(a)

Establishment and composition. A board of adjustment is hereby established. Such board of adjustment shall consist of seven members and shall be appointed by the board of commissioners.

(b)

Term of office. Each member shall serve a term of three years. Vacancies shall be appointed by the board of commissioners to fulfill an unexpired term.

(Ord. No. 09-12-01, § 1, 12-1-09)

The board of commissioners shall also appoint alternate members who may be called in by the chairperson of the board of adjustment to serve in the absence of a regular board of adjustment member. Such alternate members shall also serve a three-year term. Such alternate members while attending any regular or special meeting of the board of adjustment and serving in the absence of any regular member shall have and exercise all powers and duties of such regular member so absent.

(Ord. No. 09-12-01, § 1, 12-1-09)

(a)

Members of the board of adjustment may be removed by the board of commissioners for cause, including violation of the rules stated in this section.

(b)

Faithful attendance at meetings of the board of adjustment and conscientious performance of the duties required of members of the board of adjustment shall be considered a prerequisite of continuing membership on the board of adjustment.

(c)

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 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.

(d)

No board of adjustment member shall discuss any case with any parties thereto prior to the public hearing on that case; provided however, that a member may receive and/or seek information pertaining to the case from the zoning administrator or any other member of the board of adjustment or its clerk prior to the hearing.

(e)

Members of the board of adjustment shall not express individual opinions on the proper judgment of any case prior to its determination on that case.

(f)

No board of adjustment member shall accept any gift, whether in the form of a service, a loan, a thing of value, or a promise, from any person, firm, or corporation that, in the member's knowledge, is interested directly or indirectly in any manner whatsoever in business dealings with the county.

(g)

No board of adjustment member shall accept any gift, favor, or thing of value that may tend to influence that board member in the discharge of duties.

(h)

No board of adjustment member shall grant any improper favor, service, or thing of value in the discharge of duties.

(Ord. No. 09-12-01, § 1, 12-1-09)

The board of adjustment shall annually elect a chairperson and a vice-chairperson from among its members. The chairperson, or in his absence the vice-chairperson, may administer oaths and request the attendance of witnesses in accordance with G.S. 160D-406. The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact, and also keep records of its examinations and other official actions. The board of adjustment shall make reference to the comprehensive land use plan, specifically the section titled "Directing Growth and Development/Topographic Constraints" in their formal decisions.

(Ord. No. 09-12-01, § 1, 12-1-09; Ord. No. 14-01-01A, § 2, 3-4-14; Ord. No. 21-05-06, § 1(Exh. A), 5-4-21)

(a)

Monthly; special; notice of meetings; according to state law. The board of adjustment shall hold regular monthly meetings at a specified time and place. Special meetings of the board of adjustment may be called at any time by the chairperson or by request of three or more members of the board of adjustment. At least 48 hours' written notice of the time and place of meeting shall be given, by the chairperson, to each member of the board of adjustment. All board of adjustment meetings are to be held in accordance with G.S. 143-318.9 et seq., commonly referred to as the Open Meeting Law.

(b)

Cancellation of meetings. Whenever there are no appeals, applications for special uses or variances, or other business for the board of adjustment, or whenever so many regular and alternate members notify the zoning administrator of their 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.

(c)

Quorum. A quorum shall consist of four members of the board of adjustment, but the board of adjustment shall not pass upon an application for a variance when there are less than six members present.

(d)

Voting. All regular members may vote on any issue unless they have disqualified themselves for one or more of the reasons listed in section 78-618. The required vote to decide appeals and applications shall be as provided in subsection 78-623(d). In all other matters, the vote of a majority of the members present and voting shall decide issues before the board of adjustment. For purposes of this article, 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 supermajority if there are no qualified alternates available to take the place of such members.

(e)

Subpoenas. The board of adjustment may subpoena witnesses and compel the production of evidence. If a person fails or refuses to obey a subpoena issued pursuant to this article, the board of adjustment 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. No testimony of any witness before the board of adjustment pursuant to a subpoena issued in exercise of the power conferred by this article may be used against the witness in the trial of any civil or criminal action other than a prosecution for false swearing committed on the examination. Any person, while under oath during a proceeding before the board of adjustment, who willfully swears falsely is guilty of a Class 1 misdemeanor.

(f)

Application. The applicant must file their application for a hearing with the zoning administrator, who shall act as clerk to the board of adjustment in receiving this notice. All applications shall be submitted at least 30 days prior to the date the application is to be heard. All applications shall be made on the form specified for that purpose, and all information required on the form shall be complete before an application shall be considered as having been filed.

