Montgomery County Unincorporated
City Zoning Code

1.1.

Creation of Board and terms of Members. There shall be and is hereby created a Board of Adjustment, also known as the Watershed Review Board, hereinafter call the Board, consisting of five (5) members. The members of the Board shall be residents of the zoned area of the county, shall be appointed by the Board of Commissioners, and shall have initial terms of office as follows: One (1) member appointed for a term of one (1) year, two (2) members appointed for terms of two (2) years, and two (2) members for terms of three (3) years. At the completion of the initial term of office for each member, all additional appointments to vacancies of the Board shall be for three-year terms. Two (2) alternate members, meeting residency requirements for regular members, may be appointed by the County Board to serve on the Board in the absence, for any cause, of any regular member. Alternate members shall have an initial term of one (1) year. At completion of the initial term of office, all additional appointments shall be for three-year-terms. The Board of County Commissioners may appoint the seated members of the Planning Board to also serve as members of the Board of Adjustment. In the absence of the Board of Adjustment, the County Commissioners will serve as the Board of Adjustment, upon which all conditions, procedures and terms follow Commissioners guidelines.

1.2.

Officers and Meetings. The Board shall elect one (1) of its members as chairman and shall appoint a secretary and such other subordinates as may be authorized by the County Board. The Board shall draw up and adopt the rules of procedures under which it will operate. Meetings of the Board shall be held at the call of the chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote, indicating such fact, and also keep records of its examination and any other official action.

2.1.

Filing an Appeal. Appeals from the enforcement and interpretation of this Ordinance and requests for variances shall be filed with the Zoning Administrator specifying the grounds thereof and, in the case of appeals, shall be filed within thirty (30) days after the decision by the Zoning Administrator which is being appealed. The Zoning Administrator shall transmit to the Board all applications and records pertaining to such appeals and variances. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life and property, in which case proceedings shall not be stayed otherwise that by a restraining order, which may be granted by the Board or by a court of record on application or notice to the officer from whom the appeal is taken and due cause shown.

2.2.

Hearing of Appeal. After receipt of notice of an appeal, the Board Chairman shall schedule the time for a hearing which shall be at a regular or special meeting within thirty (30) days from the filing of such notice of appeal.

2.3.

Notice. At least one (1) week prior to the date of the hearing, the county shall furnish adjoining property owners with written notice of the hearing and notice of the hearing will be published according to Article II, Section 4.

2.4.

Fees for Appeals, Variances, or Special Use Permits. A nonrefundable fee for each application shall be paid to the county at the time of filing according to Article II, Section 7.

The Board of Adjustment shall have the following powers and duties:

3.1.

Administrative Review. To hear and decide appeals where it is alleged by the applicant that there is error in order, requirement, permit, decision, determination, or refusal made by the Zoning Administrator in the carrying out or enforcement of any provision of this Ordinance. A concurring vote of four-fifths (⅘) of the members of the Board shall be necessary to reverse, wholly or partly, any such decision.

3.2.

Zoning Variances. When, owing to special conditions, unnecessary hardships would result from carrying out the strict letter of this Ordinance, the Board of Adjustment shall vary any provisions of this Ordinance upon showing all of the following:

1.

Unnecessary hardship would result in 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.

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.

3.

The hardship did not result from actions taken by the applicant or property owner. The act of purchasing property with the knowledge that the circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.

4.

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

Pursuant to G.S. 160D-705(d), no change in permitted use may be authorized by a variance. A non-conforming use of neighboring land, structures, or buildings in the same district, or permitted uses of land, structures, or buildings in other districts, may not be considered grounds for the issuance of a variance.

Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Violation of the terms under which a variance was granted shall be deemed a violation of this Ordinance and punishable under Article I, Section 9, and the variance may be revoked through the same means that it was granted.

In granting a variance, the Board of Adjustment shall make findings that the requirements of this article have been met. The Board of Adjustment shall make and distribute a finding pursuant to G.S. 160D-406.

Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this section.

Applications for variance request shall be filed no later than twenty (20) working days prior to the meeting at which the application is to be considered. A nonrefundable fee according to the adopted fee schedule shall be paid to Montgomery County for each variance application.

