(A) Established. There is hereby established a Board of Adjustment for the city, subject to the terms and conditions of the UDO as specified. The Board shall hereinafter be referred to as the “Board of Adjustment”.
(B) Authority.
(1) As an appointed, quasi-judicial body, the Board of Adjustment hears and decides appeals, special use permits, variance requests, errors and omissions, and requests for interpretations from the code of ordinances as authorized by G.S. §§ 160D-302 and 160D-705
(2) The Board of Adjustment may subpoena witnesses and compel the production of evidence. If a person fails or refuses to obey a subpoena issued by the Board of Adjustment, the Board of Adjustment may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.
(C) Power and duties. The Board of Adjustment shall carry out the duties outlined in Chapter 159. Specifically, the Board of Adjustment shall hear and decide:
(1) Appeals from any order, decision, requirement or interpretation made by the Zoning Administrator or Building Inspector;
(2) Applications for general variances, or applications for variances from the requirements of Chapters 155 through 158 (use regulations, development standards, environmental regulations, design and performance regulations);
(3) Applications for special use permits;
(4) Questions involving interpretations of the zoning map as defined in Chapter 154, including disputed district boundary lines and lot lines;
(5) Applications (upon appeal) for variances from the provisions set forth in Chapter 161, including enlargement, increase or extension of a nonconforming use;
(6) Correct errors and omissions made by the Zoning Administrator and/or Building Inspector that will vary the intent of this UDO; and
(7) Any other matter the Board is required to act upon by any other city ordinance; and
(8) In considering the matters in divisions (C)(1) through (7) above, the Board of Adjustment shall act in its quasi-judicial capacity.
(D) Composition/terms. The Board of Adjustment shall consist of five regular members and three alternates.
(1) Four of the regular members and two alternates shall reside within the city limits and shall be appointed by the Board of Commissioners for initial terms of three years. The other one regular member and one alternate shall reside within the extraterritorial jurisdiction of the city and shall be appointed by the Craven County Board of Commissioners for initial terms of three years. Upon expiration of the term of each extraterritorial member, a successor extraterritorial member shall be appointed only if the remaining total number of extraterritorial members on the Board of Adjustment is less than the number of extraterritorial members required by G.S. § 160D-307. If the remaining total number of extraterritorial members on the Board of Adjustment is equal to or greater than the number of extraterritorial members required by G.S. § 160D-307, then the Board of Commissioners shall appoint a successor who resides within the city limits. However, at least one regular member and at least one alternate member of the Board of Adjustment shall be extraterritorial members. The total number of extraterritorial members shall be evaluated annually and following any extension of the extraterritorial jurisdiction of the city to ensure proportionate representation based on population for residents of the extraterritorial area as required by G.S. § 160D- 307. Successor extraterritorial members shall be appointed by the County Board of Commissioners for terms of three years or less to create staggered terms, and other successor members shall be appointed by the Board of Commissioners for terms of three years or less to create staggered terms, to the end that thereafter the terms of all members shall not expire at the same time.
(2) All members of the Board of Adjustment shall serve without compensation. Vacancies occurring for reasons other than expiration of terms shall be filled as they occur for the period of the unexpired term by the Board of Commissioners for the area within the city limits and by the County Board of Commissioners for the area outside of the city limits, but within the extraterritorial jurisdiction.
(3) Extraterritorial members shall have equal rights, privileges and duties with the other members of the Board of Adjustment regardless whether the matters at issue arise within the city or within its extraterritorial area.
(4) Alternate members who reside within the city limits shall serve only in the absence of regular members who reside within the city limits, and alternate members who reside in the extraterritorial area of the city shall serve only in the absence of regular members who reside within the extraterritorial area of the city.
(5) Members of the Board present at the hearing of an appeal or application but who are not sitting on the five-member panel shall not participate in the interrogation of applicants or witnesses, nor shall they deliberate or comment upon the appeal or application or any questions raised thereby.
(6) In the event the Craven County Board of Commissioners fails to make the appointments provided for in this section within 90 days after receipt of a resolution from the City Board of Commissioners, the City Board of Commissioners may thereupon make the appointments.
