Board of Adjustment
The Board of Adjustment, unlike our other Advisory Boards, statutorily serves as a quasi-judicial body. Its purpose is to review and rule on permitted variances regarding zoning matters. Its members serve three-year terms.
The Board shall have six (6) regular members and three (3) alternates. Five regular members and two (2) alternates shall be citizens of the town appointed by the Town Council. One regular member and 1 alternate shall be residents of the extraterritorial area and shall be appointed by the County Commissioners in accordance with G.S. § 160A-362.
(B) (1) All appointments shall be for a period of 3 years, per G.S. § 160A-388, and shall commence on July 1 of the year of appointment.
(2) Vacancies shall be filled for the unexpired term only.
(C) All members of the Board shall have equal rights, privileges and duties with regards to all matters within the town and its extraterritorial area.
(D) Members of the Board may be removed for cause by the Town Council upon written charges and after public hearing.
(E) The members of the Board may be compensated according to a schedule adopted by the Town Council from time to time (§ 15.02.175).
Board of Adjustment Members
Rick Fisher - ETJ Alternate
David Zinni- Town Alternate
* Extra-territorial Jurisdiction (ETJ) Representative
Powers and Duties of Board of Adjustment (§ 15.02.175)
POWERS AND DUTIES (§ 15.02.175)
The Board of Adjustment shall have the following powers and duties:
(A) Administrative Review. To hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with enforcement of this Chapter.
(B) Interpretation. To interpret the terms of this Chapter and zoning maps and to pass upon disputed questions of lot lines or district boundary lines and similar questions as they arise in the administration of this Chapter.
(C) Special Exception Permits. To hear and decide special and conditional use permits in accordance with standards and procedures specified in this Chapter. Reasonable and appropriate conditions may be imposed upon these permits.
(D) Exceptions from the application requirements for Business District Areas zoned BD-PD in heavily trafficked areas. To hear and decide on requests for exceptions from the design guidelines and performance standards required under §15.02.048.
(E) Subpoena. To subpoena witnesses and compel the production of evidence, through the chair, or in the chair's absence anyone acting as the chair, 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 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. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the Board 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
(F) Oath. 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, while under oath during a proceeding before the Board, willfully swears falsely is guilty of a Class 1 misdemeanor.
(G)Variance – In General. When unnecessary hardships would result from carrying out the strict letter of this Chapter, the Board may vary any of the provisions herein upon a showing of all of the following:
(1) Unnecessary hardship would result from the strict application of this Chapter. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
(2) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.
(3) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.
(4) The requested variance is consistent with the spirit, purpose, and intent of this Chapter, such that public safety is secured, and substantial justice is achieved.
Provided, however, no change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.
(H) Variance – Federal Fair Housing Act. Notwithstanding the provisions of subparagraph (g) above, the Board may provide for a variance under the Federal Fair Housing Act upon the following:
- Application Requirements; Determination of Completeness.
(A) Persons Authorized to File Applications. An application for a reasonable accommodation may be filed only by the owner of the land affected by the reasonable accommodation; an agent, lessee, or contract purchaser specifically authorized by the owner to file such application; or any unit of government that is not the owner of the lot but proposes to acquire the lot by purchase, gift, or condemnation.
(B) Pre-Application Conference. Before filing an application for a reasonable accommodation, the applicant may request a pre-application conference with the Zoning Administrator.
(C) Application Filing. An application for a reasonable accommodation shall be filed with the Zoning Administrator. No filing fee is required for such application. Once the application is complete, the Zoning Administrator shall schedule the application for consideration at a hearing before the Board, and shall transmit to the Board all applications and other records pertaining to such reasonable accommodation prior to the hearing on the application.
- Approval Criteria.
The Board shall grant a reasonable accommodation to any provision of this Chapter if it finds by a greater weight of the evidence that the proposed reasonable accommodation is determined to be both reasonable and necessary, in accordance with the following:
(A) “Reasonable” An accommodation will be determined to be reasonable if it would not undermine the legitimate purposes and effects of existing planning regulations, and if it will not impose significant financial and administrative burdens upon the Town and/or constitute a substantial or fundamental alteration of this Chapter’s provisions; and
(B) “Necessary” An accommodation will be determined to be necessary if it would provide direct or meaningful therapeutic amelioration of the effects of the particular disability or handicap, and would afford an equal opportunity to enjoy and use housing in residential areas in the Town.
- Effect of Approval or Denial.
(A) After the Board approves a reasonable accommodation, the applicant shall follow the normal procedures set forth in this Chapter, and any other applicable ordinance, for approval of any permits, certificates, and other approvals required in order to proceed with development or use of the property. All orders, decisions, determinations, and interpretations made by administrative officers under those procedures shall be consistent with the reasonable accommodation granted by the Board.
(B) The Board shall refuse to hear a reasonable accommodation request that has been previously denied, unless it finds that there have been substantial changes in the conditions or circumstances relating to the matter.
Failure of an applicant to apply for a building permit or any other required development permit, and commence uninterrupted construction or action with regard to a variance granted hereunder within one (1) year of receiving approval of the reasonable accommodation shall automatically render the variance null and void.
(i) Decision. As used in this Chapter, the term "decision" includes any final and binding order, requirement, or determination. The Board shall follow quasi-judicial procedures when deciding appeals and requests for variances and special and conditional use permits. The Board shall hear and decide all matters upon which it is required to pass under any statute or this Ordinance.