Mount Holly City Zoning Code
CHAPTER 12
ESTABLISHMENT OF THE BOARD OF ADJUSTMENT
§ 12.1 BOARD ESTABLISHED.
There shall be and is hereby created a Board of Adjustment (hereafter referred to as the “Board”), consisting of five regular members and four alternate members, each to be appointed for three-year terms. In appointing the original members or in the filling of vacancies caused by the expiration of the terms of existing members, the City Council may appoint certain members for less than three years so that the terms of all the members shall not expire at the same time. Five regular members shall reside within the Mount Holly city limits and be appointed by the City Council from the regular membership of the Planning Commission. The Board shall also consist of four alternate members, which shall be appointed from the remaining membership of the nine- member Planning Commission. The length of terms and the manner of appointment for members of the Board shall coincide with their terms on the Planning Commission. Alternate members may attend all meetings of the Board, but shall serve, participate and vote only in the absence of a regular member, except for procedural matters as described in the Rules of Procedure. During the absence of any regular member, an alternate member, regardless of his or her residency, shall serve and may exercise all the powers and duties of a regular member.
(Ord. passed 5-13-1996)
§ 12.2 MEETINGS AND PROCEDURES.
The Board shall adopt and abide by rules of procedure which shall govern the meeting schedule, election of officers, voting, quorums, attendance and general conduct of meetings. The rules of procedure shall be in accord with the North Carolina General Statutes and shall be kept in the office of the Zoning Enforcement Officer for public information. All meetings are open to the public.
(Ord. passed 5-13-1996)
§ 12.3 POWERS AND DUTIES.
The Board shall hear and decide all matters upon which it is required to pass under any statute or ordinance for special use and permits, requests for variances, appeals of decisions of administrative officials charged with enforcement of the ordinance, herein referred to as the Zoning Enforcement Officer, and appeals as outlined in Chapter 4, Buildings, and Chapter 9, Housing, of the City of Mount Holly Code of Laws. The term DECISION, as used in this section, includes any final and binding order, requirement or determination. The Board shall follow quasi- judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances or any other quasi-judicial decision.
(Ord. passed 5-13-1996)
§ 12.4 NOTICE OF EVIDENTIARY HEARING.
Notice of evidentiary hearings conducted, pursuant to this section, shall be mailed to the person or entity whose appeal, application or request is the subject of the hearing; to the owner of the property that is the subject of the hearing, if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other person entitled to receive notice as provided by the Zoning Ordinance. In the absence of evidence to the contrary, the city may rely on the Gaston County tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the city shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street of highway right-of-way.
(Ord. passed 5-13-1996)
§ 12.5 FILING AND NOTICE FOR AN APPEAL.
The Board shall hear and decide appeals from and review any order, requirement, decision or determination made by the Zoning Enforcement Official, the official charged with the enforcement of this ordinance. The Board may also hear appeals arising out of any other ordinance that regulates land use or development, pursuant to the conditions outlined in this section.
(A) Any person who has standing, as defined under G.S. § 160D-1402(c), may appeal a decision to the Board. Appeals from the enforcement and interpretation of this ordinance, shall be filed with the City Clerk, specifying the grounds for the appeal.
(B) The Zoning Enforcement Official, who made the decision, shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail or by first-class mail.
(C) The owner or other party shall have 30 days from receipt of the written notice, within which to file an appeal. Any other person with standing to appeal shall have 30 days from receipt from any source or constructive notice of the decision, within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. § 160D-403(b) by first-class mail shall be deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.
(D) It shall be conclusively presumed that all persons 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 six inches in height and identifying the means to contact a Zoning Enforcement Official for information about the decision is prominently posted on the property that is the subject of the decision, provided that the sign remains on the property for at least ten days. Posting of signs is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision. The posting of the property for constructive notice is not a requirement of the ordinance, but it shall serve as a form of constructive notice by following the procedures outlined herein.
(E) The Zoning Enforcement 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. The Zoning Enforcement Official shall also provide a copy of the record to the to the appellant and to the owner of the property that is subject of the appeal, if the appellant is not the owner.
