Davie County Unincorporated
City Zoning Code
City Zoning Code
BOARD OF
ADJUSTMENT
§ 155.230 PURPOSE OF BOARD OF ADJUSTMENT.
(A) This subchapter addresses the establishment of the Board of Adjustment and those rules governing said Board. The purpose of this Board is to assist in the implementation of this subchapter with regards to appeals, change in kind of non-conforming uses, variances, and special use permits.
(B) General rules. The Zoning Board of Adjustment shall be governed by the terms of G.S. Chapter 153A, Article 18, Part 3 and G.S. § 160A-388 and by the Davie County Zoning Ordinance. All members of the Board shall thoroughly familiarize themselves with these laws.
(C) Powers and duties of the Board of Adjustment. The Zoning Board of Adjustment shall have the powers and duties listed in this section.
(D) Subpoena power.
(1) The Board of Adjustment may subpoena witnesses and compel the production of evidence.
(2) If a person fails or refuses to obey a subpoena issued pursuant to this division, 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.
(3) No testimony of any witness before the Board of Adjustment, pursuant to a subpoena issued in exercise of the power conferred by this subsection, 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.
(4) Any person who, while under oath during a proceeding before the Board of Adjustment, willfully swears falsely is guilty of a Class 1 misdemeanor.
(Ord. passed 6-1-2015)
§ 155.231 ESTABLISHMENT OF BOARD OF ADJUSTMENT.
(A) The Board of Adjustment shall consist of seven members who shall be appointed by the Board of Commissioners and who shall be residents of the county. Members shall serve overlapping terms of three years.
(B) In addition to the regular members, the Board of Commissioners may appoint two alternate members, who shall be residents of the county, each for three-year terms. The Chairman of the Board of Adjustment, or in his absence the acting chairman, may appoint the alternates to sit for any regular members in case of the absence or disqualification of any regular members. In such case the alternate members shall have the same powers and duties of the regular members they are replacing during such time. In no case, however, shall more than five regular members or combination of regular members and the alternate members be empowered to vote on any matter that comes before the Board.
(Ord. passed 6-1-2015)
§ 155.232 OFFICERS AND DUTIES.
(A) Chairman. A chairman shall be a regular member of the Board of Adjustment and elected by the majority vote of the full membership of the Board. His/Her term of office shall be one year in which he/she is eligible for re-election or his/her successor is elected, beginning July 1. The chairman shall decide upon all aspects of order and procedure, subject to these rules, unless otherwise directed by the majority of the Board in session at the time. The chairman shall appoint committees found necessary to investigate any matters before the Board.
(B) Vice chairman. A vice chairman shall be a regular member and elected in the same manner as the chairman and serve the same term. He/She shall serve as acting chairman in the absence of the chairman, and at such times he/she shall have the same powers as the chairman.
(C) Clerk. The clerk, subject to the direction of the chairman of the Board, shall keep all records, conduct all correspondence of the Board, arrange for all required public notices, notify members of the agenda and pending meetings, notify parties of cases prior to the Board making a decision on such cases, shall generally supervise the clerical work of the Board. The clerk shall keep in a permanent volume the minutes of every Board meeting. These shall indicate the names of members that were present or absent, show the record of all important facts pertaining to each meeting and hearing, every resolution acted upon by the Board, all votes of the Board members upon any resolution, deposition, or final determination of any question, indicating the names of the members voting against or failed to vote.
(D) Alternate members. Alternate members of the Board shall be called upon to attend only those meetings and hearings at which one or more regular members are absent or unable to participate in that meeting and/or hearing. Regular members, on receiving notice of a special meeting or are unable to participate in a scheduled hearing, shall promptly give notice to the secretary. The secretary shall, by most expeditious means, notify the alternate member to attend. Any meeting, which they are called upon to attend, alternate members shall have the same powers and duties as regular members. Except at the election of officers, at no time shall more than five members participate officially in any meeting or hearing.
(Ord. passed 6-1-2015)
§ 155.233 RULES OF CONDUCT FOR MEMBERS.
(A) Members of the Board may be removed for cause, including violation of the rules stated below.
(B) Faithful attendance at all meetings of the Board and conscientious performance of the duties required of members. This is a pre-requisite to continue membership of the Board.
(C) No Board member shall take part in the hearing or determination in which he/she has a financial interest, fixed opinion, undisclosed outside contact, close family tie, or close business tie.
(D) No member shall discuss any case with any parties (ex-parte contact) thereto prior to the public hearing of that case; however, members of the Board can receive and/or seek information pertaining to a case from other members, its secretary, or clerk prior to the hearing. In the case of an appeal, planning and zoning staff are a party, and the Board shall not discuss such cases with the secretary or the clerk.
(E) Members of the Board will not express individual opinions on the proper judgment of any case with any party thereto prior to its final determination.
(F) It is possible for a Board member to visit a site prior to the public hearing, however, since the Board’s decision must be based on evidence presented at the hearing, it is important for any Board member who visits a site to state at the hearing what he/she observed.
