The planning, zoning and building committee shall administer this chapter, and those other sections of the Code relating to zoning and building. The planning, zoning and building committee shall have all administrative powers in connection therewith which are not specifically assigned by the town council to some other officer or body. The committee shall have no power to vary or waive any use or density requirements. The committee shall not have the power to vary or waive any other zoning or building requirements contained in or made part of this Code unless expressly authorized by a duly enacted resolution or ordinance approved by a majority of the town council.

(Code 1979, § 23-4; Ord. No. 93-3, § 1, 7-13-93)

The board of adjustment shall consist of five regular members and one alternate member, all of whom shall be residents of the town and at least 18 years of age. An alternate member may act in the temporary absence or disability of any regular member or may act when a regular member is otherwise disqualified in a particular case that may be presented to the board. No member or alternate member of the board shall be a paid or elected official or employee of the town.

(Code 1979, § 23-42(1))

Each member of the board of adjustment shall be appointed by the town council. For purposes of identification and appointment, the five regular board positions shall be designated as seats one through five, inclusive. Any appointment as a board member shall be either to a specific seat number for a regular member or as the alternate member.

(Code 1979, § 23-42(2))

All members of the board of adjustment shall be appointed to serve for terms of three years or until their successors are appointed, unless sooner removed for reasons of death, resignation or for cause. Members may be appointed by the town council to serve consecutive terms. The terms of not more than two regular members shall expire in any one year. Any member of the board may be removed from office for cause by the town council upon written charges and after a public hearing.

(Code 1979, § 23-42(3))

The board of adjustment shall elect a chairman and vice-chairman from among its regular members and shall appoint a secretary who may be an officer or employee of the town council. The board may create and fill such other offices as it may determine to be necessary for the conduct of its duties. Terms of all offices of the board shall be for one year, with eligibility for reelection and reappointment.

(Code 1979, § 23-42(4))

Any vacancy occurring during the unexpired term of office of any member shall be filled by the town council for the remainder of the term. Such vacancy shall be filled within 30 days after the vacancy occurs.

(Code 1979, § 23-42(6))

(a)

The town council may appropriate such funds as it sees fit for salaries, fees and expenses necessary in the conduct of the work of the board of adjustment. The board shall have the authority to expend all sums so appropriated and other sums made available for its use from other sources for the purpose and activities authorized by this Code. A fee established by the town council will be charged for each application for a hearing submitted to the board. The application, together with the check for the required fee, payable to the town, will be submitted to the town clerk. No fee shall be required when any town official or employee is applying for a hearing on behalf of the town.

(b)

Members and alternate members who are called upon to serve shall receive $20.00 per meeting attended.

(Code 1979, § 23-42(5))

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

(1)

Administrative review. To hear and decide appeals when it is alleged that there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter or any applicable building ordinance, code or regulation as provided in section 110-63.

(2)

Variances. To authorize upon appeal such variance from the terms of this chapter or the applicable building ordinances, codes and regulations as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions of this chapter or such ordinances, codes and regulations would result in unnecessary and undue hardship as provided in section 110-84.

(Code 1979, § 23-41(2))

(a)

Appeals may be taken to the board of adjustment by any person aggrieved or by any office, member or committee of the town council affected by any decision of an administrative official under this chapter. Such appeal shall be taken within 30 days after rendition of the order, requirement, decision or determination appealed from by filing with the office from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof. The appeal shall be in the form prescribed by the rules of the board. The administrative official from whom the appeal is taken shall, upon notification of the filing of the appeal, forthwith transmit to the board all the documents, plans, papers or other materials constituting the record upon which the action appealed from was taken.

(b)

In exercising its powers, the board may, upon appeal and in conformity with this Code, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination made by an administrative official in the enforcement of any applicable section of this chapter and may make any necessary order, requirement, decision or determination and to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of a majority of all the members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant on any matter upon which the board is required to pass under any such section.