Within sixty (60) days of approval of a variance, the Planning Director or their designee shall cause a record of the approval of the variance request as dictated by the Board of Adjustment and the required findings of fact to be recorded with the Montgomery County Register of Deeds office. Further, the Montgomery County Tax Department shall be notified of the relevant book and page of the approval record.

If an approval of a variance is appealed pursuant to G.S. 160D-405, the filing of approval documents as stipulated above shall take place at the conclusion of the appeal.

3.3.

Special Use Permits. No special use permits shall be granted by the Board of Adjustment unless such Board shall find:

A.

That the establishment, maintenance, or operation of the special use permits will not be detrimental to or endanger the public health, safety, moral, comfort, or general welfare;

B.

That the special use permits will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purpose already permitted, nor substantially diminish and impair property values within the neighborhood;

C.

That the establishment of the special use permits will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;

D.

That the exterior architectural appeal and functional plan of any proposed structure will not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of the applicable district, as to cause a substantial depreciation in the property values with the neighborhood;

E.

That adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided;

F.

That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets; and

G.

That the special use permits shall, in all other respects, conform to the applicable regulations of the district in which it is located, except as such regulations may in each instance, be modified by the Board of Adjustment

All special use permits will be subject to the conditions outlined in subject to the conditions contained in Article V.

3.4.

Watershed Protection Variances. For all proposed watershed variances, the county shall notify and allow a reasonable comment period for all other local governments having jurisdiction within the watershed as well as the county, municipalities, or private water companies, as user of the water supply.

The Board may authorize minor variances in those areas relating to the state water supply watershed protection rules if the request meets the conditions for zoning variances given in Section 3.2. A minor watershed protection variance is defined as the reduction of the required vegetative buffer of up to ten percent (10%). Residential density and built upon area requirements cannot be granted minor variances.

Any variance requested which meets the conditions for a zoning variance and is greater than ten percent (10%) reduction in the vegetative buffer or requests an increase in the residential density or built upon area shall be heard by the Board of Adjustment. A decision by the Board to deny the major variance shall be final. Appeal shall be to a court of competent jurisdiction as provided in Section 4. If it decides in favor of the major 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 of them;

E.

Proposed findings and exceptions; and

F.

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

The preliminary record shall be sent within thirty (30) days 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 (a) the property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted, and (b) the variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approved 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 Watershed Review Board. If the Commission approves the variance as proposed, 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 (a) the property owner can secure a reasonable return from or make a practical use of the property without the variance or (b) 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 Watershed Review Board. The Board shall prepare a final decision denying the variance as proposed.

Any zoning variance granted by the Board must be recorded with the Montgomery County Register of Deeds office by the property owner.

(Ord. No. TA-04-2017, 10-17-2017)

Appeal from the decision of the Board of Adjustment may be made to the Montgomery County Superior Court within thirty (30) days after the decision is made by the Board, but not thereafter.

Board Members: No member of the Board shall seek to influence a decision, participate in any action, or cast a vote involving any matter that is before the Board 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.

1.

A member who determines there exists a conflict of interest shall declare the existence of a conflict and shall refrain from any deliberation on the matter.

2.

A member who believes there may exist a conflict of interest shall declare his or her possible conflict and ask for a determination by the Board. A majority vote of the Board shall determine whether or not a conflict of interest exists.

3.

A challenge of the existence of a conflict of interest or a challenge of an undisclosed conflict of interest may be filed by any interested party with the Board. Such a challenge may be an appeal for a review of the finding of the Board or may be for the purpose of alleging an undeclared conflict of interest. Any challenges made to the Board shall be supported by competent evidence and shall be submitted to a property convened meeting of the Board. The Board shall hear all evidence and shall, by majority vote, make the final determination as to the existence of a conflict of interest.

4.

Withdrawal from participation in any matter is necessary only in those specific cases in which a conflict arises. There shall be no attempt to exclude entire categories of considerations because of the business or profession with which a member is associated.

The Chairman of the Board of Adjustment is authorized to administer oaths or affirmations to any witnesses in any quasi-judicial matter coming before the Board.

Appeal from the decision of the Board of Adjustment may be made to the Montgomery County Superior Court within thirty (30) days after the decision is made by the Board, but not thereafter.