Caswell Beach City Zoning Code
BOARD OF
ADJUSTMENT
§ 153.155 BOARD TO BE GOVERNED BY STATE LAW AND ZONING CODE.
The Zoning Board of Adjustment shall be governed by the terms of G.S. Ch. 160D and by the zoning code of the town. The Board shall follow statutory quasi-judicial procedures in determining any quasi-judicial decision in accordance with § 160D-406.
(Ord. passed 8-25-94; Am. Res. passed 4-8-10; Am. Ord. 2014-001-O, passed 4-10-14; Am. Ord. passed - -)
§ 153.156 COMPOSITION OF BOARD.
(A) Chairman. A Chairman shall be appointed by the Mayor in accordance with the zoning code. His term of office shall be one year and until his successor is appointed beginning on July 1, and he shall be eligible for re-appointment. The Chairman shall decide on all points of order and procedure, subject to these rules, unless directed otherwise by a majority of the Board in session at the time. The Chairman shall appoint any committees found necessary to investigate any matters before the Board.
(B) Vice Chairman. A Vice Chairman shall be elected by the Board from among its regular members in the same manner and for the same term as the Chairman. He shall serve as acting Chairman in the Chairman's absence, and at such times he shall have the same powers and duties as the Chairman.
(C) Secretary-Clerk. A Secretary-Clerk shall be appointed by the Chairman of the Board, either from within its membership or from outside, to hold office during the terms of the Chairman and/or until a successor secretary has been appointed. The Secretary shall be eligible for reappointment. The Secretary, subject to the direction of the Chairman and the Board, shall keep all records, shall conduct all correspondence of the Board, shall arrange for all public notices required to be given, shall notify members of pending meetings and their agenda, shall notify parties to cases before the Board of its decision on such cases and shall generally supervise the clerical work of the Board. The Secretary shall keep the minutes of every Board meeting in a permanent volume. The minutes shall show the record of all important facts pertaining to each meeting and hearing, every resolution acted on by the Board, and all votes of members of the Board on any resolution of or on the final determination of any question, indicating the names of members who are absent or fail to vote. If the secretary is chosen from outside the Board's membership, he shall not be eligible to vote on any matter.
(D) Board members. The Board shall consist of five members who shall be residents of the town, appointed by the Mayor and Board of Commissioners. The term of the office of the members of the Board shall be for three years. Vacancies shall be filled for the unexpired term only. Members shall be removed for cause by the Board of Commissioners upon written charges and after public hearing. The members of the Board shall receive no compensation for their services.
(Ord. passed 8-25-94; Am. Res. passed 4-8-10; Am. Ord. passed - -)
§ 153.157 ALTERNATE MEMBERS.
(A) Alternate members of the Board shall be appointed for three year terms at the time for appointment of regular members, provided, however, that in the case of the first appointment of alternate members, the appointment shall be for terms which shall expire at the next time when the term of any regular member expires. Alternate members shall be called on to attend only those meetings and hearings at which one or more regular members are absent or are unable to participate in hearing a case because of financial or other interest. Regular members, on receiving notice of a special meeting that they cannot attend or on learning that they will be unable to participate in a particular case, shall give prompt notice to the Board Secretary that they are unable to attend or to participate. On receiving such notice, the Secretary shall, by the most expeditious means, notify an alternate member to attend. Assignments shall be rotated among the alternate members. At any meeting that they are called on to attend, alternate members shall have the powers and duties as regular members.
(B) Except at the election of officers, at no times shall more than five members participate officially in any meeting or hearing.
(Ord. passed 8-25-94; Am. Res. passed 4-8-10)
§ 153.158 RULES OF CONDUCT.
(A) Members of the Board may be removed for cause, including violation of the rules stated in divisions (B) through (F).
(B) Faithful attendance at all Board meetings and conscientious performance of the duties required of Board members shall considered a prerequisite of continuing membership on the Board.
(C) No Board member shall take part in the hearing, consideration, or determination of any case in which they have a direct substantial financial interest.
(D) No Board member shall discuss any case with any parties thereto before the public hearing on the 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 before the hearing.
(E) No Board member shall vote on any matter that decides an application or appeal unless he has attended the public hearing on that application or appeal.
(F) Members of the Board shall not express individual opinions on the proper judgement of any case with any parties thereto before that case is determined. Violation of this rule shall be cause for dismissal from the Board.
(G) No member shall participate in or vote on any matter where they have a fixed opinion on a case prior to the hearing.