(F) An appeal of a notice of violation or other enforcement order stays all enforcement of the action appealed from and accrual of any fines assessed unless the Zoning Enforcement Official, who made the decision, certifies to the Board 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 property or because the violation is transitory in nature, lasting a short-time or temporary, a stay would seriously interfere with enforcement of the ordinance. In that case, enforcement proceedings shall not be stayed, except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the Zoning Enforcement Official, a request for an expedited hearing of the appeal, and the Board shall meet to hear the appeal within 15 days after such request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the ordinance, shall not stay the further review of an application for development approvals to use such property; in these situations, the appellant or city may request and the Board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
(G) Subject to division (F) above, appeals shall be taken within times prescribed by the Board. The Board shall fix a reasonable time for the hearing of the appeal, give due notice thereof to the parties and decide it within a reasonable time.
(H) The Zoning Enforcement Official, who made the decision, shall be present at the hearing as a witness. The appellant shall 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 shall continue the hearing. The Board may reverse or affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision or determination that ought to be made. The Board shall have all of the powers of the Zoning Enforcement Official who made the decision.
(I) When hearing an appeal pursuant to G.S. § 160D-947, concerning the designation of a landmark or historic district and certificate of appropriateness, or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in G.S. § 160D-1402(j).
(J) The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution.
(Ord. passed 5-13-1996)
§ 12.6 SPECIAL USE PERMITS.
(A) The Board shall hear and decide, in particular cases, and subject to appropriate conditions and safeguards, special use permits as authorized by the district regulations in Ch. 6 of this ordinance. Reasonable and appropriate conditions and safeguards may be imposed upon these permits by the Board.
(B) 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) Minor modifications to special use permits that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively by the Zoning Enforcement Official. Any other modification or revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit. If multiple parcels of land are subject to a special use permit, the owners of individual parcels may apply for permit modification so long as the modification would not result in other properties failing to meet the terms of the special use permit or regulations. Any modifications approved shall only be applicable to those properties whose owners apply for the modification. If the permit or any modification is approved, then the special use permit is required to be recorded with the register of deeds by the applicant. Appeals of these decisions shall be followed under § 15.6 of this ordinance.
(D) All decisions rendered by the Board of Adjustment regarding special use permits (approved and denied cases) will be filed in the Gaston County Register of Deeds via a prepared order developed by city staff. The city will be responsible for recording these orders and will charge a fee that is equal to the fee charged by the Gaston County Register of Deeds to record deeds and other real estate documents, which will be added to the application fee associated with special use permits, and which will be paid by the applicant upon submittal.
(Ord. passed 5-13-1996; Ord. passed 6-10-2024)
§ 12.7 VARIANCES.
(A) When unnecessary hardships would result from carrying out the strict letter of the Zoning Ordinance, the Board shall vary any of the provisions of the ordinance, upon a showing of all of the following:
(1) 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;
(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, being 42 U.S.C. §§ 3601 et seq., for a person with a disability;
(3) The hardship did not result from actions taken by the applicant or 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; and
(4) 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.
(B) No change in permitted uses may be authorized by a variance. Appropriate conditions may be imposed on any variance; provided that, the conditions are reasonably related to the variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this section.
(C) In granting the 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.
(D) Minor modifications that do not require a variance by the Board of Adjustment and are permitted by the Planning Department Director or designee are as follows: when a lot of record as defined in § 3.4 of this ordinance with an existing structure constructed prior to the adoption of this ordinance is subdivided that creates new lots that meet the minimum lot size requirements, but the lot with the existing structure meets the minimum lot size and not all of the setbacks. Appeals shall follow § 15.6 of this ordinance.
(E) All decisions rendered by the Board of Adjustment regarding variances (approved and denied cases) will be filed in the Gaston County Register of Deeds via a prepared order developed by city staff. The city will be responsible for recording these orders and will charge a fee that is equal to the fee charged by the Gaston County Register of Deeds to record deeds and other real estate documents, which will be added to the application fee associated with variances, and which will be paid by the applicant upon submittal.
