The powers and duties of the Board of Adjustment shall be as follows:
(A) Interpretation. To interpret zoning maps and pass upon disputed questions of lot lines or district boundary lines and any other questions of interpretation that may arise in the administration of this chapter;
(B) Administrative review.
(1) The Board of Adjustment shall hear and decide requests for special use permits, variances, and appeal of decisions of the Town Manager. The term DECISION includes any final and binding order, requirement, or determination. The Board of Adjustment shall follow quasi-judicial procedures when deciding appeals and requests for special uses and variances. The Board of Adjustment may hear and decide all matters upon which it is required to pass under any statute or ordinance that regulates land use or development in the town.
(2) Notice of hearings conducted pursuant to this division (B) 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 town may rely on the county tax listings 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 hearing. Within that same time period, the town 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. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.
(3) The Board of Adjustment 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. The Board of Adjustment must allow parties with standing to participate fully in the evidentiary hearing, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments. The Board may allow parties without standing to present competent, material, and substantial evidence that is not repetitive. If an objection arises at the hearing as to the inclusion or exclusion of administrative materials, the Board Chair must rule on this objection at the hearing. An appeal of this ruling may be considered by the full Board pursuant to G.S. § 160D-406(d). 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 Town Manager. The decision shall be delivered by personal delivery, electronic mail, or by first class mail to the applicant or property owner as may be applicable, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The Town Manager shall certify that proper notice has been made.
(4) Every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari (G.S. § 160D-406(k)). A petition for review shall be filed with the Clerk of Superior Court within the period specified by G.S. § 160D-1405(d).
(5) Members of the Board of Adjustment exercising quasi-judicial functions shall not have a fixed opinion on a matter prior to hearing; shall not have undisclosed ex-parte communication with an applicant, a close familial, business, or other associational relationship with an applicant or a financial interest in the outcome. 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.
(6) The Chair of the Board of Adjustment or any member acting as Chair and the Town Manager are 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 I misdemeanor.
(7) The Chair of the Board of Adjustment or anyone acting as Chair, may subpoena witnesses and compel the production of evidence. Any person with standing under G.S. § 160D-406(g) may make a written request to the Chair explaining why it is necessary for certain witnesses or evidence to be compelled. The Chair or person acting as 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 Board of Adjustment. If a person subpoenaed fails to obey the subpoena, the Board of Adjustment or the party that requested the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed.
(C) Special uses.
(1) Upon application, the Board of Adjustment may grant in particular cases and subject to appropriate conditions and safeguards, permits for special uses as authorized by this chapter, and set forth as special uses under the various use districts.
(2) A special use permit may be granted by the Board of Adjustment only after making the following findings:
(a) An application for the special use has been submitted as prescribed by this chapter;
(b) 1. If the Board of Adjustment finds, in the particular case in question, that the use, including any proposed structures:
a. Will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved;
b. Meets all required conditions and specifications of this chapter and other applicable rules, regulations, and standards;
c. Will not substantially injure the value of adjoining or abutting property;
d. Will be in general conformity with the plan of development of the town and its environs;
e. Will be reasonably compatible with significant natural and topographic features on the site and within the immediate vicinity of the site given the proposed site design and structure design;
f. Will be in harmony with scale, bulk, height, coverage, density, and character of the area or neighborhood in which it is located; or
g. Is appropriately located with respect to transportation facilities, water supply, fire and police protection, waste disposal, and similar facilities, and will not cause undue traffic congestion or create a traffic hazard.
2. In granting such a permit, the Board of Adjustment may designate such conditions in connection therewith that will, in its opinion, assure that the proposed use will conform to the requirements and spirit of this chapter. However, the Board of Adjustment shall not impose conditions on special use permits that the town is not statutorily allowed to impose.
(c) Before any special use permit is issued, the Board shall make written findings certifying compliance with the specific rules governing the individual special use (see § 153.008), and that satisfactory provision and arrangement has been made for at least the following, where applicable:
1. Satisfactory ingress and egress to property and proposed structures thereon, with particular reference to automotive and pedestrian safety and convenience, traffic flow, and control;
2. Provision of off-street parking and loading areas where required, with particular attention to the items in division (C)(2)(c)1. above, and the economic, noise, and odor effects of the special use on adjoining properties in the area;
3. Adequate and proper utilities, with reference to locations, availability, and compatibility;
4. Buffering, with reference to type, location, and dimensions;
5. Signs, if any, and proposed exterior lighting, with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;
6. Playgrounds, open spaces, yards, landscaping, access ways, pedestrian ways, with reference to location, size, and suitability;
7. Buildings and structures, with reference to location, size, and use;
8. Hours of operation, with particular reference to protecting and maintaining the character of the neighborhood;
9. With the exception of Americans with Disabilities Act, being 42 U.S.C. § 12101, lighting requirements and street lighting, the design standards as outlined in § 153.047,"Site Design and Form and Mass Commercial Buildings," shall apply when exterior lighting is proposed and/or required;
10. A site plan has been submitted as required in § 153.008; and
11. The applicant/landowner must provide written consent to conditions placed on a special use permit by the Board of Adjustment.
(d) 1. The Zoning Administrator shall make periodic inspections during construction as well as a final inspection after construction is complete to determine whether the conditions imposed and agreements made in the issuance of the permit have been met as well as whether all other requirements of this chapter have been met. The Zoning Administrator shall report his or her findings to the Board of Adjustment.
2. If at any time after a special use permit has been issued, the Board of Adjustment determines that the conditions imposed and agreements made have not been or are not being fulfilled by the holder of a special use permit, the permit shall be terminated and the operation of such use discontinued.
3. If a special use permit is terminated for any reason, it may be reinstated only after reapplying for a special use permit.
(D) Variances. Upon application, when unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing of all of the following:
(1) 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;
(2) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from conditions that are common to the neighborhood or the public may not be the basis for granting a variance;
(3) 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; and
(4) 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.
(Ord. passed 10-19-1983; Ord. passed 6-8-2021)
Editor’s note:
This amendatory language was passed during a Board meeting, May 14, 2014