Banner Elk City Zoning Code
BOARD OF
ADJUSTMENT
§ 152.260 ESTABLISHMENT.
A Board of Adjustment is hereby established. Said Board shall consist of five regular members; three regular members of the Board shall be citizens of the town and shall be appointed by the Town Council, and two regular members shall be appointed by the Board of County Commissioners and shall be a citizen of the extraterritorial area outside the town limits. As the terms of all members expire, new appointments for three years shall be made. The Town Council shall also appoint two alternate members for the municipalities’ regular members, and the Board of Commissioners shall appoint one alternate member for the extraterritorial members. The alternate members of the Board shall be required to attend all meetings and hearings and shall be called upon to participate in the hearing of a case where a regular member is absent or excused because of financial or other interest. At any meeting or hearing in which they are called upon to participate, alternate members shall have the same powers and duties as regular members.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1100)
§ 152.261 VACANCIES.
The Town Council shall appoint members to fill vacancies of the town’s members and the County Commissioners shall appoint members to fill vacancies of the extraterritorial area’s members.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1101)
§ 152.262 RIGHTS OF ALL BOARD MEMBERS.
All Board of Adjustment members, including extraterritorial members, shall have equal rights, privileges and duties both within the town and extraterritorial area.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1102)
§ 152.263 RULES OF CONDUCT.
(A) Members of the Board may be removed for cause, including violation of the rules stated below.
(B) All members should attend Board of Adjustment meetings regularly. If a member misses more than three consecutive meetings, he or she may be replaced at the recommendation of the Board of Adjustment, and the discretion of the Town Council.
(C) No Board member shall take part in the hearing, consideration and determination of any case in which he or she is personally or financially interested. PERSONALLY INTERESTED is defined to mean that a Board member’s family either owns, has a financial interest in or has property abutting property being considered by the Board.
(D) No Board member shall vote on any matter deciding an application for appeal unless he or she shall have attended the public hearing on that application or appeal.
(E) No Board member shall discuss any case with any parties thereto prior to the public hearing on that case; provided, however, that, members may receive and/or seek information pertaining to the case from any other member of the Board, its Secretary or Clerk prior to the hearing.
(F) Members of the Board will not express individual opinions on the proper judgment of any case with any parties thereto prior to its determination of that case. Violation of this rule shall be cause for dismissal from the Board.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1103)
§ 152.264 BOARD MEETINGS.
Meetings of the Board may be called at any time by the Chairperson. At least 48 hours’ written notice of the time and the place of meetings shall be given by the Secretary or by the Chairperson to each member of the Board. All Board meetings are to be held in accordance with G.S. Ch. 143, Art. 33C, commonly referred to as the Open Meeting Law.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1104)
§ 152.265 CANCELLATION OF MEETINGS.
Whenever there are no appeals, applications for conditional uses or variances, or other business for the Board, or whenever so many regular and alternate members notify the Secretary of inability to attend that a quorum will not be available, the Chairperson may dispense with a meeting by giving written or oral notice to all members not less than 12 hours prior to the time set for the meeting.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1105)
§ 152.266 QUORUM.
A quorum shall consist of three members of the Board, but the Board shall not pass upon any question relating to an appeal from a decision, order, requirement or determination of the Zoning Administrator, or an application for a variance or conditional use permit when there are less than four members present.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1106)
§ 152.267 VOTING.
All members shall vote on any issue unless they have disqualified themselves prior to the meeting or hearing for one or more of the reasons listed in § 152.263 of this chapter. The required vote to decide appeals and applications shall be as provided in § 152.270(D)(4) of this chapter, and shall not be reduced by disqualification. In all other matters, the vote of a majority of the members present and voting shall decide issues before the Board.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1107)
§ 152.268 CONDUCT OF MEETINGS.
(A) All meetings shall be open to the public.
(B) The order of business at regular meetings shall be as follows:
(1) Roll call;
(2) Reading of minutes of previous meetings;
(3) Hearing of cases;
(4) Reports of committees;
(5) Unfinished business;
(6) New business; and
(7) Consideration and determination of cases heard.
