A board of adjustment is hereby established. Said board of adjustment shall consist of five regular members and five alternate members. Four regular members and four alternate members of the board of adjustment shall be citizens of the City of Hendersonville and shall be appointed by city council. One regular member and one alternate member of the board of adjustment who reside in the city's area of extraterritorial jurisdiction shall be appointed by the Board of Commissioners of Henderson County.

Terms shall be three years; however, city council and the Henderson County Board of Commissioners may appoint members for a lesser term in order to achieve a balanced system of overlapping terms. Any vacancy in the membership shall be filled for the unexpired term in the same manner as the initial appointment. Members shall serve without pay but may be reimbursed for any expenses incurred while representing the board of adjustment. Notwithstanding the foregoing, the city council may remove any member of the board of adjustment for the exhibition of a pattern of conduct that materially impairs or seriously threatens the ability of the board of adjustment to carry out its designation functions.

Members appointed to the board of adjustment by the board of county commissioners as representatives of the City of Hendersonville's Extraterritorial Jurisdiction shall have equal rights, privileges and duties with other members of the board in all matters pertaining to the regulation of the zoning ordinance in the city and its extraterritorial jurisdiction.

Alternate members shall serve on the board of adjustment in the absence of any regular members. Alternate members shall be appointed for the same term and in the same manner as regular members. Each alternate member, while attending any regular or special meeting of the board of adjustment and serving in the absence of any regular member, shall have and may exercise all the powers and duties of a regular member.

(Ord. No. O-25-20, § 2, 4-3-25)

The board of adjustment shall consider conflicts of interest as follows:

Members of appointed boards shall not vote on any advisory or legislative decision regarding a development regulation adopted pursuant to G.S. 160D-109(b) where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.

A member of any board exercising quasi-judicial functions pursuant to G.S. 160D-109(d) 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 board member's participation at or prior to the hearing or vote on a particular matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection per G.S. 160-109(e) [Resolution of Objection].

The board of adjustment shall have the following powers:

a)

To hear and decide appeals from and review any order, requirement, decision or determination made by any administrative official charged with the enforcement of the zoning ordinance or the subdivision ordinance and may hear appeals arising out of any other ordinance that regulates land use or development. As used in this section, the term "decision" includes any final or binding order, requirement or determination.

b)

To hear and decide requests for variances from the dimensional requirements of the zoning ordinance, in accordance with section 10-9, below;

c)

To review applications for special use permits and to issue special use permits in accordance with the provisions of section 10-8, below;

d)

To make interpretations of the official zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions as arise in the administration of the zoning ordinance;

e)

To enter, at reasonable times, upon private lands and make examinations or surveys as necessary for the performance of its official duties;

f)

To request city council to hold public hearings on matters within the purview of the board of adjustment;

g)

To hear and decide any other matter as required by the provisions of the zoning ordinance and the Code of the City of Hendersonville;

h)

To adopt rules not inconsistent with the zoning ordinance or G.S. governing the organization of the board of adjustment and proceedings before the board of adjustment.

The board of adjustment shall elect one member to serve as chair and preside over its meetings and shall create and fill such offices and committees as it may deem necessary. The term of the chair and other offices shall be one year with eligibility for re-election. The chair, or any member temporarily acting as chair, is authorized to administer oaths to any witnesses in any matter coming before the board of adjustment.

The board of adjustment shall establish a regular meeting schedule and shall meet frequently enough so that it may take action as expeditiously as reasonably possible. All meetings of the board of adjustment shall be open to the public.

Notice of date, time and place of the public hearing 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 city may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice shall be deposited in the mail not less than ten nor more than 25 days prior to the date of the hearing. Within that same time period, the city shall also prominently post a notice of the public hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.

The board of adjustment shall keep a record of its meetings, including attendance of its members, the vote of each member on every question, a complete summary of the evidence submitted to it, documents submitted to it, and all official actions.

If any member of the board of adjustment misses more than three consecutive regular meetings or more than half of the regular meetings in a calendar year, their status as a member of the board of adjustment shall be replaced or reappointed by city council or the county board of commissioners, as appropriate. Absence due to sickness, death, or other emergencies of like nature shall be recognized as excused absences, and shall not affect the member's status on the board of adjustment, except that in the event of a long illness or other such cause for prolonged absence, the member shall be replaced.

The chair of the board of adjustment 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 of adjustment. Any person who, while under oath during a proceeding before the board of adjustment, willfully swears falsely is guilty of a class 1 misdemeanor.

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. 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.

In accordance with G.S. 160D-406(i), the concurring vote of four-fifths of the board of adjustment 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 of adjustment and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the board of adjustment for the calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

A member of any board of adjustment exercising quasi-judicial functions pursuant to this article 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.

(Ord. No. O-25-20, § 2, 4-3-25)

The board of adjustment shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of the 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. 160D-1402(l)(2) or the city may appeal a decision of the board of adjustment. An appeal is taken by filing notice of appeal with the city clerk. The notice of appeal shall state the grounds of 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 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 ten days. Posting of the 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. Posting of the signs is not required.

e)

The official who made the decision shall transmit to the board of adjustment 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 all legal proceedings in furtherance of the action appealed from, unless the administrative officer certifies to the board of adjustment, after the notice of appeal has been filed with the city clerk, that because of facts stated in an affidavit, a stay would, 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. In such case proceedings shall not be stayed except by a restraining order, which may be granted by a court.

g)

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 request is filed. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of the 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 of adjustment may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.

h)

Subject to the provisions of subdivision (f) of this subsection, the board of adjustment shall hear and decide the appeal within a reasonable time.

i)

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 part of the city would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board of adjustment 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 an order, requirement, decision, or determination that ought to be made. The board of adjustment shall have all powers of the official who made the decision.

j)

When hearing an appeal pursuant to G.S. 160D-102, G.S. 160D-947, 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(l)(2).

k)

The parties to an appeal that has been made under this subsection may agree to mediation or other forms of alternative dispute resolution.

