A. Appointment and Terms of Board of Adjustment.
1. Generally. The Board of Adjustment (BOA) shall consist of seven (7) regular members.
a. Six (6) members of the BOA shall be residents of the city and shall be appointed by City Council; one member shall be a resident of the extraterritorial zoning jurisdiction (ETJ). ETJ members shall be appointed in accordance with G.S. § 160D-307. Board of Adjustment members representing the extraterritorial area shall have equal rights, privileges, and duties in all matters coming under the Board’s purview.
2. Member Term. BOA members shall be appointed for three-year staggered terms expiring on December 31st.
a. Members may serve two consecutive terms.
b. Any vacancy in the membership shall be filled for the unexpired term.
c. Members may continue to serve until their successors have been appointed.
B. Rules of Procedure.
1. Generally. The BOA shall adopt rules for the transaction of its business and shall keep a record of its members’ attendance and its resolutions, discussions, findings and recommendations, which record shall be public record.
2. Meetings of the Board of Adjustment. The BOA shall adopt a regular meeting schedule.
a. In addition, the BOA may hold such special meetings as the conduct of its business may require. All meetings and hearings shall be open to the public.
3. Quorum. No official business of the BOA maybe conducted without a quorum present.
4. Participating and Voting. 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.
a. For the purposes of this subsection, 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.
b. Once a member is physically present at a BOA meeting, any subsequent failure to vote will be recorded as an affirmative vote unless the member has recused himself or herself, or been excused in accordance with the paragraph below.
c. A 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 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. For purposes of this section, a “close familial relationship” means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships. In addition, a member who was not present at the hearing at which evidence relevant to the matter at issue was taken shall not vote on the matter.
5. Board Member Attendance. Any member of the BOA who misses more than three consecutive regular meetings or more than half of the regular meetings in a calendar year shall be subject to removal and replacement by CC.
C. Powers and Duties. The BOA shall have all the powers and duties as authorized by state law, and in the manner provided for in this UDO. Generally, such power and duties shall include, but not be restricted to, the following:
1. Special Use Permits.
2. Variances.
3. Temporary Use Permit (60 Day or more).
4. Appeals.
D. Reconsideration of BOA Action.
1. Whenever the BOA disapproves an application on any basis other than the failure of the applicant to submit a complete application, such action may not be reconsidered by the respective board for a period of one year unless the applicant clearly demonstrates that:
a. Circumstances affecting the property that is the subject of the application have substantially changed; and/or
b. New information is available that could not with reasonable diligence have been presented at a previous hearing. A request to be heard on this basis must be filed with the administrator within the time period for an appeal to superior court. However, such a request does not extend the period within which an appeal must be taken.
2. Notwithstanding subsection (1), the BOA may at anytime consider anew application affecting the same property that an application has been previously denied for. A new application is one that differs in some substantial way from the one previously considered.
(Am. Ord. O-2022-70, passed 11-8-22)