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HomeMy WebLinkAboutAP201800002 Correspondence 2019-01-18COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 MEMORANDUM To: Members of the Board of Zoning Appeals Amelia McCulley, Zoning Administrator Andy Herrick, County Attorney From: Bart Svoboda — Chief of Zoning/Deputy Zoning Administrator Subject: Letter from Peter Caramanis dated December 31, 2018 Re: AP2018-00002 Roslyn Farm and Vineyard Date: January 17, 2019 Attached you will find a letter from Peter Caramanis dated December 31, 2018 regarding the decision from the December 4, 2018 BZA meeting relating to AP2018-00002 Roslyn Farm and Vineyard. At that meeting, a motion was made to deny the appeal. The BZA vote was taken and the outcome was a tie vote, 2-2, which resulted in the failure to overturn the appeal as requested. Through the attached letter, the attorney for the appellant is requesting that the appeal be carried over to a future meeting or reconsidered. You will also find the email response dated January 16, 2019 from Andy Herrick to John Shepherd regarding the letter referenced above. This email response included a copy of the BZA Rules of Procedure which are also attached. Additionally, you will find attached references from the Code of Virginia regarding ex parte communications, the carry-over of items resulting in a tie vote, and the procedure for appeal as they relate to the Board of Zoning Appeals. Please be familiar with this information as you review this request. Thank you. BJS ROY E R PETER J. CARAMANIS FEM Attorney Late & p CARAMANIS caramanis(arcmplc.c.com 200-C Garrett Street M c D O N O U G H Charlottesville, VA 22902 (434) 260-8767 ■ Fax (434) 710-4061 REAL ESTATE f BUSINESS E BANKING N WILLS, TRUSTS & ESTATES N CIVIL LITIGATION I! CRIMINAL DEFENSE II FAMILY LAW & MILITARY LAW COLLISON F. ROYER PETER J. CARAMANIS STACEY L. MCDONOUGF JESSICA F. PHILLIPS ERNESTA. HARPER SHELLIE S. TAYLOR TAYLOR R. ODOM SAMANTHA V. RICCI 31 December ? , 2018 Mr. John Shepherd, Chair Albemarle County Board of Zoning Appeals 401 McIntire Road Charlottesville, VA 22902 Via Hand Delivery RE: AP2018-00002 — Roslyn Farm and Vineyard Appellant: MESA Associates / John & Trula Wright Dear Mr. Shepherd: As you know, the above -referenced matter came before the Board of Zoning Appeals on December 41 2018. Based on procedural deficiencies at that hearing, as outlined below, I am writing to request that this appeal be carried over to a future meeting, or reconsidered, as the case may be. The issues are as follows: 1. At the meeting on December 4, 2018, the motion made was "to deny the appeal." The resulting vote was 2-2. According to the Albemarle County BZA Rules of Procedure Section 5.D., a "tie vote shall defeat the motion voted upon." In other words, the motion to deny the appeal was defeated by the tie vote. According to Section 5.E., "the defeat of a motion to deny a matter shall not be deemed to be approval of the matter. In such a case, the Chair shall call for another motion." Accordingly, the defeat of the motion to deny the appeal did not serve to grant the appeal, but also, therefore, did not serve to resolve the matter in any fashion, and the issue remains before the BZA for determination. That evening, it was treated as if the result of the motion was to deny the appeal, but based on the BZA's Rules of Procedure, that is an incorrect result. Since this matter does need to come back before the BZA for some final action, and since the vote on December 4 was 2-2, we respectfully request that the matter be carried over to a meeting after a fifth member of the BZA has been appointed and can cast a deciding vote. 2. Also at the December 4, 2018 meeting, you will recall that I interjected to ask if I could be heard regarding a motion for deferral. I was immediately shouted down by the property owners' attorney, and while it seemed the BZA briefly contemplated allowing me to be heard, ultimately, I was not allowed that opportunity. It was my intent to request a deferral until a fifth BZA member is appointed. According to the BZA Rules of Procedure 3.D., "The BZA may defer any matter at the request of a member of the BZA, the County staff, or the applicant or appellant. The request may ROYER, CARAMANIS & MCDONOUGH, PLC IS A VIRGINIA PROFESSIONAL LIMITED LIABILITY COMPANY www.rcmplc.com be made either orally at the meeting, or in writing, and may be made at any time prior to the vote on the matter." At the time I attempted to request a deferral, no vote on the matter had been taken, and I should have been allowed to be heard, but was not. Because it seems that no final decision has been made on this appeal, we believe this request is properly treated as a motion to carry over, and not as a motion for rehearing. That being said, to the extent the BZA considers that a decision was actually made on December 4, despite the facts