Duck City Zoning Code
BOARD OF
ADJUSTMENT
§ 156.160 ESTABLISHED; COMPOSITION; TERMS; VACANCIES; REMOVAL OF MEMBERS; COMPENSATION.
(A) The Town of Duck Board of Adjustment is hereby established. The word BOARD, when used in this subchapter, shall be construed to mean the BOARD OF ADJUSTMENT.
(B) Members and alternates shall be appointed for 3 year terms or until their successors are appointed. Successors shall be appointed for terms of 3 years; except, that vacancies occurring for reasons other than the expiration of a term shall be filled for the remaining portion of the unexpired term.
(C) Members and alternates may be removed for cause by the Town Council, upon presentation of written charges and after providing for a hearing.
(D) The members of the Board and alternates may be compensated for expenses incurred in the performance of their duties according to the reimbursement schedule which may be adopted by the Town Council from time to time.
(Ord. 04-21, passed 10-6-2004, § 59)
§ 156.161 OFFICERS; RULES AND REGULATIONS.
The Board of Adjustment shall elect 1 member as Chairperson and another as Vice-Chairperson, who shall serve for 1 year or until a successor is designated. The Board may adopt from time to time rules and regulations as it may deem necessary to carry into effect the provision of this section.
(Ord. 04-21, passed 10-6-2004, § 60)
§ 156.162
(A) All meetings of the Board of Adjustment shall be held at a regular place and shall be open to the public. A quorum of 4 members, including alternates shall be present at the designated meeting place before a vote is taken or before a final disposition of any appeal is made upon which the Board is required to pass. The Board shall keep minutes of its proceedings, show the vote of each member upon each question, or if absent or failing to vote, an indication of the fact; and the final disposition of appeals shall be by recorded resolutions indicating the reasons of the Board therefor, all of which shall be public record. In the event a regular member shall be absent or temporarily disqualified, an alternate member shall be notified to serve in the place of the regular member.
(B) Each alternate member, while attending any regular or special meeting of the Board and serving in the absence of a regular member, has and may exercise all the powers and duties of a regular member.
(C) 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; and to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing. 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 10 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.
(D) Continuances. The Board of Adjustment may grant a continuance to any party for good cause shown or upon the Board’s own motion. Requests for continuances should be made in writing but may be made orally at a meeting of the Board. The Board Chair may grant a continuance request prior to a meeting if the applicant or appellant makes a written request showing good cause. The Board Chair may always defer ruling on such a request to allow for the decision to be made by the Board.
(1) Good cause. Good cause for a continuance includes, but is not limited to:
(a) The official issuing the decision subject to an appeal is unavailable;
(b) There is insufficient membership of the Board seated and present to hear a matter; or
(c) If any party or the town would be unduly prejudiced by the presentation of matters not presented in a notice of appeal.
(2) Renotification fees. If notices of hearing have already been issued, the party granted a continuance is responsible for the administrative costs of noticing an additional hearing if such costs are incurred.
(E) Rules of procedure. The Board may adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this section. Where this section and the rules adopted by the Board are in conflict, the provisions of this section prevail.
(Ord. 04-21, passed 10-6-2004, § 61; Am. Ord. 06-09, passed 9-6-2006; Am. Ord. 13-05, passed 11-6-2013; Am. Ord. 23-09, passed 9-6-2023)
§ 156.163 POWERS GENERALLY.
(A) Generally. The Board of Adjustment may reverse any order, requirement, decision or determination of the Zoning Administrator, or may decide in favor of the applicant a matter upon which the Board is required to pass under this chapter, or may grant a variance from the provisions of this chapter.
(B) Voting.
(1)
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 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 are no qualified alternates available to take the place of such members.
(2) A member of the Board or any other body exercising quasi-judicial functions pursuant to this section 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 violations of due process 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.
(3) Quasi-judicial decisions and judicial review.
(a) 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 written decision shall be signed by the Chairperson 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. 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.
(b) Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. § 160D-1402. 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 (B)(3)(a) of this section. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.
