A board of adjustment is hereby created. The term "board," when used in this article, shall be construed to mean the board of adjustment.

(Code 2003, § 30-71; Ord. No. 02-21, § 1(19.171), 6-20-2002; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

The board shall consist of five regular members and two alternate members, each to be appointed by the town council for a term of three years or until a successor is appointed. No member shall serve more than two consecutive terms. Any person appointed to fill an unexpired term shall be deemed to have served one of the two consecutive terms that such member may serve if the unexpired term is for two years or more. No later than 90 days preceding the expiration of a member's term, members who have served only one term may apply in writing to the town council to be reappointed for a second term. At the expiration of one year from a former member's second term, such member shall be eligible for reappointment to the board. Each alternate member while attending any regular or special meeting of the board and serving on behalf of any regular member shall have and may exercise all the powers and duties of a regular member. All regular members and alternate members shall be citizens and residents of the town.

(Code 2003, § 30-72; Ord. No. 02-21, § 1(19.172), 6-20-2002; Ord. No. 06-08, § 11, 3-16-2006; Ord. No. 11-08, § 2, 9-15-2011; Ord. No. O20-016, § 1(Exh. A), 3-19-2020; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

A member of the board or any other body exercising the functions of a board of adjustment 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 conflicts 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, the remaining members shall by majority vote rule on the objection.

(Code 2003, § 30-73; Ord. No. 02-21, § 1(19.173), 6-20-2002; Ord. No. 06-08, § 11, 3-16-2006; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

Vacancies occurring for reasons other than expiration of terms shall be filled as they occur for the period of the unexpired term.

(Code 2003, § 30-74; Ord. No. 02-21, § 1(19.174), 6-20-2002; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

The town council is authorized to compensate the members of the board of adjustment for their services subject to the following terms and conditions:

(1)

The compensation to be paid to members of the board of adjustment shall be established in the annual budget adopted by the town council.

(2)

Members of the board of adjustment shall be compensated on a per meeting basis and such compensation shall only be paid if a member of the board of adjustment attends the entire board of adjustment meeting for which compensation is authorized.

(3)

Members of the board of adjustment may choose not to receive compensation for their service. In such event the member shall submit written notice to the town clerk of his intention not to be compensated for such service. This notice shall be on forms approved by the town manager and must be submitted to the town clerk no later than July 31 of each fiscal year.

(Code 2003, § 30-75; Ord. No. 02-21, § 1(19.175), 6-20-2002; Ord. No. 15-11, § 1, 7-16-2015; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

(a)

The board members shall designate one of the members as chair, and one member as vice-chair, and they shall serve terms of one year.

(b)

The board shall adopt such rules and regulations for its own government as it deems necessary to carry out the provisions of this article.

(c)

A complete listing of all officers, terms of office, and rules and regulations shall be maintained for public record by the town clerk and a copy shall be kept on file in the office of the town clerk.

(Code 2003, § 30-76; Ord. No. 02-21, § 1(19.176), 6-20-2002; Ord. No. O20-016, § 1(Exh. A), 3-19-2020; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

All hearings of the board shall be open to the public. The board shall designate a clerk to keep minutes of its proceedings, showing the vote of each member upon each question, and the absence or failure of any member to vote, and a copy of the minutes shall be maintained on file for public record in the office of the town clerk. 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.

(Code 2003, § 30-77; Ord. No. 02-21, § 1(19.177), 6-20-2002; Ord. No. 06-08, § 12, 3-16-2006; Ord. No. 15-19, § 1, 10-15-2015; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

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. The 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 planning director shall certify that proper notice has been made and a copy of such written certification shall be made a part of the record of the proceedings.

(Code 2003, § 30-78; Ord. No. 02-21, § 1(19.178), 6-20-2002; Ord. No. 15-19, § 2, 10-15-2015; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

(a)

An appeal of an administrative decision related to development ordinances may be taken to the board of adjustment by any person who has standing under G.S. 160D-1402.