summarized in numbered paragraph 1, above, we ask that you treat this as a request for a rehearing of the matter after a fifth and deciding BZA member is seated. Thank you for your consideration of this request. I would be glad to answer any questions you or the other BZA members may have as you consider it. Best regards. Very truly yours, W --Y-- Peter J. aramanis Cc: John & Trula Wright ROYER CARAMAN IS St Page 2 of 2 _,_.u_ McDONOUGH Bart Svoboda From: Andy Herrick Sent: Wednesday, January 16, 2019 1:14 PM To: John Shepherd Cc: BZA; pcaramanis@rcmplc.com Subject: RE: February BZA meeting Attachments: BZA Rules of Procedure 181113.pdf John, Thanks for your call last Friday. As we discussed, though I do not represent die Board of Zoning Appeals, I am happy to share die legal positions of die Board of Supervisors and its Zoning Administrator wide you and the BZA. On a related note, C'odc § 15.2-2308.1 prohibits bode (a) die non -legal staff of a governing body and (b) an applicant, landowner or his agent or attorney from having an ex parte discussion of die facts or law relative to a particular case wide a member of die BZA prior to the hearing. Though there is no such prohibition on discussions between BZA members and the le I staff of a governing body, I am cc:ing die appellant's attorney on this response out of an abundance of bode caution and transparency. Though there are three potential ways of addressing die appellant's letter of December 31, die County does not believe that this item should be carried over, reconsidered, or reheard. Carrying Over: I irbillrt Code § 15.2-23 1. 1 (D) provides that in appeals to the BZA, "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 die person filing die appeal." Note that though die appellant may re uest that die matter be carried over, die BZA is not obligated to grant that request, as indicated by die discretionary "may" of die statute. The County would suggest that the BZA not grant die appellant's request, with one limited exception: if die BZA wished to "carry over" die item for die sole purpose of confirming, on a motion to reverse die official determination, that the appellant lacks die dhree votes necessary for reversal under C,ocle § 15.2-231.2. Reconsideration: Section 5(I) of the BZA's Rules of Procedure (attached) allows BZA members to move for reconsideration of any decision, but only "at die same meeting or an adjourned meeting held on die same day at which die matter was decided." Therefore, at this point, such a motion would be untimely and out of order. Rehearing: Sections 5Q) of the BZA's Rules of Procedure allow any decision of die BZA to be relheard upon a member's motion for rehearing approved by at least three affirmative votes. However, die BZA may grant die motion only if it finds: (A) that die decision has not already been appealed to die Circuit Court and (B) either (1) that new evidence can be presented that, in die opinion of die BZA, is relevant and material to die decision but could not have been presented at the original hearing; or (2) that in die opinion of the BZA, one or more relevant and material conditions or situations have changed so as to bear on the BZA's original decision. In other words, to properly grant a motion to rehear, there must be new evidence (drat could not have been previously presented) or new facts. Neither condition applies here. The appeal was fully presented at die prior hearing, and die BZA has already heard and considered all relevant evidence. Not only is there no need for a rehearing, there are no legal grounds for one. In short, the BZA is not. obligated to carry over its prior tie vote, arid cannot properly reconsider or rehear its prior decision. The I3ZA can best address this request by simply entcrtvning a motion to carry over its tie vote, pursuant to I ll- ttra C odc § 15.2-2311(1)If that motion fails (including by another tie vote), the prior tie vote would not be carried over and the BZA's role would be concluded. If the motion to carry over passes, the County suggests that the BZA simply confirm, on a motion to reverse the official determination, that the appellant lacks the three votes necessary for reversal under I C odt * 1 3.2-2312. Thank you for the opportunity to clarify the County's positions. Andy Herrick Deputy County Attorney County of Albemarle (434) 972-4067 Notice: This email may contain attornev-client privileged information, privileged work product, or other confidential information. It is intended only for the designated recipient. If roll receive this message and are nol a designated recipient you are requested to delete This message ininiediately and notify me that you have received this by mistake. "Thank you. From: Bart Svoboda Sent: Friday, January 11, 2019 10:04 AM To: John Shepherd <jbshepherdl@gmail.com> Cc: Amelia McCulley <AMCCULLE@albemarle.org>; Andy Herrick <aherrick@albemarle.org> Subject: RE: February BZA meeting John, Hope all is well. After speaking with the County Attorney's Office, it is probably best to have you speak directly with Andy Herrick regarding the February BZA meeting process and carry over request. Please let me know if I can be of further assistance. Thanks. Bart J. Svoboda Chief of Zoning / Deputy Zoning Administrator County of Albemarle, Virginia 434-296-5832 ext.3225 bsvoboda@albemarle.o www.albemarle.ore From: Amelia McCulley Sent: Wednesday, January 9, 2019 9:03 AM To: Bart Svoboda <bsvoboda@albemarle.org> Subject: FW: February BZA meeting From: John Shepherd <ibshepherdl@gmail.com> Sent: Tuesday, January 08, 2019 10:10 PM To: Amelia McCulley <AMCCULLE@albemarle.org> Subject: February BZA meeting Amelia, I would like to talk about the February meeting after you've had a chance to sort out the issues attached to the rehearing request. Thanks. John ALBEMARLE COUNTY BOARD OF ZONING APPEALS RULES OF PROCEDURE The Albemarle County Board of Zoning Appeals, under the authority of Virginia Code § 15.2-2308 and Albemarle County Code § 18-34.1, establishes the following rules of procedure: 1. Officers A. Chair. At its annual meeting, the Board of Zoning Appeals ("BZA") shall elect a Chair who, if present, shall preside at the meeting and at all other meetings during the year for which elected. On any application or appeal, the Chair may administer oaths and compel the attendance of witnesses. B. Vice -Chair. At its annual meeting, the BZA shall elect a Vice -Chair, who, if present, shall preside at meetings in the absence of the Chair and shall discharge the duties of the Chair during his absence or disability. C. Secretarv. At its annual meeting, the BZA shall elect a Secretary. The Secretary may be either a member of the BZA or another person. The duties of the Secretary shall include keeping and maintaining custody of the records of the BZA, drafting and signing all correspondence necessary for the execution of the duties and functions of the BZA, and such other duties as these rules may provide and the BZA may, from time to time, assign. D. Recording Secretaa. The Zoning Administrator, or his or her designee, shall serve the BZA as its Recording Secretary. The duties of the Recording Secretary shall include keeping the minutes of the BZA's meetings and such other duties as these rules may provide and the BZA may, from time to time, assign. E. Other O f ces. At any of its meetings, the BZA may create and fill any other offices as it deems necessary. F. Term of Q(fice. The Chair and Vice -Chair shall be elected for one-year terms, and until their respective successors take office. Either or both officers may be re-elected for one or more additional terms. G. Vacancies in Office. Vacancies in office shall be filled as soon as practicable using the election procedures provided herein. H. Absence of Chair and Vice -Chair. If the Chair and Vice -Chair are absent from any meeting, a present member shall be chosen to act as Chair. 2. Meetings A. Annual Meeting. The first meeting of each year shall be known as the annual meeting. At the annual meeting, the BZA shall establish the day, time, and place for regular meetings of the BZA for that year, and shall elect the Chair, the Vice - Chair and the Secretary. B. Regular Meetings. The BZA shall meet in regular session at the time and place and on the day or days established for regular meetings. The BZA may subsequently establish a different day, time, or place to conduct its regular meetings by passing a resolution to that effect. If the Chair, or the Vice -Chair if the Chair is unable to act, finds and declares that weather or other conditions are such that it is hazardous for BZA members to attend a regular meeting, the meeting shall be continued to the next regular meeting date. This finding shall be communicated to the members of the BZA and to the press as promptly as possible. Without further public notice, a regular meeting may be adjourned from day to day or from time to time or from place to place, not beyond the time fixed for the next regular meeting, until the business of the BZA is complete. C. pecial Meeting. The BZA may hold special meetings as it deems necessary at such times and places as it deems convenient. A special meeting may be adjourned from time to time as the BZA finds necessary and convenient. A special meeting shall be held when called by the Chair or requested by two or more members of the BZA. The call or request shall be made to the Recording Secretary and shall specify the matters to be considered at the meeting. Upon receipt of the call or request, the Recording Secretary, after consultation with the Chair, shall immediately notify each member of the BZA and the County Attorney's Office. The notice shall be in writing and shall be mailed or delivered to each BZA member or to his or her place of residence or business at least five (5) days prior to the special meeting. The notice shall state the time and place of the special meeting and shall specify the matters to be considered. No matter not specified in the notice shall be considered at the meeting unless all members are present. The notice may be waived if the time of the special meeting was fixed at a regular meeting, if all members are present at the special meeting, or if all members sign a waiver for the notice. Whenever state law requires public notice of a special meeting of the BZA, the Recording Secretary shall provide such notice in accordance with Virginia Code § 15.2-2204. 