Mills River City Zoning Code
ZONING BOARD
OF ADJUSTMENT AND TOWN COUNCIL
§ 154.175 ESTABLISHMENT OF ZONING BOARD OF ADJUSTMENT.
A Zoning Board of Adjustment is hereby established. The Board
consist of 5 regular members, who
be citizens of the Town of Mills River and
be appointed by the Mills River Town Council for overlapping terms of 3
. The Board
also consist of as many alternate members as the
deems appropriate, who
be citizens of the Town of Mills River and who
also serve overlapping 3
terms. Alternate members
serve in the absence of any regular member and, while serving,
have and exercise all the powers and duties of a regular member of the Zoning Board of Adjustment. The Mills River Town Council may, by resolution duly adopted, establish guidelines for appointment of regular and/or alternate members, including, but not limited to, the establishment of representative districts for Zoning Board of Adjustment membership. Initial appointment of regular members
be as follows: 1 member for a term of 3
, 2 members for terms of 2
and 2 members for terms of 1
. Initial appointment for alternate members
be staggered in a like manner. Any vacancy in the membership
be filled for the unexpired term in the same manner as the initial appointment. Members
serve without pay but may be reimbursed for any expenses incurred while representing the Zoning Board of Adjustment.
(Ord. passed 3-1-2004; Am. Ord. passed 7-29-2004; Am. Ord. passed 10-13-2005)
§ 154.176 PROCEEDINGS OF ZONING BOARD OF ADJUSTMENT.
The Zoning Board of Adjustment
elect a Chairperson and a Vice Chairperson from its members, who
serve for 1
or until reelected or until their successors are elected. The Board
appoint a Secretary, who may be a town
, an employee of the town, a member of the Planning Board or a member of the Zoning Board of Adjustment. The Board
adopt rules and bylaws in accordance with the provisions of this chapter and of Chapter 160D of the North Carolina General Statutes (G.S. § 160D-302). Meetings of the Board
be held at the call of the Chairperson and at the other times as the Board may determine. The Chairperson or, in his or her absence, the Vice Chairperson may administer
and compel the attendance of witnesses by subpoena. All hearings held by the Board
be open to the public.
(Ord. passed 3-1-2004; Am. Ord. passed 7-29-2004; Am. Ord. passed 10-13-2005; Am. Ord. 2021-06, passed 4-22-2021)
§ 154.177 DECISIONS OF ZONING BOARD OF ADJUSTMENT.
The concurring vote of 4/5 of the members of the Zoning Board of Adjustment
be necessary to approve a variance. The concurring vote of a majority of the members
be required to decide any other quasi-judicial matter, to determine an appeal to the Zoning Board of Adjustment in the nature of certiorari or any other matter upon which the Zoning Board of Adjustment is required to act. For purposes of this chapter, vacant positions on the Zoning Board of Adjustment and members who are disqualified from voting on quasi-judicial matters
not be considered members of the Zoning Board of Adjustment for calculation of the requisite majority if there are no qualified alternates available to take the place of such members. On all appeals, applications and other matters brought before the Board of Adjustment, the Board
inform in writing all parties involved of its decisions and the reasons thereof. The Zoning Board of Adjustment is authorized to interpret the
and pass upon disputed questions of lot lines or district boundary lines and other similar questions as they arise in the administration of this chapter.
(Ord. passed 3-1-2004; Am. Ord. passed 7-29-2004; Am. Ord. passed 10-13-2005; Am. Ord. 00083, passed 10-10-2013; Am. Ord. 00094, passed 12-11-2014)
§ 154.178 APPEALS OF ZONING BOARD OF ADJUSTMENT.
Appeals to the Zoning Board of Adjustment may be taken by any person aggrieved or by any official or board of the Town of Mills River affected by any action of the
. The appeal
be taken within 30 days, as provided by the rules of the Board, by filing with the
and with the Secretary of the Zoning Board of Adjustment a notice of appeal and specifying the grounds thereof. The
forthwith transmit to the Board all papers constituting the record upon which the action appealed was taken. An appeal stays all proceedings in furtherance of the action appealed unless the
certifies to the Zoning Board of Adjustment, after the notice of appeal
have been filed with him or her, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or
. In such case, proceedings
not be stayed other than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application on notice to the
and on due cause shown.
(Ord. passed 3-1-2004; Am. Ord. passed 7-29-2004; Am. Ord. passed 10-13-2005)
§ 154.179 POWERS AND DUTIES OF ZONING BOARD OF ADJUSTMENT.
