced with any of those issues, you're going to make sure that you are referencing the appropriate statute and comply with those requirements for FOIA regarding the notice and the meeting requirements. And the meeting is going to be three members or a quorum if you know the public body has less than three members. And meetings are going to include formal informal sitting physically or electronic means. Like I said a lot of things are still Zoom teams and all those different electronic platforms and three or four members. And a committee of a public body in itself is a public body and thus for example two of three committee members of the government body or planning commission gather this is a meeting since two of the three is a quorum. Meary requirements for opening in person I just kind of touched on that you guys can refer to these statues if you have it like I said we've spelled it all out in an actual I gave you the whole Virginia FOIA and the whole Virginia FOIA just in case you need some riveting reading before bed this evening. And so I won't go through all of this line by line. Just know that the meetings shall be open to the public unless the meeting is subject to an exception that allows for a closed meeting and those exceptions are laid out in this statute. Folia and Koy are various statute driven. What you can do and what you can't do, the exceptions are all going to be laid out in this statute. And of course, if you have any questions, no, always notice how to find and join I and we can help you guys with that. Meeting requirements, notice and vote. So every public valley, shall give notice at the date, time and location of its meetings to make available a copy of the agenda. This is important. A notice must be posted in a prominent public location and the office of the clerk of the public body or the chief administrator on the official government website if any and provides any person who's requested in writing. Notice must be given at least three working days in advance and votes of a public body must be taken in an open public meeting. This we've seen, you know, you cannot take any type of votes in a closed meeting. So if you guys go into a closed session, you know, for any reason, of course, in accordance with the statute, because that's laid out in there as well. No votes can be taken in closed session. Meeting requirements for closed session, as I just stated, those are laid out in Virginia Code Section 2.2, 37.11 A, under limited circumstances, with lawfully in a notice, meaning a public body may enter a closed session. And you can adopt a motion to enter a closed session. You need three parts of the motion. The parts are laid out in subsection 2.2, 37, 11, A. The purpose of the closed session, which is also instructed and mandated in that same subsection of the statute. And then the subject matter of the closed section. So something more than just the language that's in the statute to describe the topic of a meeting. Like if you have, for example, a personnel matter, you're not gonna wanna say, bless you. You're not gonna wanna say the name of the employee or to whom that you're talking about. You're gonna wanna put enough in there so that it says why you're in closed session, but without revealing the identity of the person. Me and requirements for closed sessions as I just stated personnel issues, real estate matters, probable or pending litigation and advice of legal counsel to the public body. A question that we're commonly asked is whether or not the town attorney is the BZA attorney, and that kind of can depend and differ from application to application. Meeting requirements for closed session, at the end you're gonna re-enter into open session, and then you have to make the appropriate motion once you're back on the record. Again, no binding votes. You can take a straw poll, which is not an official vote. That's just more so maybe just trying to get a full of a consensus, but I typically advise that there were no votes or anything that were alluding to voting in a closed session. I know that was a lot, and I know that it was quick. But I know some of the veterans are probably already familiar with FOIA. And then Virginia also has its FOIA statutes. It was stayed for the conflict of interest law. The most important part of this one that's going to affect you guys would be, of course, any personal interest in matters that you're dealing with or having to place votes on or that come before you. The purpose of FOIA is to ensure that all levels of government remain untainted by corruption, by prohibiting involvement of legislative members in certain activities, contracts or votes where in their judgment would be clouded by personal interests, no personal interests in a transaction. And the close action for this is 2.2, 3100. We have, again, I know I told you already, provided you copies of this entire code section from the Virginia statutes. And so it's in the materials you have. Perhypening conduct, be the acceptance of money or things of value. No officer employee may solicit, offer, or accept consideration for performing services, employment, employment, employment or promotion of any person or for using public position to obtain a contract. Prohibited conduct would be confidential information, so no officer employee may use for his own economic benefit or of another party confidential information that you've learned because of your public position. Habitat conduct also includes influence and so that would be the acceptance of any money, loan, gift, favors, service, or business, or professional opportunity that reasonably tends to influence him in the performance of his official duties. This doesn't apply to political contributions that are actually used for a campaign or constituent services. And the acceptance of any business or