(a) Membership. The lake structure appeals board shall consist of five regular and three alternate members to be appointed by the town council. Members of the board shall serve a term of three years, provided that terms of office may be adjusted at the time of appointment in order that terms are staggered. In filling vacancies created by resignation or other causes, a new member may be appointed to fill the unexpired term of the member so vacating. Each alternate member while attending any regular or special meeting of the board and serving in the absence of any regular members shall have and may exercise all the powers and duties of a regular member. Members shall serve without pay but may be reimbursed for any expenses incurred while representing the lake structure appeals board.
(b) Rules of conduct. Board members shall comply with the following rules of conduct. Members may be removed by the town council for cause, including violation of the rules stated in the following subsections:
(1) Faithful attendance at meetings of the board and conscientious performance of the duties required of members of the board shall be considered a prerequisite to continuing membership on the board.
(2) A board member 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. 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.
(3) No board member shall discuss any case with any parties thereto prior to the hearing on that case; provided, however, that members may receive and/or seek information pertaining to the case from the lake structure administrator, any other member of the board, or the clerk prior to the hearing.
(4) Members of the board shall not express individual opinions on the proper judgment of any case prior to its determination on that case.
(5) Members of the board shall give notice to the chairperson at least 48 hours prior to the hearing of any potential conflict of interest which he has in a particular case before the board.
(6) No board member shall vote on any matter that decides an application or appeal unless he has attended the hearing on that application or appeal.
(c) General proceedings. The board shall annually elect a chairperson and a vice-chairperson from among its regular members. A clerk shall be provided by the town; however, when necessary, the chairperson shall appoint a clerk, who may be an employee of the town, a municipal officer, or a member of the lake structure appeals board. The chairperson, or any member acting as chairperson, and the clerk, may administer oaths. The chairperson, or any member acting as the chairperson, 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 chairperson explaining why it is necessary for certain witnesses or evidence to be compelled. The chairperson shall issue requested subpoenas he determines to be relevant, reasonable in nature and scope, and not oppressive. The chairperson shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chairperson may be appealed to the full lake structure appeals board. The board shall keep minutes of its proceedings, including the names of members present and absent, a record of the vote on every question, or abstention from voting, if any, together with records of its examinations and other official actions.
(d) Meetings. The board shall hold regular monthly meetings at a specified time and place. Special meetings of the board may be called at any time by the chairperson or by request of three or more members of the board. At least 48 hours written notice of the time and place of meetings shall be given, by the chairperson, to each member of the board. All board meetings are to be held in accordance with G.S. ch. 143, art. 33C (G.S. 143-318.9 et seq.), commonly referred to as the Open Meetings Act.
(1) Cancellation of meetings. Whenever there are no appeals, applications, or variances, or other business for the board, or whenever so many members notify the clerk of inability to attend that a quorum will not be available, the chairperson may dispense with a meeting by giving written or oral notice to all members.
(2) Quorum. A quorum shall consist of three members of the board, but the board shall not pass upon any questions relating to an appeal from a decision or determination of the lake structure administrator, or an application for a variance or decktop accessory structure when there are less than four members present.
(3) Voting. All regular members may vote on any issue unless they have disqualified themselves for one or more of the reasons listed in subsection (b)(2) of this section. The required vote to decide appeals and applications shall be as provided in subsection (h) of this section and shall not be reduced by any disqualification. In all other matters the vote of a majority of the members present and voting shall decide issues before the board.
(e) Powers and duties. The powers and duties of the lake structure appeals board shall be as follows:
(1) Administrative appeals. To hear and decide appeals from any decision or determination made by the lake structure administrator in the enforcement of this article.