(b)

The appellant shall file a notice of appeal stating the grounds for the appeal with the director of planning and inspections within 30 days of receipt of either written notice of the determination administrative decision or receipt of actual or constructive notice of the decision per G.S. 160D-403.

(c)

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. Such official shall also provide a copy of the record to the appealing party and to the owner of the property that is the subject of the appeal if such owner is not the appealing party.

(Code 2003, § 30-79; Ord. No. 02-21, § 1(19.179), 6-20-2002; Ord. No. 08-01, § 1, 1-17-2008; Ord. No. 15-19, § 3, 10-15-2015; Ord. No. O20-023, § 1(Exh. A), 6-18-2020; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

Editor's note— Ord. No. O22-063, § 1(Exh. B), adopted August 18, 2022, changed the title of section 66-67 from "Appeals from decisions of the code enforcement officer" to "Appeals of administrative decisions." The historical notation has been preserved for reference purposes.

State Law reference— Compliance with provisions, G.S. 160D-405.

(a)

An appeal of a notice of violation or other enforcement order stays further enforcement of the determination that is being appealed, subject to subsections (1) and (2) below:

(1)

The official who made the decision may certify to the board of adjustment, after the notice of appeal is filed, that because of the facts stated in the affidavit:

a.

A stay would cause imminent peril to life or property, or

b.

A stay would seriously interfere with the enforcement of this article because the violation is transitory in nature.

(2)

If a certification is made in accordance with subsection (1) above, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court.

(b)

If enforcement proceedings are not stayed in accordance with subsection (a) above, the appellant may file with the planning and inspections director a request for an expedited hearing of the appeal, and the board of adjustment shall meet to hear the appeal within 15 days after the request is filed.

(c)

Decisions granting a permit or otherwise affirming that a proposed use of property is consistent with this article shall not stay the further review of applications for development proposals or permits for the property. In such cases, 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.

(Code 2003, § 30-80; Ord. No. 02-21, § 1(19.180), 6-20-2002; Ord. No. 15-19, § 4, 10-15-2015; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

State Law reference— Compliance with provisions, G.S. 160D-405.

The board shall have the following powers:

(1)

Hear appeals. The board of adjustment shall hear and decide appeals from decisions of administrative officials charged with enforcement of the zoning ordinances or FlexCode and may hear appeals arising out of any other ordinance that regulates land use or development that includes a provision for granting variances in accordance with the provisions of this chapter.

(2)

Authorize variances. When unnecessary hardships would result from carrying out the strict letter of the zoning ordinance, FlexCode, or subdivision ordinance, the board of adjustment shall vary any of the provisions of such ordinances upon a showing of all of the following:

a.

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.

b.

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.

c.

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.

d.

The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved.

(3)

Change in permitted uses and conditions. 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.

(4)

Oaths. The chair of the board 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.

(5)

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-1402 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 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 Superior Court of Brunswick County 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.

(Code 2003, § 30-81; Ord. No. 02-21, § 1(19.181), 6-20-2002; Ord. No. 06-08, § 13, 3-16-2006; Ord. No. 15-19, § 5, 10-15-2015; Ord. No. O20-023, § 1(Exh. A), 6-18-2020; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

State Law reference— Compliance with provisions, G.S. 160D-302.

The board shall refuse to hear an appeal or application previously denied if it finds there have been no substantial changes in conditions or circumstances bearing on the appeal or application.

(Code 2003, § 30-82; Ord. No. 02-21, § 1(19.182), 6-20-2002; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)

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 section 66-66. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

(Code 2003, § 30-83; Ord. No. 02-21, § 1(19.183), 6-20-2002; Ord. No. 15-19, § 6, 10-15-2015; Ord. No. O20-023, § 1(Exh. A), 6-18-2020; Ord. No. O22-063, § 1(Exh. B), 8-18-2022)