(Ord. passed 3-14-2005; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1108)
§ 152.269 POWERS AND DUTIES.
The Board of Adjustment shall have the following powers and duties:
(A) Administrative review. To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Zoning Administrator in the enforcement of this chapter;
(B) Conditional uses. To hear and decide only such conditional uses as the Board of Adjustments is specifically authorized to pass on under the terms of this chapter. To decide such questions as are involved in determining whether a conditional use should be granted. To grant conditional uses with such conditions and safeguards as are appropriate under this chapter, or to deny conditional uses when not in harmony with the intent of this chapter. A conditional use may be granted by the Board of Adjustment only after making the following findings:
(1) That the Board of Adjustment is empowered under a specific section of this chapter to grant the conditional use and that the granting of the conditional use will not adversely affect the public interest;
(2) Before any conditional use shall be issued, the Board shall make written findings certifying compliance with all specific rules governing the individual conditional use and that satisfactory provisions and arrangements have been made concerning the following wherever applicable:
(a) Ingress and egress to property and proposed structures, with particular reference to automobile and pedestrian safety, convenience, traffic flow and control, and access in case of fire or catastrophe;
(b) Off-street parking and loading areas where required with particular attention to the items in division (B)(2)(a) above and to the economic, noise, glare or odor effects of the conditional use on adjoining properties and generally in the district;
(c) Refuse and service areas, with particular reference to the items in divisions (B)(2)(a) and (B)(2)(b) above;
(d) Utilities, with reference to location, availability, compatibility and compliance with the town’s Water and Sewer Ordinance. All impact charges must be paid prior to the issuance of a conditional use permit;
(e) Screening and buffering, with reference to type, dimensions and character;
(f) Signs, if any, and proposed exterior lighting, with reference to glare, traffic safety, economic effect and compatibility and harmony with properties in the district;
(g) Required yards and other open space; and
(h) General compatibility with adjacent property and other property in the district.
(3) The Board of Adjustment shall request from the town’s Planning Board a review and recommendations of the conditional use relative to the following considerations:
(a) Relation of the conditional use to applicable elements of the planning program; and
(b) Relation of the conditional use to applicable elements of the architectural review guidelines.
(C) Variances. When unnecessary hardships would result from carrying out the strict letter of this chapter, the town’s Board of Adjustments shall vary any of the provisions of this chapter upon a showing of the following:
(1) Unnecessary hardship would result from the strict application of the ordinance. 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 a basis for granting a variance;
(3) The hardship did not result from action 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 the ordinance, such that public safety is secured, and substantial justice is achieved; and
(5) No change in permitted uses may be authorized by a variance. Appropriate conditions may be imposed on any variance; provided that, the conditions are reasonably related to the variance.
(D) Appeals from the Board of Adjustment. Any person or persons jointly or severally aggrieved
by any decision of the Board, or any taxpayer, or any officer, department, board or bureau of the town may, within 30 days after the filing of the decision in the office of the Board, but not thereafter, present to a court of competent jurisdiction a petition duly verified, setting forth that such decision is illegal, in whole or in part, specifying the ground of illegality, whereupon such decision of said Board shall be subject to review by certiorari as provided by law.
(E) Fees for variances, appeals and conditional uses. A fee shall be paid according to § 19 of the Fee Schedule for each application for a variance, appeal or conditional use to cover the necessary administrative and advertising costs.
(Ord. passed 3-14-2005; Ord. passed 10-14-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1109)
§ 152.270 APPEALS AND APPLICATIONS.
(A) Types of appeals. The Board shall hear and decide all appeals from and review any order, requirement, decision or determination made by the Zoning Administrator. It shall also hear and decide all matters referred to it or upon which it is required to pass by this chapter. In deciding appeals, it may hear both those based upon an allegedly improper or erroneous interpretation of this chapter and those based upon alleged hardship resulting from strict interpretation of this chapter.
(B) Procedure for filing appeals. No appeal shall be heard by the Board unless notice thereof is filed within 30 days after the interested party or parties receive notice of the order, requirement, decision or determination by the Zoning Administrator. The applicant must file his or her application for a hearing with the Zoning Administrator, who shall act as clerk for the Board in receiving this notice. All applications shall be made upon the form specified by the town for that purpose, and all information required thereon shall be complete before an appeal shall be considered as having been filed.