The Zoning Board of Adjustment
have the
powers and duties:
(A) Administrative review. To hear and decide appeals where it is alleged there is error in an order, requirement, decision, determination or interpretation made by the
in the enforcement of this chapter pursuant to any of the
:
(1) Any
who has standing under G.S. § 160D-1402(c) or the town
appeal a decision to the board of adjustment. An appeal is taken by filing a notice of appeal with the Town Clerk. The notice of appeal
state the grounds for the appeal.
(2) The official who made the decision
give
notice to the
of the
that is the subject of the decision and to the party who sought the decision, if different from the
. The
notice
be delivered by personal delivery, electronic mail, or by first-class mail.
(3) The
or other party
have 30 days from receipt of the
notice within which to file an appeal. Any other
with standing to appeal
have 30 days from receipt from any source of actual or constructive notice of the decision within which to file an appeal.
(4) It
be conclusively presumed that all
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 6 inches high and identifying the means to contact an official for information about the decision is prominently posted on the
that is the subject of the decision, provided the sign remains on the
for at least 10 days. Posting of signs is not the only form of constructive notice. Any such posting
be the responsibility of the landowner or applicant. Verification of the posting
be provided to the official who made the decision. Absent an ordinance provision to the contrary, posting of signs
not be required.
(5) The official who made the decision
transmit to the board all documents and exhibits constituting the record upon which the action appealed from is taken. The official
also provide a copy of the record to the appellant and to the
of the
that is the subject of the appeal if the appellant is not the
.
(6) An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the official who made the decision certifies to the board of adjustment after notice of appeal has been filed that because of the facts stated in an affidavit, a stay would cause imminent peril to life or
or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the ordinance. In that case, enforcement proceedings
not be stayed except by a restraining order, which
be granted by a court. If enforcement proceedings are not stayed, the appellant
file with the official a request for an expedited hearing of the appeal, and the board of adjustment
meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a
or otherwise affirming that a proposed use of
is consistent with the ordinance
not stay the further review of an application for
or permissions to use such
; in these situations the appellant
request and the board may grant a stay of a final decision of
applications or
affected by the issue being appealed.
(7) Subject to the provisions of subdivision (6) of this subsection, the board of adjustment
hear and decide the appeal within a reasonable time.
(8) The official who made the decision
be present at the hearing as a witness. The appellant
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
continue the hearing. The board of adjustment
reverse or affirm, wholly or partly, or
modify the decision appealed from and
make any order, requirement, decision, or determination that ought to be made. The board
have all the powers of the official who made the decision.
(9) When hearing an appeal pursuant to G.S. Chapter 160D, Article 4 or any other appeal in the nature of certiorari, the hearing
be based on the record below and the scope of review
be as provided in G.S. § 160D-1402(c).
(10) The parties to an appeal that has been made under this subsection
agree to mediation or other forms of alternative dispute resolution. The ordinance
set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
(B) Variances. To authorize, upon appeal, variations or modifications of any regulation or provision of this chapter relating to the dimensional requirements, construction or alteration of
or other provisions, so that the spirit of this chapter is observed, public safety and welfare secured and substantial justice done; however, the Zoning Board of Adjustment
not
a use of land,
or
which is not permitted by right or by a in the district involved.
(1) The Zoning Board of Adjustment
issue a variance only on the basis of affirmative findings of fact for all of the
criteria:
(a) There are practical difficulties or unnecessary hardships in carrying out the strict letter of this chapter, as demonstrated by:
(b) The hardship results from conditions that are peculiar to the
, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the
or the general public,
not be the basis for granting a variance.
(c) The hardship did not result from actions taken by the applicant or the
. The act of purchasing
with knowledge that circumstances exist that
justify the granting of a variance
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 is secured, and substantial justice is achieved. No change in permitted uses
be authorized by variance.
(2) Appropriate conditions
be imposed on any variance, provided that the conditions are reasonably related to the variance.
(C) Minor Special Uses; conditions governing application. To grant, in particular cases and subject to appropriate conditions and safeguards, permits for Minor Special Uses as authorized by this chapter and set forth as special uses under the various use districts.
(1) The Zoning Board of Adjustment
not grant a
unless and until:
(a) A
application for a
be submitted indicating the section of this chapter under which the
is sought.
(b) A public hearing is held pursuant to § 154.182.