(Ord. No. 09-12-01, § 1, 12-1-09; Ord. No. 16-04-13, § 2(Exh. A), 4-5-16; Ord. No. 21-05-06, § 1(Exh. A), 5-4-21)

The powers and duties of the board of adjustment shall be as follows:

(1)

Interpretation. The board of adjustment shall interpret zoning maps and pass upon disputed questions of lot lines or district boundary lines and any other questions of interpretation that may arise in the administration of this article.

(2)

Administrative review. The board of adjustment shall hear and decide appeals from any order, requirement, decision or determination made by the zoning administrator in the enforcement of this article, as provided in section 78-603 as well as appeals and requests for variances pursuant to any chapter or article of the Code of Ordinances for Buncombe County indicating that such appeals or requests for variances shall be heard by the board of adjustment. Such appeals and requests for variances shall be conducted in accordance with section 78-623, Appeals and applications, below. Further, in all cases in which requests for variances are heard by the board of adjustment references to this article or chapter shall be deemed to be references to such chapter or article from which the appeal or request for variance is made, as appropriate, and references to appeals under this article or chapter shall be deemed to be references to requests for variances, as appropriate. The concurring vote of four-fifths of the members of the board of adjustment shall be necessary to grant any variance. A majority vote of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of the zoning administrator, or to decide in favor of the applicant any matter which it is required to pass under this article or to effect any variation in this article.

(3)

Special uses. The board of adjustment shall grant in particular cases and subject to appropriate conditions and safeguards, permits for special uses as authorized in division 6 of this article set forth as special uses under the various use districts. The board of adjustment shall follow the requirements and procedures outlined in division 6 prior to issuance of a special use permit.

(4)

Variances. When unnecessary hardships would result from carrying out the strict letter of the zoning ordinance, the board of adjustment shall vary any of the provisions of the zoning ordinance upon a showing of all of the following:

a.

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.

b.

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.

c.

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.

d.

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.

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. In granting a variance, the board of adjustment shall make findings that the requirements of this article have been met. The board of adjustment shall make a finding, and written notice of the decision shall be prepared as prescribed in subsection 78-623(d). In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this article. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this article and punishable as described under section 78-583.

Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this subsection.

A nonconforming use of neighboring land, structures or buildings in the same district, or permitted uses of land, structures or buildings in other districts will not be considered grounds for the issuance of a variance.

(Ord. No. 09-12-01, § 1, 12-1-09; Ord. No. 10-05-09, § 1, 5-18-10; Ord. No. 14-02-01, § 2, 2-4-14; Ord. No. 21-05-06, § 1(Exh. A), 5-4-21)

(a)

Purpose. The purpose of this section is to implement the provisions of G.S. 160D-108.1 pursuant to which a statutory zoning vested right is established upon the approval of a site-specific development plan.

(b)

Establishment of a zoning vested right.

(1)

A zoning vested right shall be deemed established upon the valid approval, or special approval, by the board of adjustment of a site specific development plan, following notice and public hearing.

(2)

The board of adjustment may approve a site specific development plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, and welfare.

(3)

Notwithstanding subsections (1) and (2) of this section, approval of a site specific development plan with the condition that a variance be obtained shall not confer a zoning vested right unless and until the necessary variance is obtained.

(4)

A site specific development plan shall be deemed approved upon the effective date of the board of adjustment's action relating thereto.

(5)

The establishment of a zoning vested right shall not preclude the application of overlay zoning that imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations that are general in nature and are applicable to all property subject to land use regulations by the county, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new or amended regulations shall become effective with respect to property that is subject to a site specific development plan upon the expiration or termination of the vested right in accordance with subsection (e) below.

(6)

A zoning vested right is not a personal right, but shall attach to and run with the applicable property. After approval of a site specific development plan, all successors to the original landowner shall be entitled to exercise such right while applicable.

(c)

Approval procedures and approval authority.

(1)

Except as otherwise provided in this section, an application for site specific development plan approval shall be processed in accordance with the procedures established by ordinance and shall be considered by the board of adjustment for the specific type of zoning or land use permit or approval for which application is made.

(2)

Notwithstanding the provisions of subsection (c)(1) above, if the authority to issue a particular zoning or land use permit or approval has been delegated by ordinance to a board, committee or administrative official other than the board of commissioners, board of adjustment or other planning agency designated to perform any or all of the duties of a board of adjustment, in order to obtain a zoning vested right, the applicant must request in writing at the time of application that the application be considered and acted on by the approval authority, following notice and a public hearing as provided in G.S. ch. 160D.

(3)

In order for a zoning vested right to be established upon approval of a site specific development plan, the applicant must indicate at the time of application on a form to be provided by the county, that a zoning vested right is being sought.

(4)

Each map, plat, site plan or other document evidencing a site specific development plan shall contain the following notation: "Approval of this plan establishes a zoning vested right under G.S. 160D-108.1. Unless terminated at an earlier date, the zoning vested right shall be valid until (date)."