(C) Hearings.
(1) Time. After receipt of notice of appeal, the Board Chairperson shall schedule the time for a hearing, which shall be at a regular or special meeting within 36 days from the filing of such notice of appeal.
(2) Notice. The Board shall give public notice of the hearing in a newspaper published in the county by advertisement published at least five days prior to the date of the hearing. The Board shall mail notices of the hearing to the parties to the action appealed from, and to such other persons as the Zoning Administrator shall direct, at least five days prior to the hearing. 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.
(3) Conduct of hearing.
(a) Any party may appear in person or by agent or by attorney at the hearing. The order of business for hearing shall be as follows:
1. The Chairperson, or such person as he or she shall direct, shall give a preliminary statement of the case;
2. The applicant shall present the argument in support of his or her application;
3. Persons opposed to granting the application shall present the argument against the application;
4. Both sides will be permitted to present rebuttals to opposing testimony; and
5. The Chairperson shall summarize the evidence which has been presented, giving the parties opportunity to make objections or corrections.
(b) Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law. The Board may view the premises before arriving at a decision. All witnesses before the Board shall be placed under oath and the opposing party may cross-examine them.
(4) Re-hearings. An application for a rehearing may be made in the same manner as provided for an original hearing. Evidence in support of the application shall initially be limited to that which is necessary to enable the Board to determine whether there has been a substantial change in the facts, evidence or conditions in the case. The application for rehearing shall be denied by the Board if from the record it finds that there has been no substantial change in facts, evidence or conditions. If the Board finds that there has been a change, it shall thereupon treat the request in the same manner as any other application.
(D) Decisions.
(1) Time. Decisions by the Board shall be made not more than 30 days from the time of hearing.
(2) Form. Written notice of the decision in a case shall be given to the applicant by the Secretary as soon as practicable after the case is decided by certified or registered mail. Also, written notice shall be given to owners of the subject property (if not the applicant) and to other persons who have made a written request for such notice. The final decision of the Board shall be shown in the record of the case as entered in the minutes of the Board and signed by the Secretary and the Chairperson upon approval of the minutes by the Board. Such record shall show the reasons for the determination, with a summary of the evidence introduced and the findings of fact made by the Board. Where a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the appeal was based and which the Board finds to exist. The decision may reverse or affirm, wholly or partly or modify the order, requirement, decision or determination appealed from. Where conditional use is granted, the record shall state in detail any facts supporting findings required to be made prior to the issuance of such permit. The record shall state in detail what, if any, conditions and safeguards are imposed by the Board in connection with the granting of a variance or a conditional use.
(3) Expiration of permits. Unless otherwise provided by law, any order or decision of the Board granting conditional use or variance shall expire if the applicant does not sign acknowledging acceptance of the permit within 60 days of such order or decision. The issuance of such permits is also subject to the time limitations set forth in § 152.242 of this chapter.
(4) Voting at hearings. 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 purposes of the section, 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 no qualified alternates available to take the place of such members.
(5) Public record of decisions. The decisions of the Board, as filed in its minutes, shall be a public record, available for inspection at all reasonable times.
(E) Intervention. Any individual or organization who wishes to intervene as a party to any matter before the Board of Adjustment shall complete an application to intervene upon a form which may be obtained from the Zoning Administrator. Such application shall state the proposed intervener’s interest relating to the property or hearing, any practical impairment of the protection of the interest if not allowed to intervene as a party, and whether there is inadequate representation of that interest by existing parties. Such application shall be filed with the Zoning Administrator at least 24 hours prior to the scheduled time for the hearing of the matter before the Board. The Board may waive the deadline for the filing of this application upon good cause being shown for the failure to timely file to intervene. Upon a hearing on the motion to intervene, the Board of Adjustments shall determine whether intervention is appropriate.
(Ord. passed 3-14-2005; Ord. passed 10-14-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 1110; Ord. passed 8-12-2019)