(7) Any member of the Board of Adjustment shall be removed for cause (including, but not limited to, neglect of duty, malfeasance, misconduct or failure to faithfully attend meetings) by the Board of Commissioners upon written charge and after a public hearing.
(E) Officers. The Board of Adjustment annually shall by majority vote of its membership (excluding vacant seats), elect one of its members to serve as Chair and preside over the Board’s meetings and one member to serve as Vice Chair. The Board of Adjustment shall annually appoint a Secretary, who may be an employee of the city or a member of the Board, and the other subordinates as may be authorized by the Board of Commissioners. The persons so designated shall serve in these capacities for terms of one year or until their successors are elected. Nothing herein shall be interpreted so as to forbid the officers from being elected to succeed themselves. Officer vacancies may be filled for the unexpired terms only by a majority vote of the Board membership (excluding vacant seats). The Chair or any member temporarily acting as Chair may administer oaths to witnesses coming before the Board. The Chair and Vice Chair of the Board of Adjustment may take part in all deliberations and may vote on all issues.
(F) Meetings and procedures. The Board of Adjustment shall formulate, adopt and operate under rules of procedure consistent with this chapter and G.S. § 160D-308. Meetings of the Board shall be held at the call of the Chairperson and at the other times as the Board may determine. The Chairperson, or in his or her absence the Vice Chair or acting Chairperson, may administer the oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. Evidentiary hearings shall be conducted in compliance with the requirements of this chapter and notice of the hearings shall be provided in accordance with this chapter. The Board shall keep written minutes of its proceedings, showing the vote, indicating the facts and also keep public records of its examination and any other official action.
(G) Quorum. A quorum is necessary for the Board of Adjustment to take official action. A quorum shall consist of five members of the Board and for which one of the five members must be a member from the city’s extraterritorial jurisdiction. Each appeal or application to the Board shall be deliberated and voted upon by five members of the Board and, in the absence of a regular member, alternate members whose terms of office have the earliest expiration date shall fill the remaining seats on the five member panel in the order of the expiration dates, and where two or more of the members terms of office shall expire on the same date, then the order of priority for sitting on the panel shall be determined, as between or among those members, by the alphabetical order of their surnames, but in no case shall more than five members of the Board deliberate and vote upon any appeal or application. A member who has withdrawn from the meeting without being excused as provided in division (H) below shall be counted as present for purposes of determining whether a quorum is present.
(H) Voting. The concurring vote of four-fifths of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the administrative officer, or to decide in favor of the applicant any matter upon which it is required to pass under any ordinance or to grant any variance. 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 super-majority if there are no qualified alternates available to take the place of the members. All other actions of the Board shall be taken by majority vote, a quorum being present.
(1) Once a member is physically present at a Board meeting, any subsequent failure to vote shall be recorded as an affirmative vote unless the member has been excused in accordance with division (H)(2) below or has been allowed to withdraw from the meeting in accordance with division (H)(3) below.
(2) A member may be excused from voting on a particular issue by majority vote of the remaining members present under the following circumstances:
(a) If the member has a direct financial interest in the outcome of the matter at issue;
(b) If the matter at issue involves the member’s own official conduct;
(c) If participation in the matter might violate the letter or spirit of a member’s code of professional responsibility; or
(d) If a member has a close familial or financial relationship with the applicant or the adjacent property owners so that the member cannot reasonably be expected to exercise sound judgment in the public interest.
(3) A member may be allowed to withdraw from the entire remainder of a meeting by majority vote of the remaining members present for any good and sufficient reason other than the member’s desire to avoid voting on matters to be considered at that meeting.
(4) A motion to allow a member to be excused from voting or excused from the remainder of the meeting is in order only if made by or at the initiative of the member directly affected.
(5) A roll call vote shall be taken for each motion.
(I) Right to an impartial decision maker. Pursuant to the requirements of G.S. § 160D-109(d), a member of the 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 conflicts 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 and that member does not recues himself or herself, the remaining members shall by majority vote rule on the objection.
(Ord. passed 7-25-2011; Ord. 21-O-04, passed 6-28-2021)