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It shall be the duty of the Planning and Zoning Appeals Board to serve in an advisory capacity to City Council, in general, and to do the following.
(A) Acquire and maintain in current form basic information and materials as are necessary to an understanding of past trends, present conditions, and forces at work to cause changes in these conditions.
(B) Prepare and, from time to time, amend and revise a comprehensive and coordinated plan for the physical development of the city.
(C) Establish principles and policies for guiding action in the development of the city.
(D) Prepare and recommend to the City Council ordinances promoting orderly development along the lines indicated in the comprehensive plan.
(E) Determine whether specific proposed developments conform to the principles and requirements of the comprehensive plan for the growth and improvement of the city.
(F) Conduct administrative hearings to review and approve or deny proposed major subdivisions in accordance with the standards and procedures of Planning and Regulation of Development chapters of this code.
(G) Review proposed map and text amendments and make recommendations to City Council.
(H) Keep the Council and the general public informed and advised as to these matters.
(I) Perform any other duties which may lawfully be assigned to it.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21; Am. Ord. 24-06, passed 2-19-24)
(A) As background for its comprehensive plan and any ordinances it may prepare, the Planning and Zoning Appeals Board may gather maps and aerial photographs for man-made and natural physical features of the city, statistics on past trends and present conditions with respect to population, property values, the economic base of the community, land use, and other information as is important or likely to be important in determining the amount, direction, and kind of development to be expected in the city and its various parts.
(B) In addition, the Planning and Zoning Appeals Board may make, cause to be made, or obtain special studies on the location, condition, and adequacy of specific facilities, which may include, but are not limited to, studies of housing; commercial and industrial facilities; parks, playgrounds, and recreational facilities; public and private utilities; and traffic, transportation, and parking facilities.
(C) All city officials shall, upon request, furnish to the Planning and Zoning Appeals Board, available records or information as it may require in its work. The Board or its agents may, in the performance of its official duties, enter upon lands and make examinations or surveys and maintain necessary monuments thereon.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21)
(A) As a condition of adopting and applying zoning regulations, the municipality shall adopt and reasonably maintain a comprehensive plan or land-use plan. The comprehensive plan, with the accompanying maps, plats, charts and descriptive matter, shall be and show the Planning and Zoning Appeals Board's recommendations to the City Council for the development of the territory, including, among other things, the general location, character and extent of streets, bridges, boulevards, parkways, playgrounds, squares, parks, aviation fields and other public ways, grounds and open spaces; the general location and extent of public utilities and terminals, whether publicly or privately owned or operated, for water, light, sanitation, transportation, communication, power and other purposes; also, the removal, relocation, widening, narrowing, vacating, abandonment, change of use or extension of any of the foregoing ways, buildings, grounds, open spaces, property, utilities, or terminals.
(B) The plan and any ordinances or other measures to effectuate it shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted, and harmonious development of the city and its environs which will, in accordance with present and future needs, best promote health, safety, morals, and the general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities, services and other public requirements.
(C) Adoption and effect of plan. Plans shall be adopted by the governing board with the advice and consultation of the Planning and Zoning Appeals Board. Adoption and amendment of a comprehensive or land-use plan is a legislative decision and shall follow the process mandated for zoning text amendments set by §§ 21.007
and 92.140
. Plans adopted under this chapter may be undertaken and adopted as part of or in conjunction with plans required under other statutes. Plans adopted under this chapter shall be advisory in nature without independent regulatory effect. Plans adopted under this chapter do not expand, diminish or alter the scope of authority for development regulations adopted under this chapter. Plans adopted under this chapter shall be considered by the Planning and Zoning Appeals Board and governing board when considering proposed amendments to zoning regulations as required by G.S. 160D-604 and G.S. 160D-605. If a plan is deemed amended by G.S. 160D-605 by virtue of adoption of a zoning amendment that is inconsistent with the plan, that amendment shall be noted in the plan. However, if the plan is one that requires review and approval subject to G.S. 113A-110, the plan amendment shall not be effective until that review and approval is completed.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21)
The Planning and Zoning Appeals Board may initiate, from time to time, proposals for amendment of the zoning ordinance, based upon its studies and comprehensive plan adopted according to § 21.006. In addition, it shall review and make recommendations to the City Council concerning all third party applications and proposals for text and map amendments to the zoning and other related ordinances as outlined in § 92.141. The Board shall follow procedures in accordance with § 92.141, its adopted rules for conducting meetings, and shall ensure all decisions are consistent with general statutes and all officially adopted plans.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21)
(A) The Planning and Zoning Appeals Board shall review, from time to time, the existing regulations for the control of land subdivision in the city and submit to the City Council its recommendations, if any, for the revision of the regulations.
(B) Additionally, the Planning and Zoning Appeals Board shall consider staff recommendations and review and approve or deny all applications and plats for proposed major subdivisions for consistency with city ordinance and general statute. In any instance where deviations are requested from any regulations which are approved by administrative review the Planning and Zoning Appeals Board shall first hear and approve or deny a variance for the deviations prior to considering approval of the subdivision.
(C) In any instance where Planning and Zoning Appeals Board or City Council are granted by ordinance the sole discretion in approval or denial of any aspect of subdivision or development regulations within the city that are conditional in nature, such as conditional zoning or design review districts, the decisions shall be quasi-judicial in nature and conducted by formal hearing in a process similar in nature to a special use permit.