(5)

Following approval or special approval of a site specific development plan, nothing in this article shall exempt such a plan from subsequent reviews and approvals to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with the original approval.

(6)

Nothing in this article shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval or this article.

(d)

Duration.

(1)

A zoning vested right that has been vested as provided in this section shall remain vested for a period of two years unless specifically and unambiguously provided otherwise pursuant to subsection (2) below. This vesting shall not be extended by any amendments or modifications to a site specific development plan unless expressly provided by the board of adjustment at the time the amendment or modification is approved.

(2)

Notwithstanding the provisions in subsection (1) above, the board of adjustment may provide that rights shall be vested for a period exceeding two years but not exceeding five years where warranted in light of all relevant circumstances, including, but not limited to, the size of the development, the level of investment, the need for or desirability of the development, economic cycles, and market conditions. These determinations shall be in the sound discretion of the board of adjustment at the time the site specific development plan is approved.

(3)

Upon issuance of a building permit, the expiration provisions of G.S. 160D-1111 and the revocation provisions of G.S. 160D-1115 shall apply, except that a building permit shall not expire or be revoked because of the running of time while a zoning vested right under this section is outstanding.

(e)

Termination. A zoning right that has been vested as provided in this article shall terminate:

(1)

At the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed;

(2)

With the written consent of the affected landowner;

(3)

Upon findings by the county board of commissioners, by ordinance after notice and a public hearing, that natural or manmade hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the site specific development plan;

(4)

Upon payment to the affected landowner of compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consultant's fees incurred after approval by the county, together with interest thereon at the legal rate until paid. Compensation shall not include any diminution in the value of the property which is caused by such action;

(5)

Upon findings by the county board of commissioners, by ordinance after notice and a hearing, that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations which made a difference in the approval by the board of adjustment of the site specific development plan; or

(6)

Upon the enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the site specific development plan, in which case the board of adjustment may modify the affected provisions, upon a finding that the change in state or federal law has a fundamental effect on the plan, by ordinance after notice and a hearing.

(f)

Limitations. Nothing in this article is intended or shall be deemed to create any vested right other than those established pursuant to G.S. 160D-108.

(g)

Repealer. In the event that G.S. 160D-108.1 is repealed, this section shall be deemed repealed and the provisions hereof no longer effective.

(Ord. No. 09-12-01, § 1, 12-1-09; Ord. No. 14-02-01, § 2, 2-4-14; Ord. No. 17-06-09, §§ 1, 2, 6-6-17; Ord. No. 21-05-06, § 1(Exh. A), 5-4-21)

(a)

Appeals and hearings. The board of adjustment shall hear and decide all appeals from any order, requirement, decision, or determination made by the zoning administrator as well as appeals and requests for variances pursuant to any chapter or article of the Code of Ordinances for Buncombe County indicating that such appeals or requests for variances shall be heard by the board of adjustment, in which cases the requests for variances shall be treated as and may be referred to as appeals as set forth herein. In deciding appeals, it may hear both those based upon an allegedly improper or erroneous interpretation of this article and those based upon alleged hardship resulting from strict interpretation of this article.

(b)

Procedure for filing appeals. All statute of limitations and procedures for filing an appeal to the board of adjustment are set forth in G.S. 160D-406 or as amended.

(c)

Hearings. All board of adjustment hearings shall be conducted in accordance with G.S. 160D-406 or as amended.

(d)

Decisions. All board of adjustment decisions shall be made in accordance with G.S. 160D-406 or as amended.

(e)

Filing of decisions. Decisions of the board of adjustment are effective upon filing the written decision with the zoning administrator or his/her designee following delivery of such decision 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. The person required to provide notice of the decision shall certify that proper notice has been made.

(f)

Expiration of approval. Unless otherwise specified, an order or decision of the board of adjustment granting a special use permit or variance shall expire if a building permit or certificate of occupancy for such use is not obtained within two years from the date of the signed order.

(Ord. No. 09-12-01, § 1, 12-1-09; Ord. No. 10-05-09, § 1, 5-18-10; Ord. No. 11-04-15, § 1, 4-19-11; Ord. No. 14-02-01, § 2, 2-4-14; Ord. No. 16-04-13, § 2(Exh. A), 4-5-16; Ord. No. 16-11-03, § 2, 11-1-16; Ord. No. 21-05-06, § 1(Exh. A), 5-4-21)

Appeals from the board of adjustment may be taken to the courts pursuant to G.S. 160D-406.

(Ord. No. 09-12-01, § 1, 12-1-09; Ord. No. 18-05-06, § 2, 5-1-18; Ord. No. 21-05-06, § 1(Exh. A), 5-4-21)