personal opportunity if he knows that there's a reasonable likelihood that the opportunity is being afforded to him in the performance of his official duties. This just gives a long list of gift exclusions. The one that always pops out to me is a low threshold for monetary gifts. If you see it's gifts less than $20 in value, so it's extremely, extremely low in order to be excluded. I don't know what many of us can get these days for less than $20. So I always point that out to everyone when they're asking about different things that they might be accepting. I'm like, make sure you pay attention to the monetary value because it's, the threshold's pretty low. Personal interest. This means a financial benefit or liability accruing to an officer or employee or to a member which was a immediate family. It sets out different parameters for this. It says such interest shall exist by reason of, and then it goes into ownership of a business, annual income, and I'm skimming, of course. So you guys can come in, I'm just trying to be conscious of time, and then it's a salary, other compensation, ownership, or real or real personal property. As you see a lot of them have that 5,000 threshold personal liability incurred and an option of ownership or business of real personal property. Personal interest in a transaction means a personal interest of an officer or employee in any manner considered by an agency. Such personal intrigues exist when an officer or an employee or member of Fredas and Mina family has a personal interest in property or business or represents or provides the service to any individual or business in such property. These next few slides are going to go through personal interest in a transaction in great detail. This one is really important. Now, I want to get to what you do if you do have a personal interest in a transaction because I want to make sure I touch on that with you guys while I'm up here. I'm just going to go through personal. If a personal interest in a transaction exists, generally the member must disqualify and not participate in a transaction, which that means you cannot vote in the matter. Before the public body, as recorded in the public body's records, the exceptions to this are members of business, profession, occupational group, who are more affected by a transaction, and the member discloses slash disclaims. And disclosure and disclaim, it's two different steps. You're going to want to disclose and you also have to disclaim. There's an oral prompt to it and then there's also a written prompt. So you're going to disclose on the record and then there's a disclosure form that needs to be filled out. A party to transaction and client or firm does not personally represent a member disclosed a disclaim and transaction affects public generally. A good thing to remember about COIA is that this disclosure and disclaim in the mandates and the statutes for COIA, Andrew, not like to consider those like the floor, they're not disabling. Of course, you guys, to the extent, you know, if someone feels this, they like to consider those like the floor. They're not disabling. Of course you guys, to the extent, you know, if someone feels this, they need to recuse themselves. You do have a right to do that. Disqualification, you're gonna make the disclosure of the existence of your interests, and it tells you the different things that need to be included in the disqualification. Disclosure, disclaimer of members. This goes through, like you're gonna declare the transaction involved, the nature, the member and that he's able to participate in traction fairly. I mean, like I said, you make it orally and in writing with the body by the end of the next business day. This is laying out the disclosure just claim before a member of a firm, not personally represented from a party church interaction. And like we said, we've given you all this up so you guys can refer to the city extent. You have a situation like this. You have a ready reference where you can go back to see what needs to be done and what's been statutorily required. I know that was a lot and I know it was quick but if you have any questions just let me know. Yeah any questions about anything. One thing that I would like to touch based on briefly is the question of are we your lawyer or not just appointed that out? And the answer is maybe. We are the town attorney, but we cannot represent you if there is a conflict of interest. So for example, if our client, Nora, or our client, the Zone Administrator has made a decision that is on appeal to you, then we are here representing them. And we can't really represent you on that. Okay. If there is a variance, it may be a situation where the county government has taken a position on this variance that it's a great idea or a terrible idea and we might very well be here representing those interests or they might say, you know, we'll handle the town's position or the town may be neutral. Often variances are neighbor disputes, as you know. Sometimes, you know, somebody wants to go into the setback, somebody says, don't go in in my setback. In those kinds of cases, the town may very well say, why don't you serve as the attorney for the BZA in that case? And so in that kind of a case, you know, one of us could be your council and go into close session with you or whatever you want us to advise you on. So that's sort of, I want to explain a little bit about the maybe. Maybe were your Lord? Maybe we're not. Right now we're here as town attorney to give you general information about how it works. Well thank you all very much for listening to us. We really appreciate it. Thank you. As I see it, Thank you. Thank you. I see you all. Thank you. So then the next Miss Nora of the day meeting date the termination of next meeting Next upon the agenda is the termination