(a)

Authority. A board of adjustment is hereby established pursuant to G.S. 160D-302 with extra territorial jurisdiction representation under G.S. 160D-307 to exercise the powers and duties prescribed herein and as prescribed by G.S. ch. 160D.

(b)

Membership. The board of adjustment hereafter called the board, shall consist of the same persons appointed by the city council to serve on the planning board pursuant to section 2-108. Notwithstanding the identical membership between the planning board and the board of adjustment, when seated an acting as the board of adjustment, the members shall exercise the powers and authority and follow the procedures for a board of adjustment as set forth in this Code and G.S. ch. 160D. All members shall be citizens and residents of the City of Dunn and shall be appointed by the city council, except extraterritorial members appointed pursuant to section 2-108. Representation from the adopted extraterritorial jurisdiction shall be as provided in section [2-]108.

(c)

Terms. The term of members shall be the same as the appointed term for service on the planning board pursuant to section 2-108.

(d)

Oath of office. Every person appointed to any city office shall, before entering upon the duties of the office, take and subscribe the oath of office prescribed in Article VI, Subsection 7 of the Constitution. Oaths of office shall be administered by some person authorized by law to administer oaths, and shall be filed with the city clerk.

(e)

Notice of hearing. Notice of hearings 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. In the absence of evidence to the contrary, the city 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 (10) days, but not more than twenty-five (25) days, prior to the date of the hearing. Within that same time period, the city 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.

(f)

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 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 and/or the zoning administrator. 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.

(g)

Subpoenas. 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 G.S. 160D-406(g) 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 subsection, 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. No. O2014-07, 5-8-14; Ord. No. O2020-19, 9-8-20)

(a)

Officers. The board of adjustment shall meet and elect a chairperson and vice-chairperson from among its members for a one year term. All officers may succeed themselves. The chairman shall be a resident of the city.

(1)

The chairperson will:

a.

Preside at all meetings and public hearings of the board of adjustment.

b.

Decide all points of order or procedure.

The chairman or in his absence, the acting chairman, shall administer oaths to witnesses in any matter coming before the board and may compel the attendance of witnesses.

(2)

The vice-chairperson will:

a.

Assume the duties of the chairperson, when the chairperson cannot preside and at such times he/she shall have the same powers and duties as the chairman.

(3)

Should neither the chairperson or vice-chairperson be able to preside at a meeting, the group will elect a chairperson for that meeting only or until such time the chairperson or vice-chairman can resume their responsibilities.

(b)

Meetings.

1.

The board of adjustment shall meet when necessary and in accordance with the provisions of North Carolina General Statutes Section 143, Article 33C, "Public Meetings Laws."

2.

Special meetings. Reserved.

3.

Cancellation of meetings. Reserved.

4.

Quorum. A quorum shall consist of a majority of the regular members, excluding any unfilled vacancies for the purpose of taking official action, but the board shall not pass on any question relating to an appeal from a decision, order, requirement or determination of the administrative official charged with enforcing the ordinance or an application for a variance or special use permit when fewer than six (6) members are present.

(c)

Records. The board shall keep minutes of its proceedings, showing the vote of each member upon every question or his absence or failure to vote, indicating such fact. The board of adjustment shall keep public record of its examinations, discussions, findings, and decisions and any other official actions.

(d)

Conduct.

(1)

Members of the board may be removed by the appointing authority for cause, including violation of the rules stated below.

(2)

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

(3)

No board member shall take part in the hearing, consideration or determination of any case in which he is personally or financially interested.

(4)

No board member shall vote on any matter that decides an application or appeal unless he/she has attended the public hearing on that application or appeal.

(5)

No board member shall discuss any case with any parties thereto before the public hearing on that case; provided, however, that members may receive and/or seek information pertaining to the case from any other member of the board or appropriate staff member before the hearing.

(6)

Members of the board shall not express individual opinions on the proper judgment of any case with any parties thereto before the case is determined. Violation of this rule shall be cause for dismissal from the board.

(e)

Rules of procedure. The board of adjustment shall draw up and adopt the rules and procedures under which it will operate.

(Ord. No. O2014-07, 5-8-14)

The board of adjustment shall have the following powers and duties:

(1)

Administrative review/interpretation. To hear and decide appeals from and review any order, requirement, decision, determination, or interpretation made by an administrative official charged with enforcing this ordinance. To hear and decide appeals regarding interpretation of the zoning map and pass upon disputed questions of district boundary lines.

(2)

Special use permits. To hear and decide to permit certain exceptional uses that the ordinance authorizes under certain stated conditions when it makes certain specified findings and to affix other reasonable and appropriate conditions for the protection of neighboring properties and the community, including the imposition of a time limit on the period of time in which the special use will be permitted.

(3)

Variances. To hear and decide appeals for variances from the zoning provisions of this ordinance in cases where special conditions would make strict and literal interpretation and enforcement of the zoning provisions of this ordinance result in a loss of privileges shared by other properties within the same zoning district. The board may impose reasonable and appropriate conditions for the protection of neighboring properties and the community.

(a)

Required vote for approval. The vote of four-fifths ( 4/5 ) 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 subsection, 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.

(b)

Vote of the chairman. The board chairman shall vote as any other board member.

(c)

Delay of decision. The board may, at its discretion, direct that its decision be delayed to a date and time specific subsequent to the board's vote on an appeal.

(Ord. No. O2014-07, 5-8-14)

(a)

Appeal to superior court. Each decision of the board shall be subject to superior court review by proceedings in the nature of certiorari.

