(A) Membership. The Zoning Board of Adjustment and Appeals shall be comprised of five members and two alternates appointed by the Town Board of Commissioners, with all members and alternates being residents from within the municipal boundaries of the town. Each member must take an oath of office before starting his or her duties.
(B) Voting requirements. 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. For the purposes of this section, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter under G.S. § 160D-109(d) 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.
(C) Rules. The Zoning Board of Adjustment and Appeals shall elect a Chair and a Vice-Chair from its members who shall serve for one year, until re-elected, or until their successors are elected. The Board shall appoint a clerk, who may be a municipal officer, an employee of the town, or a member of the Board.
(1) By-laws. The Board shall adopt by-laws in accordance with the provisions of this chapter and of G.S. § 160D-302 and G.S. § 160D-308.
(2) Meetings. Meetings of the Board shall be held either on the first Tuesday of each month, at the call of the Chair, or at such times as the Board may determine. The Chair, or in his or her absence, the Vice-Chair, may administer oaths and compel the attendance of witnesses by subpoena. All meetings of its proceedings, showing the vote of each member upon each fact; and the final disposition of appeals shall be by recorded resolution indicating the reasons of the Board therefore, all of which shall be kept as public record.
(3) Application. An application to the Board of Adjustment pursuant to the terms of this subchapter must be received by the Zoning Administrator or Town Manager at least 30 days prior to the date of a Board of Adjustment meeting in order to be scheduled for such meeting.
(4) Notice of hearings. Notice of evidentiary hearings conducted pursuant to this chapter shall be mailed to the person or entity whose appeal, application or request 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 the town’s zoning 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. For the purposes of this section, abutting property owners include those whose property is located across a right-of-way. Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal, and the time and place of the hearing. 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.
(G.S. § 160D-406(b))
(5) Member participation. A member of any Board exercising quasi-judicial functions 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. In such case, the Board member shall advise the Chair in open session after call of the matter that he or she has a conflict of interest and an alternate shall be called by the Chair to replace him or her. If no alternate is available, the seat shall be declared vacant for the purposes of the vote of the particular matter at issue. If an objection 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. No member shall accept any gift, favor or thing of value that may tend to influence the member in the discharge of duties. No member shall grant any improper favor, service or thing of value in the discharge of duties.
(6) Quasi-judicial decisions and judicial review.
(a) The Board shall determine contested facts and make its decision within a reasonable time. Every quasi-judicial decision shall be based upon competent, material and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing and reflect the Board’s determination of contested facts and their application to the applicable standards. The written decision shall be signed by the Chair or other duly authorized member of the Board. A quasi-judicial decision is effective upon filing the written decision with the clerk to the Board or such other office or official as the regulations specify. The decision of the Board shall be delivered by personal delivery, electronic mail or by first-class mail to the applicant, property owner and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.
(b) Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. § 160D-1402. A petition for review shall be filed with the clerk of superior court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with division (C)(4) above. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.
(7) Oaths. The Chair of the Board or any member acting as Chair and the clerk to the Board are authorized to administer oaths to witnesses in any matter coming before the Board. Any person who willfully swears falsely, while under oath during a proceeding before the Board of Adjustment, is guilty of a Class 1 misdemeanor.
(8) Subpoenas. The Board of Adjustment through the Chair, or in the Chair’s absence anyone acting as Chair, may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under G.S. § 160D-1402(d) may make a written request to the Chair explaining why it is necessary for certain witnesses or evidence to be compelled. The Chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The Chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the Chair may be appealed to the full Board of Adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this division (C)(8), the Board of Adjustment or the party seeking the subpoena may apply to the general court of justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.
(9) Expiration of permits. Unless otherwise specified, any order or decision of the Board granting a special use permit or a variance shall expire if the applicant does not obtain a building permit or certificate of occupancy for such use within six months from the date of the decision.
(Ord. passed 2-20-2012; Ord. passed 3-17-2014; Ord. passed - -2022)