(Code 1979, § 23-44)

(a)

The town council shall have no authority to vary or waive any provisions or requirements of this chapter and the town's building codes when the council is acting in its capacity as the approving authority for an application for a building permit authorizing new construction or substantial improvement to an existing building or structure.

(b)

The town council shall have sole authority and responsibility to hear and decide appeals for special exceptions; to decide such questions as are involved in the determination of when special exceptions should be granted; and to grant special exceptions with appropriate conditions and safeguards or to deny special exceptions when not in harmony with the purpose and intent of this chapter. Sections 110-82 and 110-87 should be reviewed for additional requirements.

(c)

The requisite procedures for holding a public hearing to consider and decide an appeal for a special exception are specified in section 110-86.

(Code 1979, § 23-41(1))

(a)

As part of the application required by section 110-86, each applicant for a special exception shall submit a site plan and a detailed statement of all uses proposed for the subject property.

(b)

Any use for which a special exception is conditionally granted becomes and remains a permitted principal use of the property only as long as the attached conditions are observed and the use is not discontinued for 90 days or longer.

(c)

In granting any special exception, the town council shall consider whether approval of the special exception would be to maintain harmony with the purpose and interest of the town's land use plan and this chapter or any related ordinance.

(d)

In granting any special exception, the town council may prescribe appropriate conditions and safeguards in conformity with the town's land use plan and this chapter and any other related ordinance in this Code.

(e)

The town council may prescribe a reasonable time limit within which the action for which the special exception is required shall be begun or completed or both.

(Code 1979, § 23-45)

Special exceptions may be permitted in zoning districts or classifications only by the town council and only in accordance with the specific provisions and standards for granting such special exceptions as required by section 110-81.

(Code 1979, § 23-7)

(a)

A variance to this chapter may be granted when such variance will not be contrary to the public interest and when, owing to conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of this chapter would result in unnecessary and undue hardship. A variance is authorized only for the following numerical provisions of this chapter such as: minimum building area per principal building; minimum building setbacks; swimming pool or swimming pool enclosure setbacks; minimum building height; minimum enclosed floor space; maximum lot coverage; floor area ratio; minimum distance between buildings; minimum required open area; and minimum off-street parking space requirements. Establishment or expansion of a use otherwise prohibited shall not be allowed by variance nor shall a variance be granted because of the presence of nonconformities in the zoning district or classification or in adjoining zoning districts or classifications.

(b)

In authorizing any variance from this chapter where strict adherence to this chapter would result in unnecessary or undue hardship, the board of adjustment shall consider the following required criteria:

(1)

Special conditions or circumstances exist which are peculiar to the land, structure, building or occupancy involved and which are not generally applicable to other lands, structures, buildings or occupancies in the same zoning district.

(2)

Such special conditions or circumstances do not result from the actions of the applicant.

(3)

Granting the variance requested will not be contrary to the public interest or have a detrimental effect upon adjoining properties or the neighborhood.

(4)

A literal interpretation and enforcement of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district or would result in unnecessary or undue hardship to the applicant.

(5)

The variance requested or as granted by the board of adjustment is the minimum variance necessary to alleviate the hardship.

(6)

Granting the variance will be in harmony with the general intent and purpose of this chapter, the comprehensive plan and land development regulations.

(Code 1979, §§ 23-7, 23-46)

Public notice for a public hearing, concerning appeals or applications for special exceptions, variances or administrative reviews to be held either by the town council or the town's board of adjustment and appeals, as appropriate, shall require a publication of notice of the time, place and purpose of the public hearing at least twice in a newspaper of general circulation in the town. The first such publication shall be at least 15 days prior to the date of the hearing and the second such publication shall be at least five days prior to the hearing. In addition, except where the hearing applies to all of the land within the town, similar notices setting forth the time, place and purpose of such hearing shall be mailed to the last known address of the owners of the property involved in or directly affected by the hearing, and such notices shall also be posted in a conspicuous place on or around such lots, parcels or tracts of lands as may be involved in or directly affected by the hearing. Affidavit proof of the required publication, mailing and posting of the notice shall be presented at the hearing.