(2) If the Board of Adjustment finds that in the particular case in question, the use for which the
is sought will not adversely affect the health or safety of the
residing or working in the
of the proposed use and will not be detrimental to the public welfare or injurious to
or public improvements in the
, a
may be granted. In granting such a
, the Zoning Board of Adjustment
designate the conditions in connection therewith as will, in its opinion, assure that the proposed use will conform to the requirements and spirit of this chapter.
(3) If at any time after a
has been issued the Board of Adjustment finds that the conditions imposed and agreements made have not been or are not being fulfilled by the holder of a
, the
be terminated and the operation of the use discontinued. If the
is terminated for any reason, it
be reinstated only after a public hearing is held.
(4) The Zoning Board of Adjustment
ask for the submission of a preliminary site plan where a site plan is not required by this chapter.
(5) Before any special use permit is issued, the Zoning Board of Adjustment
make
findings certifying compliance with the specific rules governing the individual special use and that satisfactory provision and arrangement has been made concerning the following where applicable:
(a) Satisfactory ingress and egress to
and proposed
thereon with particular reference to automotive/pedestrian safety and convenience and traffic flow and control.
(b) Provision of off-
parking and loading areas where required, with particular attention to ingress, egress, traffic flow, and the economic, noise, glare and odor effects of the special use on adjoining properties in the area.
(c) Utilities with reference to locations, availability and compatibility.
(d) Buffering with reference to type, location and dimensions.
(e) Playgrounds, open spaces,
, landscaping, access ways and pedestrian ways with reference to location, size and suitability.
(f)
and
with reference to location, size and use.
(D) Temporary uses. Except as otherwise provided in this chapter, the Zoning Board of Adjustment
grant a temporary use
to allow a use not ordinarily permitted in the district, provided that the
has a fixed expiration date, and the applicant satisfies any conditions imposed by the Zoning Board of Adjustment.
(E) Watershed Review Board. Unless Watershed Review Board functions are otherwise designated by the Mills River Town Council, the Mills River Zoning Board of Adjustment hear and decide cases which arise from appeals or perform other proper administrative functions pursuant to the provisions set forth in the Mills River Town Code.
(F) Major Special Uses. The Zoning Board of Adjustment
have the authority to hear and grant, grant with conditions or deny an application for a Major where the Mills River Town Council has determined that the Mills River Town Council cannot hear the application due to conflict of interest, bias, lack of a quorum or other similar reasons and has specifically delegated its authority to hear and decide the application to the Zoning Board of Adjustment by resolution. In such event, the Board of Adjustment
have all of the powers and duties of the
as defined in § 154.180(A). Notice requirements of § 154.182
apply.
(Ord. passed 3-1-2004; Am. Ord. passed 7-29-2004; Am. Ord. passed 10-13-2005; Am. Ord. 00083, passed 10-10-2013; Am. Ord. 2021-06, passed 4-22-2021; Am. Ord. 2022-18, passed 12-8-2022; Am. Ord. 2024-02, passed 2-22-2024)
§ 154.180 POWERS AND DUTIES OF MILLS RIVER TOWN COUNCIL.
(A) Major Special Uses; conditions governing application. The Mills River Town Council have the power to grant, in particular cases and subject to appropriate conditions and safeguards, for Major Special Uses as authorized by this chapter and set forth as under the various use districts.
(1) The Mills River Town Council
not grant a
unless and until:
(a) A
application for a
is submitted, indicating the section of this chapter under which the
is sought.
(b) An evidentiary hearing is held. Notice of the hearing
be given per § 154.182.
(2) If the Mills River
finds that in the particular case in question the use will meet all of the required general standards (see § 154.138) and the applicable specific site standards or site conditions, a
be granted. In granting such a
, the Mills River Town Council
designate the conditions in connection therewith as will, in its opinion, assure that the proposed use will conform to the requirements and spirit of this chapter.
(3) If at any time after a
has been issued the Mills River Town Council finds that the conditions imposed and agreements made have not been or are not being fulfilled by the holder of a
, the
be terminated and the operation of the use discontinued. If a
is terminated for any reason, it
be reinstated only after an evidentiary hearing is held.
(4) The
ask for the submission of any additional information or evidence relevant to the determination of whether the proposed special use meets the applicable requirements of this chapter.
(5) Before any
is issued, the Mills River Town Council
make
findings certifying compliance with the specific rules governing the individual
and that satisfactory provision and arrangement has been made concerning the
where applicable:
(a) Satisfactory ingress and egress to
and proposed
thereon with particular reference to automotive/pedestrian safety and convenience and traffic flow and control.