(Ord. passed 8-25-94; Am. Res. passed 4-8-10)
§ 153.159 MEETINGS.
(A) Regular meetings. Meetings of the Board may be held on the fourth Thursday of the month at the Town Hall, 6:30 p.m., provided that meetings may be held at any other convenient place in the town if the Chairman so directs before the meeting so long as the meeting notice requirements established by statute are followed.
(B) Special meetings. The Chairman may call special meetings of the Board at any time when there is business or cases to be decided by the BOA. At least 48 hours written notice of the time and place of special meetings shall be given, by either the Secretary or the Chairman, to each member of the Board.
(C) Cancellation of meetings. If there are no appeals, applications for variances, or other business from the Board, or if so many regular and alternate members notify the Secretary that they cannot attend that a quorum will not be available, the Chairman may dispense with a regular meeting by giving written or oral notice to all members not less than 24 hours before the time set for the meeting.
(D) Quorum. A quorum shall consist of five BOA members, including alternates serving in lieu of regular members who are absent, excused or recused.
(E) Voting. All regular members may vote on any issue unless they have disqualified themselves for one or more of the reasons listed in § 153.158. The required vote to decide variance applications shall be four-fifths as provided in § 153.160. In all others matters the vote of a majority of the members present and voting shall decide issues before the Board. Vacant seats due to absences and those members recused from voting shall not be considered in the calculation of required votes if there are no qualified alternates.
(F) Conduct of meetings. All meetings shall be open to the public. The order of business at regular meetings shall be as follows.
(1) Call to order;
(2) Approval of minutes of the previous meeting;
(3) Hearing of cases;
(4) Reports of committees;
(5) Unfinished business;
(6) New business:
(7) Consideration and determination of cases heard.
(Ord. passed 8-25-94; Am. Res. passed 4-8-10; Am. Ord. 2014-001-O, passed 4-10-14; Am. Ord. passed - -)
§ 153.160 APPEALS; HEARINGS; REQUEST FOR VARIANCE OR SPECIAL USE PERMIT; DECISIONS.
(A) Types of appeals. The Board of Adjustment shall hear and decide all appeals from and review any order, requirements, decision, or determination made by the Zoning Administrator. The officer making the determination shall give written notice to the owner of the property that is the subject of the determination and to the party who sought the determination, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail. The notice shall be delivered to the last address listed for the owner of the affected property on the county tax abstract and to the address provided in the application or request for a determination if the party seeking the determination is different from the owner. The official who made the decision (or his/her successor if no longer employed) shall appear as a witness in the appeal. It shall also hear and decide all matters referred to it or on which the zoning code requires it to pass. In deciding appeals the Board may hear both those based on an allegedly improper or erroneous interpretation of the code and those based on alleged hardship resulting from strict interpretation of the code. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the Board of Adjustment and any subsequent appeal in accordance with G.S. § 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the official who made the decision certifies to the board after notice of appeal has been filed that, because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or, because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings are not stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the Board shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations, the appellant or town may request and the Board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
(B) Procedure for filing appeals. No appeal shall be heard by the Board of Adjustment unless a complete application for an appeal hearing is filed within 30 days after the interested party or parties receive notice of the final order, requirement, decision, or determination by the Zoning Administrator. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. § 160D-403(b) by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service. The applicant must file his application for a hearing with the Town Clerk, who shall act as clerk for the Board in receiving this notice. All applications shall be made on the form furnished for that purpose, and all information required thereon shall be completed before an appeal may be considered as having been filed. All applications shall be accompanied by a filing fee according to the town’s schedule of fees maintained in the office of the Town Clerk.
(C) Quasi-judicial hearing.
(1) Time. After a complete application for a quasi-judicial decision is received by the Town Clerk, the Board Chairman shall schedule the time for a hearing, which shall be a regular or special meeting within 45 days from the receipt of a complete application. For special use permits, once a complete application has been received, the application shall be placed on the agenda for the next regularly scheduled BOC meeting following 45 days from receipt of the complete application. The BOC shall follow the quasi-judication hearing process as described herein for the special use permit application.
(2) Quasi-judicial hearing notice.
(a) The notice of the quasi-judicial evidentiary hearing 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 as the Building Inspector shall direct. 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. 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. The Board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.
(b) Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal, and the date, time and place of the hearing.
(c) In addition, a notice shall be placed on the door of the Town Hall, and adjacent neighbors shall be notified. ADJACENT shall be defined as the owner of that parcel of land in question shown on the county tax listing, and the owners of all parcels of land abutting that parcel of land as shown on the county tax listing and parcels within 100 feet.
