§ 2.4 BOARD OF ADJUSTMENT.

   2.4.1   Authority and establishment. The Town Board of Adjustment is hereby established pursuant to the authority of G.S. § 160D-302.

   2.4.2   Membership. The Board of Adjustment shall consist of seven regular members, who shall consist of residents of the town appointed by the Town Council and residents of the extraterritorial jurisdiction appointed by the County Board of Commissioners proportionate to their population, as provided in G.S. § 160D-307. Three alternate members shall be appointed to the Board of Adjustment to serve in the case of the absence or temporary disqualification of one or more regular Board members. All members shall have the same rights, privileges, and duties regardless of whether matters to be decided arise within the city or within the extraterritorial (ETJ) area.

   2.4.3   Quorum. No final action shall be taken on any matter unless a quorum of the Board is present. For all matters except the granting of a variance, a quorum shall consist of four members of the Board. A quorum for granting a variance, floodplain variance, or watershed variance shall be determined as set out in division 2.4.4(C) below.

   2.4.4   Powers and duties. In the application and enforcement of this ordinance, the Board of Adjustment has the following powers and duties.

      (A)   Final approval authority. The Board of Adjustment is the approving authority for the following:

         (1)   Variances;

         (2)   Watershed variances;

         (3)   Floodplain variances; and

         (4)   Special use permits.

      (B)   Appeals. The Board of Adjustment shall hear and decide on the following appeals:

         (1)   Appeals of administrative decisions;

         (2)   Appeals of denials for minor subdivision approval;

         (3)   Appeals of denials for site plan approval;

         (4)   Appeals of denials for the issuance of a land development permit;

         (5)   Appeals of denials for the issuance of a stormwater management permit;

         (6)   Appeals of denials for the issuance of a floodplain development permit;

         (7)   Appeals of denials for recombination plat approval; and

         (8)   Appeals from civil penalties authorized pursuant to G.S. § 143-215.6A imposed under Article 15.

      (C)   Voting. The concurring vote of four-fifths of the members of the Board shall be necessary to grant a variance including watershed variances and floodplain variances from the provisions of the ordinance. 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 section, 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 supermajority if there are no qualified alternates available to take the place of such members.

(G.S. § 160D-406(i))

   2.4.5   Avoiding conflicts of interest. Pursuant to G.S. § 160D-109, a member of the Board of Adjustment or any other body exercising the functions of a Board of Adjustment 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: a member having a fixed opinion prior to hearing the matter that is not susceptible to change; 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 at or prior to the hearing or vote on a particular matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection.

(Ord. A-21-02, passed 6-3-2021)