(b) Provision of off-
parking and loading areas where required, with particular attention to ingress, egress, traffic flow, and the economic, noise, glare and odor effects of the special use on adjoining properties in the area.
(c) Utilities with reference to locations, availability and capability.
(d) Buffering with reference to type, location and dimensions.
(e) Playgrounds, open spaces,
, access ways and pedestrian ways with reference to location, size and suitability.
(f)
and
with reference to location, size and use.
(B) Variances. The
be authorized, upon application, to approve variations or modifications of any regulation or provisions of this chapter for any
so that the spirit of this chapter is observed, public safety and welfare secured and substantial justice done; however, the
not
a use of land,
or
which is not allowed in the district involved.
(1) The
issue a variance only on the basis of affirmative findings of fact for all of the following criteria:
(a) There are practical difficulties or unnecessary hardships in carrying out the strict letter of this chapter, as demonstrated by the following:
1. If the applicant complies with the literal terms of this chapter, he or she cannot secure a reasonable return from, or make a reasonable use of, his or her
.
2. The hardship of which the applicant complains results from unique circumstances related to the applicant’s land.
3. The hardship is not the result of the applicant’s own action.
(b) The variance is in harmony with the general purpose and intent of this chapter and will preserve its spirit.
(c) The variance will secure the public safety and welfare and will do substantial justice.
(2) The existence of a nonconforming use of neighboring land, buildings or structures in the same district or permitted or nonconforming uses in other districts
not constitute a reason for the requested variance.
(3) A notice that describes the variance requested,
location and time and place of the hearing
be published in a newspaper and posted on the
, per § 154.182.
(C) The Mills River Town Council
establish and maintain a fee schedule to recover costs of legal notices, posting the
and notifying adjacent
. These fees
be paid by the applicant before a special use permit is issued. Additionally, the applicant
be required to pay the cost of any special experts or studies which the
and the applicant agree are necessary to evaluate the application.
(D) The Mills River Town Council
have the authority to delegate the power to hear and grant, grant with conditions or deny an application for a Major Special Use Permit to the Zoning Board of Adjustment by resolution, where it determines that the Mills River Town Council cannot hear the application due to conflict of interest, bias, lack of a quorum or other similar reasons. In the event the Board of Adjustment
have all of the powers and duties of the Mills River Town Council as defined in § 154.180(A) above. In adopting such a resolution, the Mills River Town Council
state with specificity the reasons that it could not hear the application.
(E) Voting for special uses. The consideration of a special use permit is a quasi-judicial matter. The granting of a special use permit require the concurring vote of a majority of the . For purposes of this section, vacant positions on the and members who are disqualified from voting on quasi-judicial matters not be considered members of the for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
(Ord. passed 3-1-2004; Am. Ord. passed 7-29-2004; Am. Ord. passed 10-13-2005; Am. Ord. 00083, passed 10-10-2013; Am. Ord. 00094, passed 12-11-2014; Am. Ord. 2021-06, passed 4-22-2021; Am. Ord. 2024-02, passed 2-22-2024)
§ 154.181 APPEALS TO COURT.
Appeals from decisions of the Zoning Board of Adjustment and the Mills River Town Council
be taken to the appropriate court of record as provided by law. Appeals must be filed within 30 days from the date the Zoning Board of Adjustment or the Mills River Town Council issues its order.
(Ord. passed 3-1-2004; Am. Ord. passed 7-29-2004; Am. Ord. passed 10-13-2005)
§ 154.182 NOTICE REQUIREMENTS FOR QUASI-JUDICIAL PUBLIC HEARINGS.
The following
be required notice requirements when conducting quasi-judicial hearings:
(A) Notice of hearings
be mailed by USPS certified mail, no return receipt service, to the
or entity whose appeal, application, or request is the subject of the hearing; to the
of the
that is the subject of the hearing if the
did not initiate the hearing; and to the
of all parcels abutting the parcel of land that is the subject of the hearing. Notice shall be deposited in the mail at least 10 days, but not more than 25 days prior to the date of the hearing.
(B) Notice
be placed via prominently posted notice of hearing on the site that is the subject of the hearing or on an adjacent
or highway right-of-way not less than 10 days, but not more than 25 days prior to the date of the hearing.
(Ord. 00083, passed 10-10-2013; Am. Ord. 2021-06, passed 4-22-2021; Am. Ord. 2024-02, passed 2-22-2024)