(2) Variances. Upon application, the lake structure appeals board may authorize in specific cases such variance from the terms of this article as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this article will, in an individual case, result in practical difficulty or unnecessary hardship. The variance may be permitted as long as the spirit of the chapter shall be observed, public safety and welfare secured, and substantial justice done. The lake structure appeals board shall not have authority to grant a variance when to do so would permit a use of land, building or structure which is not permitted within the applicable zoning district. In judging an application for a variance, the lake structure appeals board shall be guided by the following:
a. There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography that are not applicable to other lands or structures in the same district.
b. Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the district in which the property is located.
c. A literal interpretation of the provisions of this article would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located.
d. The requested variance will be in harmony with the purpose and intent of this article and will not be injurious to the neighborhood or to the general welfare.
e. The special circumstances are not the result of the actions of the applicant.
f. The variance is the minimum necessary for the proposed use of the land, building or structure.
g. A nonconforming use of neighboring land, structures or buildings in the same district, and permitted uses of land, structures or buildings in other districts, will not be considered grounds for the issuance of a variance.
In granting any variance, the lake structure appeals board may prescribe appropriate conditions and safeguards in conformity with this article. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this article and punishable under section 6-65.
(3) Other matters. The board shall hear any other matters specified in this article.
(f) Procedure for filing appeals and applications. No appeal shall be heard by the board unless written notice thereof is filed within 30 days after the interested party or parties receive the decision or determination by the lake structure administrator. Applications for variances or for other matters governed by this article may be filed at any time. Both appeals and applications shall be filed with the lake structure administrator, who shall act as clerk for the board in receiving this notice. All appeals and applications shall be made upon the form specified for that purpose, and all information required on the form shall be complete before an appeal or application shall be considered as having been filed. Once appeals and applications have been filed with the lake structure administrator, the lake structure administrator shall notify the chairperson of the board that such appeals or applications have been received.
(g) Hearings. Hearings before the board shall be governed by the provisions contained herein.
(1) Time. After receipt of notice of an appeal or a variance, the chairperson shall schedule a time for a hearing which shall be within 41 days from the filing of such notice of appeal or application.
(2) Notice of hearing. Notice of hearings conducted pursuant to this section shall be mailed to the person or entity whose appeal or application 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 these regulations. In the absence of evidence to the contrary, the town 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 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.
(3) Conduct of hearing. Any party may appear in person or by agent or by attorney at the hearing. The order of business for the hearing shall be as follows:
a. The chairperson, or such person as he shall direct, shall give a preliminary statement of the case.
b. The applicant shall present the argument in support of his appeal or application.
c. Persons supporting or opposed to the appeal or application shall present arguments for or against the application or appeal.
d. Both sides will be permitted to present rebuttals to opposing testimony.
e. Witnesses may be called and factual evidence may be submitted, but the board shall not be limited to consideration of only such evidence as would be admissible in a court of law. The board may view the premises before arriving at a decision. All witnesses before the board shall be placed under oath. Attorneys representing any party may cross examine any witness.
(h) Decisions. A decision by the board shall be made within 35 days from the date of hearing. The 35-day period shall begin on the date the public hearing ends.
(1) Form. The decision shall be reduced to writing and reflect the board's determination of contested facts, if any, and their application to applicable standards. The written decision shall be signed by the chairperson or other duly authorized member of the board. The decision of the board shall be effective upon filing such decision with the clerk to the board. The clerk shall see that the decision is delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, any entity granted party status at the hearing, and to any person who has submitted a written request for a copy prior to the date the decision becomes effective, and shall certify that proper notice has been made.
(2) Voting. The concurring vote of four-fifths of the members of the board entitled to vote on a matter shall be necessary to reverse any decision or determination of the lake structure administrator, or to grant a variance or to approve any other request under this subsection.
(3) Public record of decisions. The decisions of the board, as filed in its minutes, shall be a public record, available for inspection at all reasonable times.
(i) Appeals of decisions of the board. Decisions of the lake structure appeals board shall be final unless appealed by the applicant or an affected property owner to the town council within 30 days of such decision. The town council shall hold a hearing on the record within 45 days of the appeal, and council's decision shall be final.
(j) Fees for applications and appeals. The fee for an application for a variance or other matter regulated by this article, or for an administrative appeal shall be determined by resolution of the town council and shall be payable to the town.
(Code 1989, § 94.16; Ord. of 5-12-2009; Ord. of 11-12-2013)