(A) (1) Creation. A Board of Adjustment is hereby created as provided in G.S. § 160A-388. The Board shall consist of seven members; five regular members and two alternate members. Four of the regular members and one of the alternate members shall be residents of the town and shall be appointed by the Town Board. One regular member and one alternate member shall be residents of the extraterritorial jurisdiction and shall be appointed by the Rowan County Board of Commissioners. The terms for regular members and alternate members shall be three years, except the terms may be staggered so as to insure continuity of experience on the Board. All members, including alternate members while attending any meeting of the Board and serving on behalf of any regular member, shall have equal rights and privileges in all matters, as provided in G.S. § 160A-388(a).
(2) Vacancies shall be filled for the unexpired term only. Members may be removed for cause by the Town Board or Board of Commissioners upon written charges after a public hearing.
(3) The Board of Adjustment members and the Planning Board members are the same.
(4) 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 object is raised to a member’s participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection, as provided in G.S. § 160A-388(e)(2).
(B) (1) The Board shall have the powers listed below:
(a) To hear and decide appeals where it is alleged that there is error in any order, requirement, decision or determination made by the Zoning Enforcement Officer;
(b) To hear and decide applications for decisions on conditional and temporary use permits; and
(c) To authorize, upon appeal in specific cases, a variance from the terms of this chapter that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in undue hardship and so that the spirit of this chapter will be observed and substantial justice done.
(2) 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 Zoning Enforcement Officer or to decide in favor of the applicant any matter upon which it is required to pass under this chapter or to effect any variance authorized. 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 four-fifths majority if there are no qualified alternates available to serve on their behalf. Active members absent from the meeting, if otherwise qualified to participate, shall be counted toward membership of the Board, even when no alternate is available to serve in their place, as provided in G.S. § 160A-388(e).
(3) The Board shall not grant a variance, or issue a conditional use permit or a temporary use permit until a public hearing is held. Notice of the public hearing shall be posted on the property for which the petition is sought and in a local newspaper at least ten days prior to the public hearing. This legal notice shall describe the request and appear at least once weekly for two consecutive weeks.
(C) Consideration of proposed variance. No change in permitted uses may be authorized by variance. Appropriate conditions, which must be reasonably related to the condition or circumstance that gives rise to the need for a variance, may be imposed on any approval issued by the Board, as provided in G.S. § 160A-388(d). The Board shall not grant a variance until a public hearing is held. Before a variance is granted, the following finds must have been demonstrated:
(1) There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. This finding shall be based upon the following five subfindings:
(a) If the property owner complies with the provisions of the ordinance, he or she can secure no reasonable return from, or make no reasonable use of, his or her property.
(b) The hardship results from the application of the ordinance.
(c) The hardship is suffered by the applicant’s property.
(d) The hardship is not the result of the applicant’s own action.
(e) The hardship is peculiar to the applicant’s property.
(2) The variance is in harmony with the general purpose and intent of this chapter and preserves its spirit.
(3) The granting of the variance secures the public safety and welfare and does substantial justice.
(4) The requested variance is a minimum one that will make possible the reasonable use of the land and structures.
(5) The reasons set forth in the application justify the granting of the variance.
(D) (1) The Zoning Board of Adjustment has the power and duty to grant, in particular cases and subject to appropriate conditions and safeguards, permits for conditional uses as authorized by this chapter and set forth as conditional uses under the various use districts. The Board shall not grant a conditional use permit until a public hearing is held. The Board shall not grant a conditional use permit unless and until:
(a) A written application for a conditional use permit is submitted; and
(b) Notice of the public hearing is posted on the property for which the conditional use permit is sought and in a local newspaper at least ten days prior to the public hearing, describing the request and appearing at least once weekly for two consecutive weeks.
(c) The conditional use permit is reviewed by the Project Review Committee per § 155.146 once a complete conditional use permit application has been submitted to the Town Planner. The Project Review Committee shall have up to 30 days after submission of a complete application to make a recommendation. The public hearing shall be conducted as scheduled without a recommendation if a recommendation is not produced by that time.
(2) No conditional use permit shall be approved by the Board of Adjustment unless the following findings are made concerning the proposed conditional use:
(a) The use or development is located, designed, and proposed to be operated so as to maintain or promote the public health, safety and general welfare;
(b) The use or development complies with all regulations and standards of this chapter;
(c) The use or development will not adversely impact surrounding property;
(d) The granting of the permit would not violate the spirit or intent of this chapter or of the zoning district in which it is located.
(e) For all developments that are located in the CC commercial overlay district and are subject to the issuance of a conditional use permit, finding the use or development is in architectural harmony with the surrounding land uses must also be made in the affirmative prior to the issuance of the conditional use permit.
(E) (1) Temporary use permits can be issued by the Board of Adjustment for manufactured homes in all districts except the floodplain district, where they will be used for temporary office purposes during the construction of any permanent building or for temporary classrooms for public schools.
(2) (a) Temporary use permits can be issued by the Board of Adjustment for manufactured homes in all districts except the floodplain district, where they will be used for temporary office purposes during the construction of any permanent building. Temporary use permits may be issued for a period of six months, and may be renewed for one additional six-month period provided that the hardship continues to exist.
(b) Temporary use permits can also be issued by the Board of Adjustment for temporary classrooms for public schools during the planned construction of a permanent addition or building. These permits may be issued for a period of one year, and may be renewed for two additional annual periods provided that the hardship continues to exist. In no case shall such permit be extended past a three-year period.
(c) Application for renewal of a temporary use permit shall be made 30 days prior to the expiration date of the permit. All applications shall be made to the Zoning Enforcement Officer and in turn shall be reviewed by the Board of Adjustment to determine relative need. All applications must be accompanied by plans for the permanent construction as well as a proposed timetable for its completion. Any manufactured home permitted as an accessory use on a temporary basis shall be removed by 12:00 a.m. on the day of the expiration of the temporary use permit.
(3) Any manufactured home permitted as an accessory use on a temporary basis shall be removed by 12:00 a.m. on the day of the expiration of the temporary use permit.
(F) (1) Any person aggrieved by any decision of the Board of Adjustment, any taxpayer or any officer, department, board or bureau of the town may, within 30 days after the filing of the decision of the Board of Adjustment, but not thereafter, present to a court of competent jurisdiction a petition for a writ of certiorari, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of illegality. Thereupon the decision of the Board shall be subject to review as provided by law.
(2) An appeal from the decision of the Zoning Enforcement Officer may be taken to the Board of Adjustment by any person aggrieved or by any officer, department, board or commission of the town affected by the decision. The appeal shall be made in writing to the Board and to the Zoning Enforcement Officer specifying the grounds therefor. The Zoning Enforcement Officer shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
(3) An appeal stays all proceedings in furtherance of the action appealed, unless the officer from whom the appeal is taken certifies to the Board after the notice of appeal has been filed with him or her, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property. In this case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of record on application of notice of the officer from whom the appeal is taken and upon due cause shown. The Board shall fix a reasonable time for hearing the appeal and give notice thereof to the parties and shall decide the same within a reasonable time. At the hearing, any party may appear in person, by agent or by attorney.
(`94 Code, App. C, Art. III, § 3) (Am. Ord. 96-15, passed 11-12-96; Am. Ord. 01-05, passed 4-10-01; Am. Ord. 01-16, passed 12-11-01; Am. Ord. 03-05, passed 4-8-03; Am. Ord. 03-06, passed 4-8-03; Am. Ord. 05-05, passed 10-11-05; Am. Ord. 06-13, passed 11-14-06; Am. Ord. 06-16, passed 2-13-07; Am. Ord. 16-13, passed 12-13-16)