2 3. Order of Business A. Agenda Established by Secretary. The agenda for each regular meeting shall be established by the Secretary in consultation with the Chair. B. Organization of the Agenda. The agenda of each regular meeting shall be organized in substantially the following order, subject to change at the request of the Chair and with the consensus of the other members of the BZA: (1) Call to order. (2) Establish quorum. (3) Matters deferred from previous meetings. (4) Scheduled matters: hearings on special use permits, variances and appeals. (5) Work sessions. (6) Review and approval of minutes of previous meetings. (7) Old business. (8) New business. (9) Adjournment. C. Time Limits for Applicants, Appellants and Other Speakers. The BZA shall offer an equal amount of time in a hearing to the applicant/appellant and County staff. The applicant/appellant and County staff shall each be allowed a total of fifteen (15) minutes to present its respective case at the outset of the hearing, and five (5) additional minutes to present rebuttal or closing remarks at the close of the hearing. Each person other than a party to the case or his/her legal representative(s) shall be allowed one appearance not to exceed three (3) minutes. A speaker may not reserve any initial speaking time for rebuttal or transfer any time to another speaker. The time limits set forth herein shall not include any time during which the applicant or other speaker is responding to questions asked by the BZA. The Recording Secretary shall act as the timekeeper. The BZA may set alternate time limits to those listed herein, provided that they are identified at the BZA meeting prior to the meeting at which these new limits would be used. D. De errals. The BZA may defer any matter at the request of a member of the BZA, the County staff, or the applicant or appellant. The request may be made either orally at the meeting, or in writing, and may be made at any time prior to the vote on the matter. The person making the request shall state the reasons therefor. In considering a request for a deferral of a hearing of an appeal or an application for a variance pertaining to a zoning violation, the BZA should consider the reasons for the deferral if the request is submitted by the appellant or applicant, the recommendation of staff, and the comments of any member of the public. In making its decision to grant or deny a request, the BZA should consider the following factors: (1) whether the deferral would promote fairness in the process; (2) whether the deferral would be solely for the convenience or personal benefit of the appellant or applicant; (3) whether the deferral would delay the enforcement or abatement of a violation that is adversely affecting an abutting property, a neighbor, the neighborhood or the public; (4) whether the deferral would allow the appellant or applicant to resolve the underlying issues so that BZA action might be unnecessary; and (5) whether the deferral would allow the BZA to make its decision within ninety days of the filing of the application or appeal, in conformance with Virginia Code § 15.2-2312. A motion to defer shall either specify the date to which the matter is deferred or defer the matter indefinitely. If the motion to defer pertains to a matter for which a noticed public hearing is required and the motion is to defer the matter to a specific date, the Chair shall either close the public hearing or, if the public hearing was not opened, open and then close the public hearing, before the BZA votes on the motion. 4. Ouorum A majority of the members of the BZA shall constitute a quorum for any meeting of the BZA. A majority of the members of the BZA present at the time and place established for any regular or special meeting shall constitute a quorum for the purpose of adjourning the meeting from day to day or from time to time. A meeting shall not be adjourned to a date and time beyond the date fixed for the next regular meeting. If, during a meeting, less than a majority of the members of the BZA remains present, no action can be taken except to adjourn the meeting. If, prior to adjournment, a quorum is again established, the meeting shall continue. If disqualifications under the State and Local Government Conflict of Interests Act (Virginia Code § 2.2-3100 et seq.) leave less than a quorum, the remaining member or members of the BZA shall have authority to act for the BZA by a unanimous vote. 5. Votin2 Procedures A. Approval of Motion. Except as otherwise provided in subparagraphs (1) and (2) and in paragraph (H), each decision of the BZA shall be made by approval of a majority of the members present and voting on a motion properly made by a El member and properly seconded by any other member. Any motion that is not seconded shall not be further considered. Variances. Special Use Permits and Other Matters. At least three (3) affirmative votes shall be required to grant a variance, to grant a special use permit, or to decide in favor of an applicant on any other matter upon which the BZA is required to act upon under the Zoning Ordinance. 2. Appeals. At least three (3) affirmative votes shall be required to reverse any appeal from an order, requirement, decision or determination of an administrative officer. B. Time for Vote. Any matter before the BZA requiring a public hearing shall not be decided by the BZA until the public hearing has been held. The BZA may, however, in its discretion, defer the holding of a public hearing or consideration of such matter, in conformance with paragraph 3(E) above. C. Manner of Vote. The vote on a motion pertaining to any variance, special use permit, appeal, or application for interpretation of the district map shall be by roll call vote. Any other matter may be either by roll call vote or voice vote, in the discretion of the Chair; provided that a roll call vote on such a motion shall be required if requested by a member of the BZA. For each roll call vote, the Recording Secretary shall record the name of each member voting and how the member voted on the motion. For each voice vote, the Recording Secretary shall record the result of the vote. D. Tie Vote. A tie vote shall defeat the motion voted upon. E. Effect ofDefeat of Motion to Deny. The defeat of a motion to deny a matter shall not be deemed to be approval of the matter. In such a case, the Chair shall call for another motion. F. Abstention. If any member abstains from voting on any motion, he shall state his abstention. The abstention shall be announced by the Chair and recorded by the Recording Secretary. G. Motion to Amend. A motion to amend a motion before the BZA shall be discussed and voted by the BZA before any vote is taken on the original motion unless the motion to amend is accepted by both the members making and seconding the original motion. If the motion to amend is approved, the amended motion is then before the BZA for its consideration. If the motion to amend is not approved, the original motion is again before the BZA for its consideration. H. Previous Question. The discussion of any motion may be terminated by any member moving the "previous question." Upon a proper second, the Chair shall call for a vote on the motion of the previous question. If approved by a two-thirds majority of those voting, the Chair shall immediately call for a vote on the original motion under consideration. A motion of the previous question shall not be subject to debate and shall take precedence over any other matter. I. Motion to Reconsider. Any decision made by the BZA may be reconsidered if a motion to reconsider is made at the same meeting or an adjourned meeting held on the same day at which the matter was decided. The motion to reconsider may be made by any member of the BZA. Upon a proper second, the motion may be discussed and voted. The effect of the motion to reconsider, if approved, shall be to place the matter for discussion in the exact position it occupied before it was voted upon. J. Motion for Rehearing. Any decision made by the BZA may be reheard upon the granting of a motion for rehearing approved by at least three affirmative votes. The motion may be made only after consideration of a written application by the person requesting rehearing, which shall be filed within thirty (30) days after the date of the BZA's original final decision. The BZA may grant the motion if it finds that the decision has not already been appealed to the Circuit Court and: (1) new evidence can be presented that, in the opinion of the BZA, is relevant and material to the decision but could not have been presented at the original hearing; or (2) in the opinion of the BZA, one or more relevant and material conditions or situations have changed so as to bear on the BZA's original decision. If the BZA grants the motion, it shall set the date for rehearing. Notice of the rehearing shall be provided as otherwise required for the matter being reheard. 