This chapter addresses the establishment of the Board of Adjustment and those rules governing said Board. The purpose of this Board is to assist in the implementation of this Ordinance with regards to appeals, change in kind of nonconforming uses, variances, and special use permits.

The Zoning Board of Adjustment shall be governed by the terms of Chapter 160D-302 of the North Carolina General Statutes and by the Iredell County Zoning Ordinance. All members of the Board shall thoroughly familiarize themselves with these laws.

(Ord. of 4-20-21)

The Board of Adjustment shall consist of seven (7) members who shall be appointed by the Board of Commissioners and who shall be residents of the County. Members shall serve overlapping terms of three (3) years. Initial appointment of the members shall be as follows: three (3) members for a term of three (3) years, two (2) members for a term of two (2) years, and two (2) members for a term of one (1) year. Any vacancy in the membership shall be filled for the unexpired term in the same manner as the initial appointment.

In addition to the regular members, the Board of Commissioners may appoint two (2) alternate members, who shall be residents of the County, each for three (3) year terms. The Chairman of the Board of Adjustment, or in his absence the acting chairman, may appoint the alternates to sit for any regular members in case of the absence or disqualification of any regular members. In such case the alternate members shall have the same powers and duties of the regular members they are replacing during such time. In no case, however, shall more than seven (7) regular members or combination of regular members and the alternate members be empowered to vote on any matter that comes before the Board.

A.

Chairman. A chairman shall be a regular member of the Board of Adjustment and elected by the majority vote of the full membership of the Board. His/her term of office shall be one (1) year in which he/she is eligible for re-election or his/her successor is elected, beginning July 1. The chairman shall decide upon all aspects of order and procedure, subject to these rules, unless otherwise directed by the majority of the Board in session at the time. The chairman shall appoint committees found necessary to investigate any matters before the Board.

B.

Vice Chairman. A vice chairman shall be a regular member and elected in the same manner as the chairman and serve the same term. He/she shall serve as acting chairman in the absence of the chairman, and at such times he/she shall have the same powers as the chairman.

C.

Clerk. The clerk, subject to the direction of the chairman of the Board, shall keep all records, conduct all correspondence of the Board, arrange for all required public notices, notify members of the agenda and pending meetings, notify parties of cases prior to the Board making a decision on such cases, shall generally supervise the clerical work of the Board. The clerk shall keep in a permanent volume the minutes of every Board meeting. These shall indicate the names of members that were present or absent, show the record of all important facts pertaining to each meeting and hearing, every resolution acted upon by the Board, all votes of the Board members upon any resolution, deposition, or final determination of any question, indicating the names of the members voting against or failed to vote.

D.

Alternate members. Alternate members of the Board shall be called upon to attend only those meetings and hearings at which one (1) or more regular members are absent or unable to participate in that meeting and/or hearing. Regular members, on receiving notice of a special meeting or are unable to participate in a scheduled hearing, shall promptly give notice to the secretary. The secretary shall, by most expeditious means, notify the alternate member to attend. Any meeting, which they are called upon to attend, alternate members shall have the same powers and duties as regular members.

Except at the election of officers, at no time shall more than seven (7) members participate officially in any meeting or hearing.

A.

Members of the Board may be removed for cause, including violation of the rules stated below.

B.

Faithful attendance at all meetings of the Board and conscientious performance of the duties required of members. This is a pre-requisite to continue membership of the Board.

C.

No Board member shall take part in the hearing or determination in which he/she has a financial interest, fixed opinion, undisclosed outside contact, close family tie, close business tie or other associational relationship with an affected person, or a financial interest in the outcome of the matter.

D.

No Board member shall vote on any matter deciding an application or appeal, unless he/she shall have attended the public hearing on that application or appeal.

E.

No member shall discuss any case with any parties (ex-parte contact) thereto prior to the public hearing of that case; however, members of the Board can receive and/or seek information pertaining to a case from other members, its secretary, or clerk prior to the hearing. In the case of an appeal, planning and zoning staff are a party, and the Board shall not discuss such cases with the secretary or the clerk.

F.

Members of the Board will not express individual opinions on the proper judgment of any case with any party thereto prior to its final determination.

G.

It is possible for a Board member to visit a site prior to the public hearing, however, since the Board's decision must be based on evidence presented at the hearing, it is important for any Board member who visits a site to state at the hearing what he/she observed.

(Ord. of 4-20-21)

A.

