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BZA reviews rules of procedure; agrees to add state tie-vote language, discusses ex parte contacts and funding for alternates
Summary
Board members debated amending rules to address ex parte communications, oath administration for witnesses, and adding a statutory tie-vote provision. The board asked staff to draft revised rules for adoption at the next meeting and discussed an outstanding request to fund a BZA alternate amid a constrained county budget.
Albemarle County’s Board of Zoning Appeals spent a substantial portion of its Feb. 4 meeting reviewing proposed changes to its rules of procedure and discussing board alternates and budget implications.
Board member Kurt Burkhart proposed several amendments, including requiring the chair to administer oaths and compelling witness attendance, adding a link to meeting recordings in the minutes, creating a standing ex parte-communications disclosure step on agendas, and inserting specific state statutory language for tie votes in appeals.
Nut graf: The board did not adopt rule changes immediately but reached consensus to have staff draft revisions that include the Code of Virginia tie-vote language used for appeals; the board also discussed long-running requests to add a paid alternate position and learned county budget guidance currently pressures departments to submit zero-increase budgets.
Key proposals and board reactions Burkhart initially proposed changing the rule that currently reads the chair “may” administer oaths to “shall” administer oaths for witnesses. After discussion about statutory alignment and practical concerns — including whether subpoenas or perjury prosecutions would follow — Burkhart withdrew the mandatory wording and indicated he would instead consider a more limited approach (chair discretion or practice changes).
Board discussion covered ex parte communications at length. One member urged restraint: “I have, taken the position that subjects that we consider here are things I don't discuss with other people, especially elected officials,” saying judges avoid such communications because of appearance concerns. Other members noted that limited, inadvertent conversations happen and that staff has advised members to disclose any such contacts so all parties can be informed before a hearing.
Tie-vote statutory language and next steps The group agreed it would be appropriate to add the exact language from Code of Virginia —5.2-2311 (tie votes in appeals) to the board’s rules and to the appeals guidance where relevant. The code language states in part: “in any appeal taken pursuant to this section, if the board's attempt to reach a decision results in a tie vote, the matter shall be carried over until the next scheduled meeting at the request of the person filing the appeal.” Members said staff should include the language in a revised draft for formal adoption at the next meeting.
Budget and alternate-member request Board members raised a longstanding item: a request for a paid alternate to ensure a full five-member panel at hearings. Zoning staff said the county’s budget guidance for the coming fiscal cycle was to submit zero-increase proposals. Zoning Administrator Bart Svoboda told the board, “we were charged with no increases in our proposal,” and said staff had nonetheless transmitted the alternate request through departmental channels for consideration. The board discussed making a joint public-comment request to the Board of Supervisors or otherwise following up to ensure the request is reviewed.
Closing and next steps The board asked staff to prepare a revised rules-of-procedure document that (1) inserts the statutory tie-vote language, (2) clarifies the appeals and tie-vote process for applicants, and (3) tracks other cleanups discussed (ex parte disclosure step, minutes/recording references). The board plans to act on a formal adoption at its next monthly meeting after the staff draft is circulated.
