(A) Appointment and terms of the members of the Board of Adjustment. The members of the Planning Board shall serve the dual role as members of the Planning Board, and members of the Board of Adjustment; therefor, the appointment and term of the officers of the Board of Adjustment shall be identical to that of the Planning Board.
(B) Meetings of the Board of Adjustment.
(1) The Board of Adjustment shall meet regularly on the fourth Tuesday of each month.
(2) The Board of Adjustment shall conduct its meetings in accordance with the quasi-judicial procedures set forth in this chapter.
(3) All meetings of the Board of Adjustment shall be open to the public, and whenever feasible, the agenda for each meeting shall be made available in advance of the meeting.
(C) Quorum.
(1) (a) A quorum for the Board of Adjustment shall consist of the number of members equal to four-fifths of the regular membership (excluding vacant seats).
(b) A quorum is necessary for the Board of Adjustment to take official action.
(2) The Board of Adjustment shall conduct its meetings in accordance with the quasi-judicial procedures set forth in this chapter.
(D) Voting.
(1) The concurring vote of a majority of the regular Board of Adjustment membership (excluding vacant seats) shall be necessary to:
(a) Reverse any order, requirement, decision, or determination of the Land Use Administrator;
(b) Decide in favor of an applicant regarding any matter which is required to pass under this subchapter (including the issuance of a special use permit); and
(c) Take any other actions, except variances. The concurring vote four-fifths of the regular Board of Adjustment membership (excluding vacant seats) shall be necessary to grant any variance.
(2) Once a member is physically present at a meeting, any subsequent failure to vote shall be recorded as an affirmative vote unless the member has been excused in accordance with division (D)(3) below, or has been allowed to withdraw from the meeting in accordance with division (D)(4) below.
(3) (a) A member may be excused (also called “recused”) from voting on a particular issue by majority vote of the remaining members present when the members participation in or votes on any matter would violate affected persons’ constitutional rights to an impartial decision maker.
(b) If an objection is raised to a member’s participation and that member does not recuse himself, herself, or themself, the remaining members shall by majority vote rule on the objection.
(c) Impermissible violations of due process include, but are not limited to when:
1. The member has a direct financial interest in the outcome of the matter at issue;
2. The matter at issue involves the member’s own official conduct;
3. Participation in the matter might violate the letter or spirit of a member’s code of professional responsibility;
4. A member has such close familial, business, or other ties to the applicant that the member cannot reasonably be expected to exercise sound judgment in the public interest;
5. A member has a fixed opinion prior to hearing the matter that is not susceptible to change; or
6. A member has undisclosed ex parte communications. (EX PARTE COMMUNICATION means a communication with only one party or side in a disputed case.)
(4) 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.
(5) 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.
(6) A roll call vote shall be taken upon the request of any member.
(E) Board of Adjustment officers. The officers of the Board of Adjustment shall be the same as the officers of the Planning Board.
(F) Powers and duties of Board of Adjustment.
(1) The Board of Adjustment shall hear and decide:
(a) Appeals from any order, decision, requirement, or interpretation made by the Land Use Administrator (as provided in § 152.115);
(b) Applications for special use permits (as provided in § 152.040);
(c) Applications for variances (as provided in § 152.116);
(d) Questions involving interpretations of the zoning map, including disputed district boundary lines and lot lines (as provided in § 152.118);
(e) Applications for special exception permits (as provided in § 152.117);
(f) Any other matter that the Board of Adjustment is required to act upon by any other town ordinance; and
(g) Whether to subpoena witnesses.
1. The Chairperson may subpoena witnesses. The Chairperson shall issue requested subpoenas he, she, or they determines to 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 Board of Adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this division (F)(1)(g), the Board or the party seeking the subpoena 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. (See § 152.115.)
2. Other parties may request a subpoena. To request issuance of a subpoena, persons with standing under § 152.115 may make a written request to the Chairperson explaining why it is necessary for certain witnesses or evidence to be compelled.
(2) The Board of Adjustment may adopt rules and regulations governing its procedures and operations provided that said rules and regulations are not inconsistent with the provisions of this chapter.
(Ord. passed 12-20-2001)