(Code 1979, § 23-7)

The following shall apply to all appeals to the town council or board of adjustment for the purpose of considering requests for administrative reviews, variances and special exceptions. Section 110-63, 110-82 or 110-84 contains possible additional requirements or procedures that are distinctive of a particular type of appeal. The requirements that follow must be completed by the applicant before the appeal will be heard:

(1)

File with the town clerk, for an appeal to the council, or the building official, for an appeal to the board, an application signed by the applicant and having a format and content as may be deemed necessary by the council or board.

(2)

No application shall be deemed complete and acceptable until and unless it complies with all of the requirements therefor as set forth in this Code and is accompanied by an application fee, except as may be noted, of $250.00. As a minimum, the application shall contain the full name and address of the applicant, the owner of property involved in the appeal and any other parties representing either the applicant or the owner; the address, project name and legal description of the property involved in the appeal; and the names, mailing addresses, and connection to the case at hand of all affected or interested parties to the appeal.

(Code 1979, § 23-43; Ord. No. 2008-8, § 1, 10-14-08)

The following procedures are applicable to all appeals of administrative decisions and interpretations and all applications for variances to the board of adjustment and to all hearings regarding variances and administrative reviews and to the town council in hearing all special exception requests:

(1)

The town council and board of adjustment shall adopt rules for transaction of its business and shall keep a record of its resolutions, transactions, findings and determinations. All town council and board records shall be public records and copies shall be made available to the public at cost.

(2)

Meetings of the town council or board shall be held at the call of the mayor or chairman and at such times as the town council or board may determine. Public notice of all administrative meetings of the town council or board shall be given at least 48 hours prior to the start of the meeting either by advertisement in a newspaper of general circulation or by posting in the town hall and two other public places in the town. All meetings of the town council or board shall be open to the public.

(3)

Any member of the board of adjustment may inspect the premises involved prior to considering an application for a variance and an appeal of an administrative decision or interpretation, but must disclose the fact of such inspection at the hearing on the variance application or appeal.

(4)

The town council or board, through the mayor or board chairman, may administer oaths and request the attendance of witnesses.

(5)

An application to the board of adjustment for a variance or an appeal of an administrative decision or interpretation stays all work on the premises and all proceedings in furtherance of the variance applied for or the action appealed from, unless the building official shall certify to the board that, by reason of facts stated in the certificate, a stay would cause imminent peril to life or property.

In such case, proceedings or work shall not be stayed except by a restraining order which may be granted by the board or by the circuit court in the judicial circuit where the board is located, on application, on notice to the officer from whom the appeal is taken and on due cause shown.

(6)

The town council in hearing special exception applications and the board of adjustment in hearing applications for variances and appeals of administrative decisions and interpretations shall fix a reasonable time for the hearing of the application or appeal, give due public notice thereof, as well as due notice to the parties in interest, and decide the application or appeal within a reasonable time. Upon the hearing, any party may appear in person, by agent or by attorney. Appellants may be required to assume such reasonable costs in connection with hearings and appeals as may be determined by the town council through action in setting of fees to be charged for hearings and appeals.

(7)

The town council and board shall provide the applicant or his agent or attorney and all interested parties or their agents or attorneys an opportunity to be heard at hearings of the board and the town council. Testimony may be taken and evidence may be submitted for consideration by the town council or board. At the request of any interested party, a court reporter may transcribe the proceedings; however, the interested party shall make all arrangements to obtain the court reporter and shall bear, exclusively, all costs incurred.

(Code 1979, § 23-47(1)—(7); Ord. No. 03-1, § 1, 3-11-03; Ord. No. 2007-3, § 1, 9-25-07)

The town council in hearing special exception requests and the board of adjustment and appeals in hearing variances and administrative reviews may continue a hearing for any of the following reasons:

(1)

Lack of sufficient information on which to base a decision.

(2)

Presentation of conflicting information which is a necessary and significant factor to a finding in the matter being heard by the council or board and which cannot be resolved during the course of the hearing.