Regular meetings. Regular meetings of the Board shall be held on the third Thursday of each month at 7:00 p.m. in the Commissioners Meeting Room in the Iredell County Government Center (Old Courthouse), 200 S. Center Street, Statesville, North Carolina. Provided that the meeting be held at any other convenient time and/or place in the county, when business needs to be acted upon; if directed by the chairman in advance of the meeting.

B.

Special meetings. Special meetings of the Board may be called at any time by the chairman. A written notice of the time and place of the special meeting shall be delivered by the clerk to each Board member at least forty-eight (48) hours prior to the scheduled meeting. If a majority of the Board is notified, then a public notice shall be published in the Statesville Record & Landmark forty-eight (48) hours prior to the scheduled meeting.

C.

Cancellation of meetings. Whenever there are no appeals, applications for special use permits or variances, or other business for the Board or whenever so many regular and alternate members notify the secretary of inability to attend, that a quorum will not be available, the chairman may dispense with a regular meeting by giving written or oral notice to all Board members not less than twenty-four (24) hours prior to the time set for the meeting.

D.

Quorum. A quorum shall consist of four-fifths (⅘) members of the Board, but the Board shall not pass upon any questions relating to an appeal from the decision, order, requirement, or determination of the zoning enforcement officer, or an application for a variance or special use permit when there are less than six (6) members present.

E.

Voting. All regular members shall vote on each issue made in the form of a motion, unless they have disqualified themselves for one or more of the following reasons listed in Section 12.1.4. The required vote to decide appeals and applications shall be treated as stated in Section 12.1.5.D (four-fifths (⅘) vote), and shall not be reduced by any disqualification. All abstaining from voting will be counted as a "yes." All silent votes will be counted as a "yes." All "no" votes shall be vocal. In all other matters, the vote of the majority of the members present and voting decide issues before the Board.

F.

Conduct of meetings. All meetings shall be open to the public, subject to the following rules:

1.

Persons wishing to speak at the public hearing on a variance, special use permit, or an appeal, shall register with the Clerk to the Board; listing the party or parties they represent, indicate whether they support or oppose the application, be sworn in, and be limited to a maximum of five (5) minutes each.

2.

Persons wishing to speak at a public hearing on a variance, special use permit, or appeal, for more than five (5) minutes, shall give written notice to the Clerk to the Board of Adjustment prior to the meeting, stating the reason for support of or opposition to the proposed application.

3.

Oral testimony presented at the public hearing shall be limited to fifteen (15) minutes total for the proponents and fifteen (15) minutes total for the opponents, except, where a written notice to speak as referenced in Section 12.1.5.F.2. To request additional time, the request may be allowed in whole or in part at the public hearing at the discretion of a person presiding at said meeting.

G.

Order of business.

•

Call to order;

•

Approval of minutes from the previous meeting;

•

Hearing of cases;

•

Reports of committees;

•

Unfinished business;

•

New business; and

•

Consideration and determination of cases heard.

An appeal from the decision of the Administrator may be taken by the aggrieved party to the Board of Adjustment. Such appeal shall be taken within thirty (30) days by filing with the Administrator a notice of appeal specifying the grounds thereof. The Administrator shall forward to the Board all papers constituting the record upon which the action appealed from was taken. The Board of Adjustment shall fix a reasonable time for hearing the appeal, give public notice thereof, as well as due notice to the parties in interest and decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or attorney.

The Board shall inform in writing all the parties involved of its decisions and the reasons therefore.

An evidentiary hearing is required for each decision. The purpose of the hearing is to gather facts, not to gather opinions about the desirability or popularity of the project.

A.

Time. After receipt of a notice of 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.

B.

Notice. The Board shall give public notice of the hearing by posting notice on the property which is subject to action, and advertise in a local newspaper at least ten (10) days prior to the public hearing. This legal notice shall appear at least once weekly for two (2) consecutive weeks. Adjoining property owners shall be notified by letter stating the facts concerning the public hearing. Such notice shall state the location, general nature involved in the request, and the time and location of the hearing.

C.

Conduct of Hearing. Any party may appear in person or by agent or by attorney at the hearing and subject to the rules in Section 12.1.5.F. The order of business for the hearing shall be as follows:

1.

The clerk shall give a preliminary statement of the case.

2.

The applicant shall present facts/evidence that support his application.

3.

Persons opposed shall present facts/evidence against the application.

4.

Both sides will have an opportunity to present a rebuttal to opposing testimony.

5.

The chairman shall summarize the evidence which has been presented, giving both parties opportunity to make objections or corrections. Witnesses may be called and evidence submitted, but the Board shall not be limited to consider such evidence to be admissible as in a court of law. The Board may view the premises before arriving at a decision. All witnesses shall be sworn in and are subject to cross-examination.