6. Final Decision A. Date o�final decision. For the purpose of calculating the time in which an aggrieved party may submit a petition for writ of certiorari in Circuit Court requesting the court to review the decision of the BZA, the date of the BZA's final decision shall be the date on which the BZA took its final vote on the merits of the matter. B. Deferral o�fnal decision. If the BZA elects to defer its final decision, nothing in this rule prevents the BZA from obtaining a consensus of its members on the matter to be decided and requesting one or more of the parties to prepare a proposed written decision to be considered when a final vote is taken. C. Effect if written decision adopted after final decision. The date of the BZA's final decision shall not be extended if the BZA later adopts a written decision. 7. Amendment of Rules of Procedure Any of these Rules of Procedure may be amended by a majority vote of the BZA at the next regular meeting following a regular meeting at which notice of the motion to amend is given. rol 8. Suspension of Rules of Procedure These Rules of Procedure may be suspended by the majority vote of the members of the BZA present and voting. The motion to suspend a rule may be made by any member of the BZA. Upon a proper second, the motion may be discussed and voted. The effect of the motion to suspend a rule, if approved, is to make that rule inapplicable to the matter before the BZA; provided, however, approval of a motion to suspend the rule shall not permit the BZA to act in violation of a requirement mandated by the Code of Virginia, the Constitution of Virginia, or any other applicable law. 9. Rules of Procedure not Covered by These Rules of Procedure Any rules of procedure not covered by these Rules of Procedure shall be governed by the current Robert's Rules of Order. (Adopted 1-5-2016) (Last Amended: 11-13-2018) 7 Code of Virginia Title I S.2. Counties, Cities and Towns Chapter 22. Planning, Subdivision of Land and Zoning § 15.2-2308.1. Boards of zoning appeals, ex parte communications, proceedings A. 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 parry engaging in such communication shall inform the other party as soon as practicable and advise the other party of the substance of such communication. For purposes of this section, regardless of whether all parties participate, ex parte communications shall not include (i) discussions as part of a public meeting or (ii) discussions prior to a public meeting to which staff of the governing body, the applicant, landowner or his agent or attorney are all invited. B. 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. C. 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. D. 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. 2015, c. 597. The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired. Code of Virginia Title 15.2. Counties, Cities and Towns Chapter 22. Planning, Subdivision of Land and Zoning § 15.2-2311. Appeals to board A. 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 § 15.2-2286. Notwithstanding any charter provision to the contrary, any written notice of a zoning violation or a written order of the zoning administrator dated on or after July 1, 1993, 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 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 and the zoning administrator's written order is sent by registered mail to, or posted at, the last known address or usual place of abode of the property owner or its registered agent, if any. There shall be a rebuttable presumption that the property owner's last known address is that shown on the current real estate tax assessment records, or the address of a registered agent that is shown in the records of the Clerk of the State Corporation Commission. 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. The fee for filing an appeal shall not exceed the costs of advertising the appeal for public hearing and reasonable costs. 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. For jurisdictions that impose civil penalties for violations of the zoning ordinance, any such civil penalty shall not be assessed by a court having jurisdiction during the pendency of the 30-day appeal period. B. 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. C. 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 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. D. 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. 1975, c. 521, § 15.1-496.1; 1983, c. 12; 1993, c. 780; 1995, c. 424;1997, c. 587;2005, cc. 625, 677; 2008, c. 378;2010, c. 241;2011, c. 457;2012, cc. 400, 550, 606;2017, c. 665. The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired. Code of Virginia Title 15.2. Counties, Cities and Towns Chapter 22. Planning, Subdivision of Land and Zoning § 15.2-2312. Procedure on appeal The board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof as well as due notice to the parties in interest and make its decision within 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. 197S, c. S21, § 1S.1-496.2; 1983, c. 444; 1986, c. 483; 1997, c. S87. The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired. 1/17/2019