(3)

Physical inability of essential persons to participate adequately in the appeal.

(4)

Absence of one or more witnesses who were requested to attend and whose testimony is considered by a majority of the council or board to be essential to a finding or determination.

(Code 1979, § 23-47(8))

(a)

After considering the material presented by the applicant and other interested parties to a request for special exception, the town council shall approve the applicant's request, either unchanged or in some modified form, only after first considering the following required criteria:

(1)

Approval of the request will not cause any significant hazard, annoyance or inconvenience to the owners or occupants of nearby properties.

(2)

Approval of the request will not significantly change the character of the neighborhood or otherwise have a detrimental effect upon the neighborhood environment.

(3)

Approval of the request will not impose any significant cost burden upon the town.

(4)

Approval of the request will not constitute any significant departure from the requirements of this chapter, land development regulations or the comprehensive plan.

(5)

Failure to approve the request would impose an unnecessary and undue hardship upon the applicant which was not caused by the actions of the applicant.

(6)

Approval of the request would be consistent with a reasonable consideration of special or unusual conditions or characteristics of the property.

(b)

The town council in hearing special exceptions and the board of adjustment in hearing variances and administrative reviews, after considering all information submitted and the criteria specified in subsection (a) of this section shall approve or deny the request subject to any applicable conditions, unless the hearing is continued as provided for in section 110-88.

(c)

Decisions by the town council and the board with respect to requests for variances, administrative reviews or special exceptions shall be by a simple majority vote after proper motion and second. Failure to approve a request shall constitute denial thereof.

(d)

The town clerk shall notify the applicant and other interested parties of the decision of the town council or board.

(e)

The town council or board may subsequently set aside or change in any manner any of their previous decisions which have been found to be based on materially false information.

(f)

The record of each hearing before the town council or board shall show the decision of the town council or board and the vote of each member upon each question put to vote by the town council or board or, if absent or failing to vote, indicating such fact.

(Code 1979, § 23-47(9)—(14))

(a)

Any person whose application for a variance has been denied by the board of adjustment and appeals may request a rehearing before the board by submitting a letter to the building official within 30 days of the decision of the board denying the application for variance. Such letter shall clearly request a rehearing of the decision of the board and shall explain in detail the basis and grounds upon which a rehearing is sought.

(b)

The board shall decide by majority vote whether to grant a rehearing based upon the grounds and argument contained in the applicant's request for rehearing without further evidence or argument by the applicant. A rehearing shall be granted on the grounds that the board has misapplied the law, failed to consider material evidence presented at the original hearing or failed to afford fundamental due process to any interested party or person. A rehearing shall not be granted for the purpose of rehearing evidence or argument presented at the original hearing and considered by the board in reaching its original decision or for the purpose of hearing evidence or argument which could have or should have been presented at the original hearing.

(c)

If a rehearing is granted, the matter shall be set for hearing at the next meeting of the board.

(d)

A timely filed request for rehearing shall toll the time for an appeal of the original decision of the board to the circuit court until the board has rendered a decision on whether to grant a rehearing.

(Ord. No. 03-1, § 2, 3-11-03)

A person whose application for a variance has been denied by the board of adjustment and appeals may not reapply for the same variance for a period of one year from the date of the decision denying the variance unless there are materially changed circumstances from the time of the first application.

(Ord. No. 03-1, § 3, 3-11-03)

(a)

Any person jointly or severally aggrieved by any decision of the board of adjustment or any officer, department, board, commission or bureau of the town may apply to the circuit court in the judicial circuit where the board of adjustment is located for judicial relief within 30 days after rendition of the decision by the board of adjustment and appeals. Such appeal shall be taken in accordance with the provisions of state law.

(b)

Any person jointly or severally aggrieved by any decision of the town council concerning a special exception may apply to the circuit court in the judicial circuit wherein the town is located for judicial relief within 30 days after rendition of the decision by the council.

(Code 1979, § 23-41(1)c, d; Ord. No. 03-1, § 4, 3-11-03)