(D) Any appeal of the formal decisions of either board as assigned herein with respect to subdivisions shall be taken to Superior Court unless otherwise stated herein.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21; Am. Ord. 24-06, passed 2-19-24)
The Planning and Zoning Appeals Board shall review with the City Manager and other city officials when requested and report as recommendations to the City Council upon the extent, location, and design of all public structures and facilities, on the acquisition and disposal of public properties, on the establishment of building lines, mapped street lines, and proposals to change existing street lines. However, in the absence of a recommendation from the Planning and Zoning Appeals Board, the City Council may, if it deems wise, after the expiration of 30 days from the date on which the question has been submitted in writing to the Planning and Zoning Appeals Board for review and recommendation, take final action.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21)
The Planning and Zoning Appeals Board shall have the following powers and duties in conducting quasi-judicial hearings and making decisions on applications for various items.
(A) Powers and duties. The Planning and Zoning Appeals Board shall hear and decide requests for variances and appeals of decisions of administrative officials charged with enforcement of the ordinance. As used in this section, the term “decision” includes any final and binding order, requirement, or determination. The Planning and Zoning Appeals Board shall follow quasi-judicial procedures when deciding appeals and requests for variances. The Board shall hear and decide all matters upon which it is required to pass under any statute or ordinance that regulates land use or development.
(B) Notice of hearing. Notice of hearings conducted pursuant to this section shall be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the zoning or unified development ordinance. In the absence of evidence to the contrary, the city may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the city shall also prominently post a notice of the hearing on the site that is the subject of the hearing, or on an adjacent street or highway right-of-way.
(C) Variances.
(1) When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Planning and Zoning Appeals Board shall vary any of the provisions of the ordinance, upon a showing of all of the following:
(a) Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
(b) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.
(c) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.
(d) The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved.
(2) No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this division.
(D) Appeals. The Planning and Zoning Appeals Board shall hear and decide appeals from decisions of administrative officials charged with enforcement of the zoning or unified development ordinance, and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:
(1) Any person who has standing under G.S. 160D-14-2(d) or the city may appeal a decision to the Planning and Zoning Appeals Board. An appeal is taken by filing a notice of appeal with the City Clerk. The notice of appeal shall state the grounds for the appeal.
(2) The official who made the decision shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.
(3) The owner or other party shall have 30 days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have 30 days from receipt from any source of actual or constructive notice of the decision within which to file an appeal. In the absence of evidence to the contrary, notice pursuant to G.S. 160D-4-3(b) given by first class mail shall be deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.
(4) It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign containing the words “Zoning Decision” or “Subdivision Decision,” in letters at least six inches high, and identifying the means to contact an official for information about the decision, is prominently posted on the property that is the subject of the decision, provided the sign remains on the property for at least ten days. Posting of signs is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision. Absent an ordinance provision to the contrary, posting of signs shall not be required.
(5) The official who made the decision shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.
(6) An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from, unless the official who made the decision certifies to the Planning and Zoning Appeals Board, after notice of appeal has been filed, that because of the facts stated in an affidavit, a stay would cause imminent peril to life or property, or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the Planning and Zoning Appeals Board shall meet to hear the appeal within 15 days after the request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay the further review of an application for development approvals or permission to use such property; in these situations the appellant or the city may request and the Board may grant a stay of a final decision on permit applications or building permits affected by the issue being appealed.
(7) Subject to the provisions of division (D)(6), the Planning and Zoning Appeals Board shall hear and decide the appeal within a reasonable time.
(8) The official who made the decision shall be present at the hearing as a witness. If the official who made the decision is no longer employed by the city then their successor shall attend as witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the city would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing. The Planning and Zoning Appeals Board may reverse or affirm, wholly or partly, or may modify the decision appealed from, and shall make any order, requirement, decision, or determination that ought to be made. The Board shall have all the powers of the official who made the decision.
(9) When hearing an appeal pursuant to G.S. 160A-400.9(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in G.S. 160A-393(k).
(10) The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21)
(A) Oaths. The chair of the Planning and Zoning Appeals Board, his or her designee, or any member acting as chair is authorized to administer oaths to witnesses in any matter coming before the Board. Any person who, while under oath during a proceeding before the Board of Adjustment, willfully swears falsely is guilty of a Class 1 misdemeanor.
(B) Quasi-judicial decisions and judicial review. The Board shall determine contested facts and make its decision within a reasonable time. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing and reflect the Board's determination of contested facts and their application to the applicable standards. The written decision shall be signed by the chair or other duly authorized member of the Board. A quasi-judicial decision is effective upon filing the written decision with the Planning and Development Services Department assigned administrator of the Board. The decision of the Board shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.
(1) The administrator or staff to the Board shall transmit to the Board all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the Board prior to the hearing, if at the same time they are distributed to the Board, a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing.
(2) (a) The applicant, the local government, and any person who would have standing to appeal the decision under G.S. 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board. Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board. The Board chair shall rule on any objections, and the chair's rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.
(b) Pursuant to S.L. 2019-111 Section 1.9, if there is no objection before the Board, opinion testimony from a lay witness shall not be considered competent evidence for technical matters.
(C) Voting.
(1) The concurring vote of four-fifths of the Board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this division, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the Board for calculation of the requisite majority, if there are no qualified alternates available to take the place of such members.
(2) A member of any Board exercising quasi-judicial functions pursuant to this section shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, conflicts of interest such as, a member having a fixed opinion that is not susceptible to change prior to hearing the matter, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. If an objection is raised to a member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.
(D) Subpoenas. The Planning and Zoning Appeals Board, through the chair, or in the chair's absence anyone acting as chair, may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under G.S. 160A-393(d) may make a written request to the chair, explaining why it is necessary for certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be appealed to the full Planning and Zoning Appeals Board. If a person fails or refuses to obey a subpoena issued pursuant to this division, the Planning and Zoning Appeals Board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the Court shall have jurisdiction to issue these orders after notice to all proper parties.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21)
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