(Ord. passed 6-1-2015)
§ 155.234 MEETINGS OF THE BOARD OF ADJUSTMENT.
(A) Regular meetings. Regular meetings of the Board shall be held on the third Monday of each month at 6:00 p.m. in the Commissioners Meeting Room in the Davie County Administration Building, 123 S. Main Street, Mocksville, North Carolina. Provided that the meeting be held at any other convenient time and/or place in the county, when business needs to be acted upon; if directed by the chairman in advance of the meeting.
(B) Special meetings. Special meetings of the Board may be called at any time by the chairman. A written notice of the time and place of the special meeting shall be delivered by the clerk to each Board member at least 48 hours prior to the scheduled meeting.
(C) Cancellation of meetings. Whenever there are no appeals, applications for special use permits 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 chairman may dispense with a regular meeting by giving written or oral notice to all Board members not less than 24 hours prior to the time set for the meeting.
(D) Quorum. A quorum shall consist of three-fifths members of the Board, but the Board shall not pass upon any questions relating to an appeal from the decision, order, requirement, or determination of the zoning enforcement officer, or an application for a variance or special use permit when there are less than three members present.
(E) Voting. All regular members shall vote on each issue made in the form of a motion, unless they have disqualified themselves for one or more of the following reasons listed in § 155.233. All abstaining from voting will be counted as a “YES”. All silent votes will be counted as a “YES”. All “NO” votes shall be vocal.
(F) Order of business.
(1) Call to order;
(2) Adopt agenda;
(3) Approval of minutes from the previous meeting;
(4) Hearing of cases;
(5) Unfinished business;
(6) New business; and
(7) Adjournment.
(Ord. passed 6-1-2015)
§ 155.235 HEARINGS AND NOTICE.
(A) Hearings. An evidentiary hearing is required for each decision. The purpose of the hearing is to gather facts, not to gather opinions about the desirability or popularity of the project.
(B) Time. After receipt of a notice of application, the clerk shall schedule the time for a hearing, which shall be at a regular or special meeting within 45 days from the filing of such notice of application.
(C) Notice. The Board shall give public notice of the hearing by posting notice on the property which is subject to action. Adjoining property owners shall be notified by letter ten to 25 days prior to the hearing stating the facts concerning the public hearing. Such notice shall state the location, general nature involved in the request, and the time and location of the hearing.
(D) Conduct of hearing. The order of business for the hearing shall be as follows:
(1) The Planning staff member shall give a preliminary statement of the case.
(2) The applicant shall present facts/ evidence that support his application.
(3) Persons opposed shall present facts/evidence against the application.
(4) Both sides will have an opportunity to present a rebuttal to opposing testimony.
(5) The chairman shall summarize the evidence which has been presented, giving both parties opportunity to make objections or corrections. Witnesses may be called and evidence submitted, but the Board shall not be limited to consider such evidence to be admissible as in a court of law. The Board may view the premises before arriving at a decision. All witnesses shall be sworn in and are subject to cross-examination.
(E) Rehearing. An application for a rehearing may be made in the same manner as provided for an original meeting. 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 facts or evidence (change in federal, state, or local law, or a change in the zoning ordinance). The application for rehearing shall be denied by the Board if from the record it finds that there has not been a substantial change in fact or evidence. If the Board finds that there has been a change, then the request shall be treated in the same matter as any other application. If there is a change in conditions (different site plan or an increase or decrease in the size of the request), the case shall be considered a new and distinctive case from that of before.
(Ord. passed 6-1-2015)
§ 155.236 DECISIONS OF THE BOARD OF ADJUSTMENT.
(A) Evidence. Quality evidence must be in the hearing to support the Board’s final decision from an appeal, or application for variance or special use permit.
(1) Substantial, competent, and material facts/evidence is needed to support the Board’s findings.
(2) Hearsay. Hearsay is admissible; however, hearsay evidence cannot be the sole basis for a crucial findings of fact. Crucial findings of fact include those that are contested.
(3) Opinion testimony by expert. The Board is interested in fact not opinion, however, opinions offered by experts are an exception to this rule.
(B) Time. Decisions by the Board shall be made not more than 45 days from the time of hearing the case.
(C) Order. Written notice of the decision in a case shall be given to the applicant by the clerk in a reasonable amount of time following the decision. The final decision of the Board shall be shown on record of the case as entered into the minutes of the Board and signed by the chair or other duly authorized member of the Board. Such record shall show the reasons for the determination, with a summary of the evidence introduced and the findings of fact 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 a special use permit is granted, the record shall state in detail any facts supporting the findings required to be made prior to 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 the special use permit or variance.
(D) Expiration of permits. Unless otherwise specified, any order or decision of the Board granting a special use permit or a variance shall be perpetually binding upon the property unless subsequently changed or amended by the Board.
(E) Voting on hearings. The Board of Adjustment, by a vote of four-fifths of its members, may grant a variance from the provisions of this subchapter. A majority vote shall be required for all other matters before the Board.