A special use permit from the board of adjustment is required for all special uses.

When a special use permit is required by the terms of this ordinance, application for such permit, along with a fee established by resolution of city council, shall accompany the application for a building permit.

The application for a special use permit shall be accompanied by a preliminary site plan showing the following:

a)

The proposed title of the project and the name of the engineer, architect, designer, landscape architect, planner and/or licensed surveyor, developer and owner of record;

b)

The north arrow point, scale at not greater than one inch equals 40 feet, and such information as the names of adjacent roads, streams, railroads, subdivisions or other landmarks sufficient to clearly identify the location of the property;

c)

Location of site by an insert vicinity map at a scale no less than one inch equals 2,000 feet;

d)

Existing project zoning and zoning of adjacent property, to include properties abutting either side of a public right-of-way;

e)

City limits line;

f)

Names of adjacent property owners;

g)

Boundary survey of site and the location of all existing easements, buildings, rights-of-way or other encroachments;

h)

Existing topography and proposed finished contours at not more than five feet intervals, with project bench mark clearly identified. Location of the 100-year floodplain, if applicable. Other significant natural features affecting the site including but not limited to marshes, major rock outcrops and lakes or streams;

i)

All proposed streets with proposed names, pavement widths and rights-of-ways. All alleys, drive-ways, curb cuts for public streets and handicap ramps, loading areas, and provisions for off-street parking spaces and sidewalks; calculations indicating the number of parking spaces required and the number provided. All streets shall be clearly identified as public or private; a typical cross-section of the public or private street shall be included;

j)

Preliminary utility layout including location and size of existing and proposed water, sanitary and storm sewer lines; proposed location of electrical transmission lines, gas pipelines, street lights, fire hydrants and the location of garbage disposal facilities or a note indicating arrangements for these facilities;

k)

Location and size of all entrances and exits to the site showing sight distances and their relationship to all street and driveway intersections within 25 feet for driveways and 200 feet for street intersections;

l)

A landscape plan showing wood line before site preparation with species and average diameter of trees indicated and areas to be screened, fenced, walled and/or landscaped; also location of buffer strips, if required;

m)

Proposed location and intended use of all buildings with their dimensions, the number of floors, total floor area and maximum height above lowest ground point of each building;

n)

Notations to include the total project area, the amount and percentage of the site to be covered by buildings, open space, streets and parking;

o)

General location, size, height, orientation, and appearance of proposed signs.

As a matter of discretion, the administrative officer may require additional items for preliminary site plans, which would be necessitated by conditions such as topography, location and anticipated traffic volumes on or near the site. The requirements may include but not be limited to traffic, noise, visual or fiscal impact studies, architect's models, renderings and other studies or data. In addition, if the administrative officer determines that one or more of the above submittal requirements is not applicable to the proposed project, it may be waived.

Upon receipt of an application and site plan, the administrative officer shall review same to determine if all required information has been provided or if additional information is needed. If the site plan is insufficient, the administrative officer shall notify the applicant in writing of such deficiencies. An application for a special use permit will not be scheduled for evidentiary hearing until such time as the board of adjustment is in receipt of a complete application and site plan, that is, an application and site plan containing all the information required under this ordinance.

Once the administrative officer is in receipt of a complete application and a complete site plan, the administrative officer will schedule the application for an evidentiary hearing before the board of adjustment.

The administrative officer shall mail or deliver written notice of the public hearing to the person or entity whose 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 city may rely on the county tax listing to determine owners 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 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.

The board of adjustment shall conduct an evidentiary hearing (quasi-judicial hearing) on the application. Per G.S. 160D-406(d), the applicant, the local government, and any person who would have standing under G.S. 160D-1402(c), shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board.

After the evidentiary hearing, and on consideration of the record, the board of adjustment shall take action on the application, either (1) denying it, (2) approving it, or (3) approving it subject to one or more reasonable and appropriate conditions. The board of adjustment shall not approve an application for a special use permit, with or without conditions, unless it makes each of the following findings of fact:

a)

The proposed use complies with the standards for such use contained in article XVI;

b)

The proposed use will not adversely affect the health or safety of persons residing or working in the neighborhood of such proposed use; and

c)

The proposed use will not be detrimental or injurious to property or public improvements in the neighborhood of such proposed use.

(Ord. No. O-25-20, § 2, 4-3-25)

A variance is a means whereby the city may grant relief from the effect of the zoning ordinance in cases of hardship. A variance constitutes permission to depart from the literal requirements of the ordinance.

When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the board of adjustment shall vary any of the provisions of the ordinance upon a showing of the following:

1)

Unnecessary hardship would result from the strict application of the ordinance. It is not 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. 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 is not 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.

The board of adjustment shall not have authority to grant a variance when to do so would: 1) result in the extension of a nonconformity regulated pursuant to section 6-2, above, or 2) permit a use of land, building or structure which is not permitted within the applicable zoning district classification. Per G.S. 160D-705(d), appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

An application to the board of adjustment pursuant to the terms of this article, whether it be in the nature of a request for a variance or a special use permit or an appeal from an administrative determination, must be received by the zoning administrator at least 20 days prior to the date of a board of adjustment meeting in order to be scheduled for such meeting.

a)

The board of adjustment 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 of adjustment'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 of adjustment. A quasi-judicial decision is effective upon filing the written decision with the clerk to the board of adjustment. The decision of the board of adjustment 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 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(l)(2). 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 subdivision (1) of this subsection. When first class mail is used to deliver notice, three days shall be added to the time to file the petition.