the next meeting Miss Amos did you want This Cornelius might have to remind me but I'm doing here I'm not sure when we'll be able to do it. There are some things There's the applicant's timeline. We have a staffing shortage and then we have someone who may be out on paternity leave. We'll hopefully be out on paternity leave here very shortly. So it was perhaps the week of the 22nd. Did we talk about that? What did we talk about Bernie? OK. So April, Wednesday, April 17th was the one day that you initially said that we should be- Oh, because you're on vacation that week. And I'm living town that day. Yeah, could we maybe send out a poll to you all, or for sometime in April, late April, ideally? Yeah, because I know the 17th wouldn't work for me. Okay. We might, what about the 24th? And I know you're gone and we'll be back. We'll take care of it. That's 24th. So Wednesday and could we do 530 or do your schedules not allow for 530? I can do 530. I can do 530. I can make a pork. Can you do 530 can you do 530 okay so is there anyone who can't do the 24th at 530 a Wednesday and I will follow up with this date via email with you tomorrow so that you can put it on your calendars at the refrigerator or wherever else you need to put it. Okay, yeah, Northern. Thank you. Unfortunately, that sounds lovely. Okay, well we'll get that to you and we'll provide you with a staff report. We will have to advertise for the application. We let you know that we have an application. I hope, I'm not sure if that came through, but we've received an application for a variance and that's why we're having this training before you all have a public hearing. So we'll notify a joining property owners, we'll advertise it in the newspaper, and we'll work on a staff report to get out to you all and then we'll hold the public hearing next month. Do you all have any questions as kind of a follow-up to the presentation or how that will flow? And if you have questions either call us or email us and we'll get you the answer. Absolutely, but if you have questions now I'm happy to go through those. Well, you don't really know what involved with it anyway, yeah. Yes, you're having a test on the new booklet that you received. And so how it'll go, because it's been so long since we've had a hearing, the staff hopefully Mr. Keller will be here to give a presentation and recommendation. It'll basically be an outline of the staff report that you'll receive prior to the meeting. And so we'll make that presentation go over what the request is, what we see the town code being and how we made the interpretation that they aren't able to do what they asked to do. And then what the state code reference is as far as how that could be handled. And we will provide you with a recommendation. You do not have to follow our recommendation. We just do find that it's sometimes helpful. And then after that, the Mr. Longest will open the public hearing. Any public who's come to attend, usually a neighbor will come and speak, and then Mr. Longest will close the public hearing, and then you all will bring it back to the BZA to provide discussion. And so usually how that would work is each of you would ask questions of either staff, the town attorney, or the applicant, and then provide just kind of feedback on how you see the application and how it works with the zoning ordinance in the state code. Is that kind of makes sense and a good overview? Okay, any questions? And again, feel free to reach out to us over the next few weeks if something comes up. So, do you mind using the microphone? We can't hear anything in this room. It's terrible. So, so would we make the decision that's that same day or we meet separate? Yes, ma'am. No, you should make the decision that day. If there are some, if there's an odd circumstance, then you could defer it. But ideally it's a hearing and that you should go ahead and make that make the decision. Make the decision while the people are in the hearing. While everybody's here, it's an open and public meeting and conversation. Yes. Thank you. people are in the here. While everybody's here, it's an open and public meeting and conversation. Yes. Thank you. And I think that's why the attorney also mentioned about keeping a record of stating your findings so that basically the reasons for your choice. Yeah. And in the point to that is oftentimes, if there is a BZA case, there could also be a court case. And so any conversations that you, any public input that we receive and any conversations that you all have or discussions goes into the official record and that's what a judge would review on appeal. Just like if you went to circuit court and you didn't like what the circuit court judge said, that would get, you could appeal, go to the court of appeals and they would have all of the records, kind of word for word or bait and records, to review your appeal. And so this is similar, you're that first level of review, and so everything gets put on the record. Okay. I can't talk about it because we don't know what it is anyways. That's true, but we'll get it to you. And as the town attorney mentioned, the staff can't really talk to you about the nuances of the case other than the staff report we're going to provide to you. But if you have any legal type questions, we may give those to the town attorney. If not, we're willing to get you a separate board of zoning appeals attorney if you need to ask some specific questions. Okay. Thank you all so much for your being here and I'm sorry that it's been so long since we met. It's good to see everyone. I'm not sure. That's true. It's good. Actually if zoning is doing it and if they're doing their business business we shouldn't be meeting very often. Well, with that, they're doing a good job. Any other, any in all matters? All good? But then, to clear it adjourned.