(Ord. 04-21, passed 10-6-2004, § 62; Am. Ord. 06-09, passed 9-6-2006; Am. Ord. 09-07, passed 8-5-2009; Am. Ord. 13-05, passed 11-6-2013; Am. Ord. 21-01, passed 6-2-2021)
§ 156.164 ADMINISTRATION OF OATHS.
(A) Generally. The Chairperson of the Board of Adjustment or any member temporarily acting as Chairperson and clerk to the Board are authorized to administer oaths to witnesses in any matter coming before the Board.
(B) Subpoenas. The Board of Adjustment through the Chairperson, or in the Chairperson's absence anyone acting as the Chairperson, may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under G.S. § 160D-1402 may make a written request to the Chairperson explaining why it is necessary for certain witnesses or evidence to be compelled. The Chairperson shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The Chairperson shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the Chairperson may be appealed to the full Board of Adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this section, the Board of Adjustment, or the party seeking the subpoena, 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.
(Ord. 04-21, passed 10-6-2004, § 63; Am. Ord. 06-09, passed 9-6-2006; Am. Ord. 13-05, passed 11-6-2013; Am. Ord. 19-05, passed 11-6-2019; Am. Ord. 21-01, passed 6-2-2021)
§ 156.165 APPEALS.
The Board of Adjustment shall hold an evidentiary public hearing to decide appeals of decisions of the Zoning Administrator 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. § 160D-1402 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.
(B) The Zoning Administrator 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 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.
(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 Zoning Administrator. Absent an ordinance provision to the contrary, posting of signs shall not be required.
(E) The Zoning Administrator shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from is taken. The Zoning Administrator 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 Zoning Administrator 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 Zoning Administrator 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) of this section, the Board of Adjustment shall hear and decide the appeal within a reasonable time.
(H) The Zoning Administrator 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 Zoning Administrator in these proceedings.
(I)
When hearing an appeal pursuant to G.S. § 160D-1402 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 G.S. 160D-1402.
(J) The parties to an appeal that has been made under this section 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. 04-21, passed 10-6-2004, § 64; Am. Ord. 06-09, passed 9-6-2006; Am. Ord. 13-05, passed 11-6-2013; Am. Ord. 21-01, passed 6-2-2021)
§ 156.166 INTERPRETATION OF ZONING MAPS, LOT AND DISTRICT BOUNDARY LINES AND THE LIKE.
The Board of Adjustment shall interpret zoning maps and pass upon disputed questions of lot lines or district boundary lines and similar questions that may arise in the administration of this chapter. The Board shall hear and decide all matters referred to it or upon which it is required to pass under this chapter.
(Ord. 04-21, passed 10-6-2004, § 65; Am. Ord. 06-09, passed 9-6-2006)
§ 156.167 VARIANCES.
(A) When unnecessary hardships would result from carrying out the strict letter of this chapter, the Board of Adjustment shall hold an evidentiary public hearing to grant a variance from any of the provisions of this chapter relating to the construction or alteration of buildings or structures of the use of land, so that the requested variance is consistent with the spirit, purpose and intent of this chapter, such that public safety is secured, and substantial justice is achieved. This shall be done upon a showing of all 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 the basis for granting a variance. However, a variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
(3) 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.
(4) The requested variance is consistent with the spirit, purpose, and intent of the regulation, 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 section.
(B) The public hearing shall be held as advertised. Any party may appear in person or be represented by agent or by attorney;
(C) The Board of Adjustment shall make findings that the requirements of division (A) above have been met by the applicant for a variance;
(D) The Board of Adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure; and
(E) The Board of Adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. Violation of these conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under § 156.999.
(F) Subsequent to approval, all variance orders shall be recorded by the property owner in the office of the Dare County Register of Deeds. A copy of the recorded variance order shall be provided to the Director of Community Development within 60 days of the approval date by the Board of Adjustment.
(Ord. 04-21, passed 10-6-2004, § 66; Am. Ord. 06-09, passed 9-6-2006; Am. Ord. 13-02, passed 4-3-2013; Am. Ord. 13-05, passed 11-6-2013; Am. Ord. 21-01, passed 6-2-2021)