15.2-2314 - Certiorari to review decision of board.
§ 15.2-2314. Certiorari to review decision of board.
Any person or persons jointly or severally aggrieved by any decision of theboard of zoning appeals, or any aggrieved taxpayer or any officer,department, board or bureau of the locality, may file with the clerk of thecircuit court for the county or city a petition that shall be styled "In Re:[date] Decision of the Board of Zoning Appeals of [locality name]"specifying the grounds on which aggrieved within 30 days after the finaldecision of the board.
Upon the presentation of such petition, the court shall allow a writ ofcertiorari to review the decision of the board of zoning appeals and shallprescribe therein the time within which a return thereto must be made andserved upon the secretary of the board of zoning appeals or, if no secretaryexists, the chair of the board of zoning appeals, which shall not be lessthan 10 days and may be extended by the court. The allowance of the writshall not stay proceedings upon the decision appealed from, but the courtmay, on application, on notice to the board and on due cause shown, grant arestraining order.
Any review of a decision of the board shall not be considered an actionagainst the board and the board shall not be a party to the proceedings;however, the board shall participate in the proceedings to the extentrequired by this section. The governing body, the landowner, and theapplicant before the board of zoning appeals shall be necessary parties tothe proceedings. The court may permit intervention by any other person orpersons jointly or severally aggrieved by any decision of the board of zoningappeals.
The board of zoning appeals shall not be required to return the originalpapers acted upon by it but it shall be sufficient to return certified orsworn copies thereof or of the portions thereof as may be called for by thewrit. The return shall concisely set forth such other facts as may bepertinent and material to show the grounds of the decision appealed from andshall be verified.
If, upon the hearing, it shall appear to the court that testimony isnecessary for the proper disposition of the matter, it may take evidence orappoint a commissioner to take evidence as it may direct and report theevidence to the court with his findings of fact and conclusions of law, whichshall constitute a part of the proceedings upon which the determination ofthe court shall be made. The court may reverse or affirm, wholly or partly,or may modify the decision brought up for review.
In the case of an appeal from the board of zoning appeals to the circuitcourt of an order, requirement, decision or determination of a zoningadministrator or other administrative officer in the administration orenforcement of any ordinance or provision of state law, or any modificationof zoning requirements pursuant to § 15.2-2286, the findings and conclusionsof the board of zoning appeals on questions of fact shall be presumed to becorrect. The appealing party may rebut that presumption by proving by apreponderance of the evidence, including the record before the board ofzoning appeals, that the board of zoning appeals erred in its decision. Anyparty may introduce evidence in the proceedings in the court. The court shallhear any arguments on questions of law de novo.
In the case of an appeal by a person of any decision of the board of zoningappeals that denied or granted an application for a variance, or applicationfor a special exception, the decision of the board of zoning appeals shall bepresumed to be correct. The petitioner may rebut that presumption by showingto the satisfaction of the court that the board of zoning appeals appliederroneous principles of law, or where the discretion of the board of zoningappeals is involved, the decision of the board of zoning appeals was plainlywrong and in violation of the purpose and intent of the zoning ordinance.
Costs shall not be allowed against the locality, unless it shall appear tothe court that it acted in bad faith or with malice. In the event thedecision of the board is affirmed and the court finds that the appeal wasfrivolous, the court may order the person or persons who requested theissuance of the writ of certiorari to pay the costs incurred in making thereturn of the record pursuant to the writ of certiorari. If the petition iswithdrawn subsequent to the filing of the return, the locality may requestthat the court hear the matter on the question of whether the appeal wasfrivolous.
(Code 1950, §§ 15-834 through 15-839, 15-850, 15-958.11; 1950, p. 176; 1962,c. 407, § 15.1-497; 1975, c. 641; 1988, c. 856; 1994, c. 705; 1996, c. 450;1997, c. 587; 2001, c. 422; 2003, c. 568; 2005, cc. 625, 677; 2006, c. 446;2010, c. 241.)