D.

Rehearing. An application for a rehearing may be made in the same manner as provided for an original meeting. Evidence in support of the application shall initially be limited to that which is necessary to enable the Board to determine whether there has been a substantial change in facts or evidence (change in federal, state, or local law, or a change in the Zoning Ordinance). The application for rehearing shall be denied by the Board if from the record it finds that there has not been a substantial change in fact or evidence. If the Board finds that there has been a change, then the request shall be treated in the same matter as any other application. If there is a change in conditions (different site plan or an increase or decrease in the size of the request), the case shall be considered a new and distinctive case from that of before.

A.

Evidence. Quality evidence must be in the hearing to support the Board's final decision from an appeal, or application for variance or special use permit.

1.

Substantial, competent, and material facts/evidence is needed to support the Board's findings.

2.

Hearsay. Hearsay is admissible, however, hearsay evidence cannot be the sole basis for a crucial findings of fact. Crucial findings of fact include those that are contested.

3.

Opinion testimony by expert. The Board is interested in fact not opinion, however, opinions offered by experts are an exception to this rule.

B.

Time. Decisions by the Board shall be made NOT more than thirty-six (36) days from the time of hearing the case. The Board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.

C.

Form. Written notice of the decision in a case shall be given to the applicant by the clerk in a reasonable amount of time following the decision. The final decision of the Board shall be shown on record of the case as entered into the minutes of the Board and signed by the clerk upon approval. Such record shall show the reasons for the determination, with a summary of the evidence introduced and the findings of fact by the Board. Where a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the appeal was based and which the Board finds to exist. The decision may reverse or affirm, wholly or partly or modify the order, requirement, decision, or determination appealed from. Where a special use permit is granted, the record shall state in detail any facts supporting the findings required to be made prior to issuance of such permit. The record shall state in detail what, if any, conditions and safeguards are imposed by the Board in connection with the granting of the special use permit.

D.

Expiration of permits. Unless otherwise specified, any order or decision of the Board granting a special use permit or a variance shall be perpetually binding upon the property unless subsequently changed or amended by the Board.

E.

Voting on hearings. The Board of Adjustment, by a vote of four-fifths (⅘) of its members, may reverse any order, requirement, decision, or determination of an administrative officer charged with enforcing this Ordinance, or may decide in favor of the applicant a matter upon which the Board is required to pass under the Ordinance, or may grant a variance from the provisions of this Ordinance.

F.

Public record of decision. The decisions of the Board, as filed in the minutes, shall be a public record, available for inspection at all reasonable times.

(Ord. of 4-20-21)

An appeal stays all proceedings and accrual of any fines assessed in furtherance of the action appealed, unless the officer from whom the appeal is taken certifies to the Board of Adjustment that by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property. In such case, proceedings shall NOT be stayed except by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, of notice from whom the appeal is taken and on due cause shown.

(Ord. of 4-20-21)

The Zoning Board of Adjustment shall have the powers and duties listed in this section.

The Board shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Administrator in the enforcement of this Ordinance.

The Board may permit a nonconforming use of a building to be changed to another nonconforming use upon a finding by the Board that the new use is more in character with the uses permitted in the district than the previous use (see Section 15.7).

The Board may authorize variances from the terms of the Ordinance as will NOT be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance will, in an individual case, result in unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety secured, and substantial justice done.

In granting a variance, the Board may attach thereto such conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable in furtherance of the purpose of this ordinance. If a variance for the construction, alteration or use of property is granted, such construction, alteration or use shall be in accordance with the approved site plan.

The Board of Adjustment shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.

A.

Zoning and Subdivision Requirements. These requirements shall apply to all regulations in the following areas:

•

Zoning

•

Subdivision

•

Watershed

•

Airport

The Board of Adjustment shall make the findings required below, taking into account the nature of the proposed request, the existing use of land in the vicinity and the probable effect of the proposed request upon traffic conditions in the vicinity, if applicable. No variance shall be granted unless the Board of Adjustment finds all of the following in the affirmative:

1.

Unnecessary hardship would result from the strict application of the regulation. 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 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 shall not be regarded as a self-creating hardship; and

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.

B.

Additional watershed requirements

1.

Iredell County shall notify and allow a reasonable comment period for all other local governments having jurisdiction in the designated watershed where the variance is being considered.

