(A)   A Board of Planning and Adjustment is hereby established to fulfill the duties of the town Planning Board and Board of Adjustments, and all members shall have equal rights, privileges and duties. The Board shall consist of five members. The five members shall be citizens of the town and shall be appointed by the Town Council.

   (B)   Initial terms of office shall be as follows: one member appointed for three years; two members appointed for two years; and two members appointed for one year. Upon completion of these initial terms of office, all additional appointments on the Board shall be for three-year terms.

   (C)   Any permanent vacancy in the membership shall be filled for the unexpired term of the vacancy. All members shall serve without pay, but may be reimbursed for any unusual expenses incurred while representing the Board.

(Ord., Art. VI, § 600, passed - -; Am. Ord. 2010-01, passed 3-25-2010; Am. Ord. 2010-04, passed 6-17-2010; Am. Ord. passed 4-17-2014)

   The Town Council shall also appoint two alternate members to serve on the Board of Planning and Adjustment in the absence, for any cause, of the Board’s regular members. Alternate members shall be appointed for three-year terms. The alternate members, while attending any regular or special meeting of the Board and serving in the absence of any regular member, shall have and exercise all the powers and duties of the regular member so absent. Alternate members should attend all proceedings of the Board in order to gain experience.

(Ord., Art. VI, § 601, passed - -; Am. Ord. 2010-01, passed 3-25-2010; Am. Ord. passed 4-17-2014)

   (A)   Members of the Board may be removed for cause, including violation of the rules stated below.

   (B)   Faithful attendance at meetings of the Board and conscientious performance of the duties of members of the Board shall be considered a prerequisite of continuing membership on the Board. The unexcused absence of three consecutive meetings shall be sufficient grounds for removal from the Board. The removal is subject to approval of a simple majority of a quorum as defined in § 154.044(C) below.

   (C)   No Board member shall vote on recommendations regarding any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. 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)   A member of the Board or any other body exercising quasi-judicial functions pursuant to this subchapter 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 that is not susceptible to change prior to hearing the matter, 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.

   (E)   No Board member shall vote on any specific matter unless he or she shall have attended all hearings on that matter.

   (F)   No Board member shall discuss a quasi-judicial case with any parties thereto or other Board members prior to the public hearing on that case; provided however, that members may receive and/or seek information on that case from the Zoning Administrator or any other member of the Board, its secretary or clerk prior to the hearing.

(Ord., Art. VI, § 602, passed - -; Am. Ord. 2010-01, passed 3-25-2010; Am. Ord. passed 4-17-2014)

   (A)   The Board shall annually elect a Chairperson and a Vice-Chairperson from among its members. The Chairperson shall in turn appoint a Secretary, who may be a municipal officer, an employee of the town, or a member of the Board of Planning and Adjustment. The Town Clerk or the Town Clerk’s appointee shall serve as Clerk to the Board. The Board may, at its discretion, require that the party appealing from a decision of the Zoning Administrator employ and pay for a court reporter to take and to provide to the Board a verbatim transcript of the hearing of the appeal. The Board shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating that fact, and also keep records of it examinations and other official actions.

   (B)   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 of Adjustment, willfully swears falsely is guilty of a Class 1 misdemeanor.

   (C)   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 pertinent state law 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, 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.

(Ord., Art. VI, § 603, passed - -; Am. Ord. 2010-01, passed 3-25-2010; Am. Ord. passed 4-17-2014)

   (A)   Board meetings. The Board shall hold regular monthly meetings at a specified time on the first Tuesday of each month, and at a specified place. Special meetings may be called at any time atm the request of the Chairperson or by the request of three or more Board members. At least 48 hours notice of the time and place of meetings shall be given, by the Chairperson, to each member of the Board. All Board meetings are to be held in accordance with G.S. Ch. 143, Art. 33B, commonly referred to as the Open Meeting Law.