(d) The site subject to the hearing shall be posted at least ten days, but not more than 25 days, prior to the date of the hearing. The posted notice shall provide reasonable notice to interested persons. The notice shall be posted on the site that is subject of the hearing or an adjacent street or highway right-of-way.
(3) Conduct of the hearing.
(a) Any party may appear in person, by agent, or by attorney at the hearing. The order of business for each hearing shall be as follows.
1. The Chairman or such person as he shall direct, shall give a preliminary statement of the case noting that the proceedings are quasi-judicial and therefore shall be conducted in the manner of a court of law with sworn testimony presented as evidence. All who wish to speak shall first be placed under oath and the opposing party may cross examine them as set forth in (b) below;
2. The applicant shall present the evidence and arguments in support of his application;
3. Persons opposed to granting the application shall present the evidence and arguments against the application;
4. Both sides shall be permitted to present rebuttals to opposing evidence and arguments;
5. The Chairman shall summarize the evidence that 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 when evidence is not reasonably available under such rules to show relevant facts. In such cases facts may be shown by the most reliable and substantial evidence available. The Board may view the premises before the hearing, but the facts indicated by such inspection shall be disclosed at the hearing and made part of the record.
(c) All witnesses before the Board, including the applicant(s), shall be placed under oath, and the opposing party may cross-examine them. Officials of the court (attorneys) not wishing to be sworn must understand their testimony must be treated not as evidence on which to base a decision but merely as arguments.
(4) Rehearings. An application for a rehearing may be made in the same manner as an application for an original hearing. Evidence in support of the application shall initially be limited to what 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 Board shall deny the application for rehearing it, from the record, it finds that there has been no substantial change in facts, evidence, or conditions. If the Board finds that a change has occurred, it shall thereupon treat the request in the same manner as any other application.
(D) Decisions.
(1) Time. Written decisions by the Board including findings of fact shall be made and presented to the applicant no later than 30 days from the time of the hearing.
(2) Form.
(a) The Board’s final decision shall be shown in record of the case as entered in the Board’s minutes and signed by the Secretary and the Chairman on approval of the minutes by the Board. Such record shall show the reasons for the determinations, with a summary of the evidence introduced, the conclusions of law, and the findings of fact made by the Board. No variance shall be granted for a specific use. When a variance is granted, the record shall state in detail any exceptional difficulty to 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. When a special use permit is granted, the record shall state in detail any facts that support findings required to be made before such permit is issued.
(b) The Chair or his or her designee shall rule on objections and motions to quash subpoenas. Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board. The Board Chair shall rule on any objections, and the Chair's rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. § 160D-1402
(c) The record shall state in detail what, if any, conditions and safeguards the Board imposes in connection with granting of a variance or special use permit. A separate record of decision in each case shall be prepared, filed in the Town Clerk’s office and furnished to the parties as specified in subsection (5) of this division.
(3) Expiration of permits. Unless otherwise specified, any order or decision of the Board granting a special use permit shall expire if the applicant does not obtain a building permit or certificate of occupancy for such use within 12 months from the date of the decision.
(4) Voting at hearings. The concurring vote of four- fifths of the Board members shall be necessary to grant a variance from the ordinance provisions. All other decisions shall be made by a majority vote. However, vacant seats and disqualified members are not considered in calculating four-fifths votes if there are no qualified alternates.
(5) A variance may only be issued when the following findings of fact are made by the Board of Adjustment. The burden of proving these conditions exist is on the applicant.
(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.
(6) Notice and public records of decisions. The Secretary shall give written notice of the decision in the case to the appellant and/or applicant and to every aggrieved party who has filed a written request for such notice with the Secretary or the Chairman of the Board when the hearing is held. Such notice may be delivered either by personal service or by registered mail or certified mail, or return receipt requested. A copy of the decision shall also be filed in the Town Clerk’s office. The decision shall be a public record, available for inspection at all reasonable times.
(Ord. passed 8-25-94; Am. Ord. passed 1-13-05; Am. Res. passed 4-8- 10; Am. Ord. 2014-001-O, passed 4-10-14; Am. Ord. passed - -)
§ 153.161 AMENDMENTS.
The foregoing rules of procedure for the BOA may not be amended except by proceedings set forth in G.S. Ch. 160D.
(Ord. passed 8-25-94; Am. Res. passed 4-8-10; Am. Ord. 2014-001-O, passed 4-10-14; Am. Ord. passed - -)