The Watershed Administrator shall notify in writing each local government having jurisdiction in the watershed and the entity using the water supply for consumption. Such notice shall include a description of the variance being requested. Local governments receiving notice of the variance request may submit comments to the Watershed Administrator prior to a decision by the Board of Adjustment. Such comments shall become a part of the record of proceedings of the Board of Adjustment.

2.

Variance issued in accordance with this section shall be considered a Watershed Protection Permit and shall expire if a building permit or watershed occupancy permit for such use is not obtained by the applicant within six (6) months from the date of the decision.

3.

If the application calls for the granting of a major variance, and if the Board of Adjustment decides in favor of granting the variance, the Board shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include:

a.

The variance application;

b.

The hearing notices;

c.

The evidence presented;

d.

Motions, offers of proof, objections to evidence, and rulings on them;

e.

Proposed findings and exceptions;

f.

The proposed decision, including all conditions proposed to be added to the permit.

4.

The preliminary record shall be sent to the Environmental Management Commission for its review as follows:

a.

If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that (1) the property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted, and (2) the variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approve the variance as proposed or approve the proposed variance with conditions and stipulations. The Commission shall prepare a Commission decision and send it to the Board of Adjustment. If the Commission approves the variance as proposed, the Board shall prepare a final decision granting the proposed variance. If the Commission approves the variance with conditions and stipulations, the Board shall prepare a final decision, including such conditions and stipulations, granting the proposed variance.

b.

If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that (1) the property owner can secure a reasonable return from or make a practical use of the property without the variance or (2) the variance, if granted, will result in a serious threat to the water supply, then the Commission shall deny approval of the variance as proposed. The Commission shall prepare a Commission decision and send it to the Board of Adjustment. The Board shall prepare a final decision denying the variance as proposed.

C.

Floodplain Requirements. See Appendix G, Article 4, Section E. Variance Procedures.

(Ord. of 4-20-21; Ord. of 10-18-21)

The Board shall hear special use permit request to determine whether appropriate conditions and safeguards, as authorized in Chapter 2, are met. A. B. C. D.

A.

In granting a Special Use Permit the Board shall make the following affirmative findings:

1.

That the Special Use will NOT materially endanger the public health or safety, if located where proposed and developed according to the plan as proposed;

2.

That the Special Use meets all required conditions and specifications;

3.

That the Special Use will NOT substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and

4.

The Special Use will be in harmony with the area in which it is to be located and will be in general conformity with the plan of development of the county

B.

In granting a Special Use Permit, the Board may impose such additional restrictions and requirements upon such Permit as it may deem necessary in order that the purpose and intent of this Ordinance are served, public welfare secured and substantial justice done. If all requirements and conditions are accepted by the applicant, the Board shall authorize the issuance of the Special Use Permit, otherwise the Permit shall be denied. Any Special Use Permit so authorized shall be perpetually binding upon the property included in such Permit unless subsequently changed or amended by the Board, as provided for in this Chapter.

C.

The Board may change or amend any Special Use Permit, after a public hearing and subject to the same consideration as provided for in this Chapter for the original issuance of Special Use Permit.

No proposal to amend or change any Special Use Permit shall be considered within twelve (12) months of the date of the original authorization of such Permit or within twelve (12) months of hearing of any previous proposal to amend or change any such Permit.

D.

Minor Changes & Modifications. The Planning Director shall have the delegated authority to approve minor changes on the site plan for Special Use Permits provided they are in harmony with the action of the Board of Adjustment. A minor change shall mean:

1.

Movement of structures, parking areas, or other activity areas provided they are not closer to an existing residence or one under construction;

2.

Changes in landscaping types provided they have not been worked out by neighbors or conditions of approval and they meet the requirements in Chapter 5;

3.

Changes in location of the driveway connection provided it is not closer to an existing residence or one under construction and it meets the requirements in Chapter 10. If NCDOT requires the change, then this section may not apply.

(Ord. of 4-20-21)

Editor's note— An Ordinance adopted Dec. 5, 2017, §§ 9, 10, repealed § 12.2.5, which pertained to erosion control plan appeals and derived from the Original Code. See Appendix H regarding soil erosion and sediment control.

Any person or persons, jointly or severally, aggrieved by any decision of the Board, any taxpayer, or any officer, department, board or bureau of the jurisdiction of this Ordinance may present to Superior Court Division of the General Courts of Justice of the State of North Carolina a petition duly verified setting forth that such decision is illegal, in whole or in part, specifying the ground of illegality, whereupon such decision of said Board shall be subject to review by certiorari as provided by law within thirty (30) days after the decision is filed in the office of the Board.

The Board of Adjustment members are generally immune from any liability for the decisions the Board makes.