(Ord., Art. VI, § 604, passed - -; Am. Ord. 2010-01, passed 3-25-2010; Am. Ord. passed 4-17-2014; Am. Ord. passed 2-20-2025)

      (1)   Make studies of the area within its jurisdiction and surrounding areas;

      (2)   Determine objectives to be sought in the development of the study area;

      (3)   Prepare and adopt plans for achieving these objectives;

      (4)   Develop and recommend policies, ordinances, administrative procedures, and other means for carrying out plans in a coordinated and efficient manner;

      (5)   Advise the Town Council concerning the use and amendment of means for carrying out plans;

      (6)   Exercise any functions in the administration and enforcement of various means for carrying out plans that the Council may direct;

      (7)   Perform any other related duties that the Council may direct;

      (8)   Participate in the development review process as directed by the zoning ordinance, subdivision ordinance, or any other adopted ordinance and/or regulation of the town;

      (9)   Make recommendations to the Town Council regarding the adoption of any proposed zoning and/or subdivision ordinance or amendment. Furthermore, the Board may initiate, from time to time, proposals for amendment of the zoning ordinance, zoning map or subdivision ordinance, based upon its studies and plans;

      (10)   The Board may conduct public hearings to gather information necessary for the drafting, establishment, and maintenance of plans; and

      (11)   Submit in writing to the Town Manager in May of each year, a report of its activities, and an analysis of the expenditures to date for the current fiscal year; and submit to the Town Manager for budget consideration its requested budget of funds needed for operation during the ensuing fiscal year.

   (B)   Board of Adjustment. When fulfilling its duties as the Board of Adjustment, the Board shall have the following powers and duties.

      (1)   Interpretation. To 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 chapter.

      (2)   Administrative review. To hear and decide appeals from any order, requirements, decision or determination made by the Zoning Administrator in the enforcement of this chapter as provided in § 154.046 below. The Board shall also hear and decide all matters upon which it is required to pass under any statute or ordinance that regulates land use or development.

      (3)   Special uses. To grant in particular cases and subject to appropriate conditions and safeguards, permits for special uses, as authorized in §§ 154.082 and 154.083 below, and set forth as special uses under the various use districts.

      (4)   Variances. To hear and decide variances as provided in § 154.046 below.

      The Board of Adjustment shall follow quasi-judicial procedures when deciding appeals, requests for variances and special use permits.

(Ord., Art. VI, § 605, passed - -; Am. Ord. 2010-01, passed 3-25-2010; Am. Ord. passed 4-17-2014)

   (A)   Appeals. The Board of Adjustment shall hear and decide appeals from decisions of administrative officials charged with enforcement of the zoning ordinance, and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:

      (1)   Any person who has standing under pertinent state law or the town may appeal a decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the Town Clerk. The notice of appeal shall state the grounds for the appeal.

      (2)   The official who made the decision shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.

      (3)   The owner or other party shall have 30 days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have 30 days from receipt from any source of actual or constructive notice of the decision within which to file an appeal.

      (4)   It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign, containing the words “Zoning Decision” or “Subdivision Decision”, in letters at least six inches high, and identifying the means to contact an official for information about the decision, is prominently posted on the property that is the subject of the decision, provided the sign remains on the property for at least ten days. Posting of signs is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision.

      (5)   The official who made the decision shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from is taken. The official shall also provide a copy of the record to the appellant, and to the owner of the property that is the subject of the appeal if the appellant is not the owner.

      (6)   An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from, unless the official who made the decision certifies to the Board of Adjustment 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 ordinance. In that case, enforcement proceedings shall not be 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 of Adjustment shall meet to hear the appeal within 15 days after the request is filed. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay the further review of an application for permits or permissions to use such property; in these situations, the appellant may request and the Board may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.

      (7)   Subject to the provisions of division (A)(6), the Board of Adjustment shall hear and decide the appeal within a reasonable time.

      (8)   The official who made the decision shall be present at the hearing as a witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing. The Board of Adjustment may reverse or affirm, wholly or partly, or may modify the decision appealed from, and shall make any order, requirement, decision, or determination that ought to be made. The Board shall have all the powers of the official who made the decision.

      (9)   When hearing an appeal pursuant to G.S. § 160A-400.9(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in pertinent state law.