(F) Public record of decision. The decisions of the Board, as filed in the minutes, shall be a public record, available for inspection at all reasonable times.
(Ord. passed 6-1-2015)
§ 155.237 STAY OF PROCEEDINGS.
An appeal stays all proceedings in furtherance of the action appealed, unless the officer from whom the appeal is taken certifies to the Board of Adjustment that by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed except by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, of notice from whom the appeal is taken and on due cause shown.
(Ord. passed 6-1-2015)
§ 155.238 CHANGE IN KIND OF NON-CONFORMING USE.
The Board may permit a non-conforming use of a building to be changed to another non-conforming use upon a finding by the Board that the new use is more in character with the uses permitted in the district than the previous use.
(Ord. passed 6-1-2015)
§ 155.239 VARIANCES.
(A) The Board may authorize variances from the terms of the subchapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this subchapter will, in an individual case, result in unnecessary hardship, so that the spirit of the subchapter shall be observed, public safety secured, and substantial justice done.
(B) In granting a variance, the Board may attach thereto such conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable in furtherance of the purpose of this subchapter. If a variance for the construction, alteration or use of property is granted, such construction, alteration or use shall be in accordance with the approved site plan. No change in permitted uses may be authorized by variance.
(C) The Board of Adjustment shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.
(D) Zoning and subdivision requirements. Any ordinance that regulates land use or development may provide for variance consistent with the provisions of this subchapter. These requirements shall apply to all regulations in the following areas:
(1) Zoning;
(2) Subdivision;
(3) Watershed; and
(D) Floodplain.
(E) The Board of Adjustment shall make the findings required below, taking into account the nature of the proposed request, the existing use of land in the vicinity and the probable effect of the proposed request upon traffic conditions in the vicinity, if applicable. No variance shall be granted unless the Board of Adjustment finds all of the following in the affirmative:
(1) That there are special circumstances or conditions affecting said property such that the strict application of the provisions of this subchapter would cause an unnecessary hardship;
(2) That the circumstances giving rise to the need for the variance are peculiar to the parcel and are not generally characteristic of other parcels in the jurisdiction of this subchapter;
(3) That the hardship suffered is not a result of the applicants or property owners own actions; and
(4) That the granting of the variance will be consistent with the spirit, purpose, and intent of the subchapter, such that the public safety is secured and substantial justice is achieved.
(Ord. passed 6-1-2015)
§ 155.240 SPECIAL USE PERMITS.
(A) The Board shall hear special use permit request to determine whether appropriate conditions and safeguards are met. In granting a Special Use Permit the Board shall make the following affirmative findings:
(1) That the special use will not materially endanger the public health or safety, if located where proposed and developed according to the plan as proposed;
(2) That the special use meets all required conditions and specifications;
(3) That the special use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and
(4) The special use will be in harmony with the area in which it is to be located and will be in general conformity with the plan of development of the county.
(5) The proposed use/project will be consistent with the Davie County Land Development Plan and/or other adopted plans and policies.
(B) In granting a special use permit, the Board may impose such additional restrictions and requirements upon such permit as it may deem necessary in order that the purpose and intent of this subchapter are served, public welfare secured and substantial justice done. If all requirements and conditions are accepted by the applicant, the Board shall authorize the issuance of the special use permit, otherwise the permit shall be denied.
(C) Any special use permit so authorized shall be perpetually binding upon the property included in such permit unless subsequently changed or amended by the Board, as provided for in this subchapter.
(D) The Board may change or amend any special use permit, after a public hearing and subject to the same consideration as provided for in this subchapter for the original issuance of special use permit.
(E) No proposal to amend or change any special use permit shall be considered within 12 months of the date of the original authorization of such permit or within 12 months of hearing of any previous proposal to amend or change any such permit unless there has been a substantial change in the conditions or circumstances on the special use permit.
(Ord. passed 6-1-2015)
§ 155.241 APPEALS FROM THE BOARD OF ADJUSTMENT.
The Board of Adjustment shall hear and decide appeals from decisions of administrative officials charged with enforcement of the zoning or unified development ordinance and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:
(A) Any person who has standing under G.S. § 160A-393(d) or the city may appeal a decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the City Clerk. The notice of appeal shall state the grounds for the appeal.
(B) 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.
(C) 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 appeal shall have 30 days from receipt from any source of actual or constructive notice of the decision within which to file an appeal.
(D) 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 10 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. Absent an ordinance provision to the contrary, posting of signs shall not be required.
(E) 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.
(F) 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 such a 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.
(G) Subject to the provisions of division (F), the Board of Adjustment shall hear and decide the appeal within a reasonable time.
(H) 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 city 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.
(I) The parties to an appeal that has been made under this subsection may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
(Ord. passed 6-1-2015)
§ 155.242 LIABILITY.
The Board of Adjustment members are generally immune from any liability for the decisions the Board makes.
(Ord. passed 6-1-2015)