(b)

Timing of appeal.

(1)

Any petition for review by the superior court shall be filed with the clerk of superior court within thirty (30) days after the decision by the board is filed in the planning department; or

(2)

After a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the chairman of the board at the time of its hearing of the case, whichever is later.

(a)

Procedure for filing appeals. No appeal shall be heard by the board unless notice thereof is filed within thirty (30) days after the interested party or parties receive notice of the order, requirement, decision or determination by the zoning official and shall specify the grounds thereof. The applicant must file his application for a hearing with the zoning administrator, 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 complete before the appeal may be considered as having been filed.

The official from whom the appeal is taken shall forthwith transmit to the board all papers constituting the record from which such action was 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.

(b)

Effect of appeal. An appeal stays all proceeding in furtherance of the action appealed from, unless the officer, or other public official, from whom the appeal is taken certifies to the board, after notice of appeal has been filed with him, that because of facts stated in the certificate a stay would, in the officer's opinion, cause imminent peril to life or property or that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of the ordinance from which this chapter is derived.

(c)

Effect of certification. If certification occurs in accordance with section 22-556, proceeding may not be stayed except by a restraining order, which may be granted by a court of competent jurisdiction. Notice of the restraining order shall be given in writing to the official from whom the appeal is taken.

(1)

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 fifteen (15) days after such a request is filed.

(d)

Scheduling of hearing. After receipt of notice of an appeal, the board chairman shall schedule the time for a hearing, which shall be at a regular or special meeting within thirty-six (36) days from the filing of such notice of appeal.

(e)

Notice of hearing. All notice of hearings shall comply with section 22-551(e).

(f)

Conduct of hearing. 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.

(g)

Fees. A fee shall be paid to the city for each application for a variance, interpretation, or appeal, to cover the necessary administrative costs and advertising.

(1)

In the case of a natural disaster the fee shall be waived for a variance application. The applicant may apply to appear before the board to rebuild any buildings that were destroyed and were in a non-conforming status.

(h)

Action of board. The board may reverse or affirm, in whole or in part, or may modify the order, requirement, decision, or determination or interpretation appealed from, and shall make any order, requirement, decision, determination or interpretation that in the board's opinion ought to be made under the circumstances. The board shall have all the powers of the official who made the decision.

(i)

Conditions rehearing. The board shall not be required to hear an appeal or application previously denied if it finds that there has been no substantial change in conditions or circumstances bearing on the appeal or application.

(j)

Decisions. Reserved.

(Ord. No. O2012-09, 7-10-12; Ord. No. O2014-07, 5-8-14)

(a)

Application. An application for a variance shall be submitted in writing to the board by filing a copy of the completed application with the zoning administrator. The applicant has the burden of proving unnecessary hardship. The proof must be compelling and reasons for granting the variance must be substantial. Mere economic, or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors also do not qualify. The hardship that the applicant must prove must be measured against the community's need for strictly enforced regulations that protect its citizens. Evidence supporting the request for a variance shall be submitted at the time of the application for the variance.

(b)

Grounds for a variance.

(1)

The board shall make findings of fact that the requirements of section 22-557(c), have been met by the applicant.

(2)

The variance requested is the minimum variance that will make possible the reasonable use of the land, building or structure.

(3)

The board shall not, under any circumstances, grant a variance to permit a use or density not otherwise permitted by this ordinance in the zoning district involved.

(4)

Neither the nonconforming use of lands, buildings or structures in the same zoning district, nor the permitted use of lands, buildings or structures in other zoning districts shall be considered as grounds for the issuance of a variance.

(c)

Granting of variance. A variance from the terms of this chapter shall not be granted by the board unless and until the following findings are made:

(1)

There are practical difficulties or unnecessary hardships that would result from the strict enforcement of this ordinance. The board may reach this conclusion if it finds that:

a.

Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter;

b.

The hardship of which the applicant complains results from unique circumstances related to the applicant's property; special conditions and circumstances exist which are peculiar to the land, structure, or building involved and are not applicable to other lands, structures, or buildings in the same district;

c.

The hardship relates to the applicant's property, rather than personal circumstances;

d.

Hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance; and

e.

The hardship is not the result of the applicant's own actions. Special conditions and circumstances do not result from the actions of the applicant.

(2)

The variance is in harmony with the general purpose and intent of this ordinance and preserves the spirit of this ordinance.

(3)

The granting of the variance assures the public safety and welfare and does substantial justice. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other land, structures, or buildings in the same district.

(d)

Conditions. In granting a variance, the board may prescribe such reasonable and appropriate conditions and safeguards as will assure the use of the property to which the variance applies will be compatible with surrounding properties and will not alter the essential character of the neighborhood.

(1)

Violations of such conditions and safeguards, when a part of the terms under which the variance is granted, shall be deemed a violation of this ordinance.

(2)

A variance granted subject to a condition shall be permitted only so long as there is compliance with the condition.

(3)

If a violation of a variance occurs, the city may revoke the certificate of occupancy.

(4)

In the event that any such condition is held invalid, for any reason, such holding shall have the effect of invalidating the variance granted and shall render the variance null and void.

(e)

Duration. The variance may be issued for an indefinite duration or for a specified duration only. Unless otherwise specified, construction or operation shall be commenced within twelve (12) months of the date of issuance of a variance, or the variance shall become void.

(Ord. No. O2014-07, 5-8-14)