      (10)   The parties to an appeal that has been made under this division may agree to mediation or other forms of alternative dispute resolution. A majority of the members shall be required to decide to determine an appeal made in the nature of certiorari in accordance with division (E)(1) below.

   (B)   Special use permits.

      (1)   A special use permit from the Board of Adjustment is required for all special uses. The Board of Adjustment shall hear and decide special use permits in accordance with standards and procedures specified in this section and in §§ 154.082 and 154.083, and may issue special use permits in the classes of cases or situations and in accordance with the principles, conditions, safeguards, and procedures specified herein, and may impose reasonable and appropriate conditions and safeguards upon these permits. Where appropriate, the conditions may include requirements that street and utility rights-of-way be dedicated to the public and that recreational space be provided.

      (2)   All special use permits that are granted shall run with the property or structure for which the special use permit is being sought, and not with the owner of the property or structure.

   (C)   Variances.

      (1)   Unnecessary hardship requirement. 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 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 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; and

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

      (2)   Application. When a variance is requested, the applicant shall submit a completed application for such permit.

      (3)   Quasi-judicial hearings on applications for variances. Once the Zoning Administrator is in receipt of a complete application and five copies of a complete site plan, he or she will schedule the application for a public hearing before the Board. The Zoning Administrator shall mail the notice of hearing in accordance with division (D)(2) below. The Board of Adjustment shall conduct a quasi-judicial hearing on the application, and shall allow any interested party to appear, either in person or by agent or attorney.

      (4)   Board action on applications for variances. After the quasi-judicial hearing, and on consideration of the record, the Board shall take action on the application, either (1) denying it, (2) approving it, or (3) approving it subject to one or more conditions. In granting a variance, the Board of Adjustment shall make findings that the requirements of this section have been met. Violation of the conditions shall be deemed a violation of this chapter and punishable under § 154.999 below. A concurring vote of four-fifths of the Board shall be necessary to grant a variance in accordance with division (G) below.

      (5)   Effect of approval. All variances granted shall run with the property or structure for which the variance is being sought. and not with the owner of the property or structure.

   (D)   Hearings.

      (1)   Time. After receipt of an application or a notice of appeal, the Board Chairperson shall schedule the time for a hearing, which shall be at a regular or special meeting within 31 days from the filing of the application or notice of appeal.

      (2)   Notice of hearing. Notice of hearings conducted pursuant to this section 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 zoning ordinance. 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. 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.

      (3)   Conduct of hearing. Any party may appear in person, by agent or by attorney at the hearing. The order of business for hearing shall be as follows:

         (a)    The Chairperson, or such person as he or she shall direct, shall give a preliminary statement of the case;

         (b)   The applicant shall present the argument in support of his or her application;

         (c)   Persons opposed to granting the application shall present arguments against the application;

         (d)   Both sides will be permitted to present rebuttals to opposing testimony; and

         (e)   The Chairperson will summarize the evidence that has been presented, giving the parties opportunity to make objections or corrections. Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to consideration of only 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)   Rehearings.

         (a)   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.

         (b)   The application for a 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 application for a rehearing in the same manner as any other application.

   (E)   Decisions and judicial review.

      (1)   Voting. 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 division, 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 are no qualified alternates available to take the place of such members.

      (2)   Quasi-judicial decisions. 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 decision may reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from. 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. 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 of Adjustment. 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.

      (3)   Expiration of permits. Unless otherwise specified, any order or decision of the Board in granting a variance shall expire if a building permit or certificate of occupancy for the use is not obtained by the applicant within six months from the date of the decision.

      (4)   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. In addition, and at the applicant’s expense, approved variances and special use permits shall be filed with the County Register of Deeds by the Clerk to the Board of Adjustment within one month from the date of approval.

      (5)   Judicial review. Every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari pursuant to pertinent state law. 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 (D) above. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

(Ord., Art. VI, § 606, passed - -; Am. Ord. 2010-01, passed 3-25-2010; Am. Ord. passed 4-17-2014) Penalty, see § 154.999