(Ord. passed 5-13-1996; Ord. passed 6-10-2024)
§ 12.8 VARIANCES FROM WATERSHED OVERLAY DISTRICT REQUIREMENTS.
(A) The Board of Adjustment may authorize variances from the specific requirements of the Watershed Overlay Districts in the same manner and subject to the same procedures and requirements of this chapter for authorizing other variances; provided that:
(1) The notice required in § 12.4 of this chapter shall also be mailed by first class mail to all other local governments having watershed regulation jurisdiction within the particular watershed where the variance is requested and to each entity using that water supply for consumption; and
(2) If the variance request is for a major variance as defined herein, the following procedure shall apply. If the Board of Adjustment decides in favor of granting the major variance, the Board shall then prepare a preliminary record of the hearing and submit it to the North Carolina Environmental Commission (EMC) for review and action. If the Board does not decide in favor of granting the major variance such unfavorable action shall constitute denial.
(B) In the event of favorable action by the Board on a major variance, the Board shall cause the record of their hearing to be promptly submitted to the EMC. The record of the hearing shall include, but not be limited to:
(1) The variance application;
(2) The hearing notice;
(3) The evidence presented;
(4) Motions, offers of proof, objections to evidence and rulings on them;
(5) Findings and exceptions; and
(6) The action of the Board including any conditions proposed.
(C) If the EMC approves the major variance or approves with conditions or stipulations added, the EMC shall prepare a decision which authorizes the Board of Adjustment to issue a final decision which would include any conditions or stipulations added by the EMC. If the EMC denies the major variance, then the EMC shall prepare a decision and transmit it to the Board of Adjustment. The Board shall then prepare a final decision denying the major variance.
(D) All decisions rendered by the Board of Adjustment regarding variances from watershed overlay district requirements (approved and denied cases) will be filed in the Gaston County Register of Deeds via a prepared order developed by city staff. The city will be responsible for recording these orders and will charge a fee that is equal to the fee charged by the Gaston County Register of Deeds to record deeds and other real estate documents, which will be added to the application fee associated with variances from watershed overlay district requirements, and which will be paid by the applicant upon submittal.
(Ord. passed 5-13-1996; Ord. passed 6-10-2024)
§ 12.9 INTERPRETING WATERSHED OVERLAY DISTRICT BOUNDARIES.
(A) The Board of Adjustment, in addition to its authority in deciding appeals, shall have the power to make adjustments to the exterior boundary of Watershed Overlay Districts by removing all or part of a piece of property from a Watershed Overlay District where it finds that all or part of such property actually lies outside the drainage area of such watershed. In any case where there is a dispute as to whether a property or any part of a property that is shown on the Official Zoning Map as being in a Watershed Overlay District actually drains to that watershed, the Board of Adjustment shall, upon appeal by the owner, make a determination as to the facts of the matter as it affects the subject property.
(B) In determining whether a property or part of a property drains to the watershed as indicated on the map, the Board of Adjustment shall base its determination on actual field conditions of the property as determined by topographical conditions. In making its determination, the Board of Adjustment may require the appellant to produce relevant expert testimony and exhibits. After hearing such appeal, the Board shall find that the subject property (all or part) is either in the designated watershed or out of the designated watershed. If the Board shall find that the subject property is out of the designated watershed, the Board shall order the map to be adjusted to show the subject property to be outside the designated watershed. In making such order, the Board of Adjustment shall designate the watershed in which the subject property is located. If such designation causes the subject property to be located in another Watershed Overlay District, the order shall cause the map to be adjusted to show the same. Any such map adjustments shall be maintained and reported as required by § 5.15 of this ordinance.
(Ord. passed 5-13-1996)
§ 12.10 WATERSHED DENSITY AVERAGING CREDITS.
As authorized by G.S. § 143-214. 5, the Board of Adjustment, in addition to its authority as the watershed review board in deciding appeals and making adjustments to the exterior boundary of Watershed Overlay Districts, per § 12.8 and § 12.9, respectively, shall have the authority to approve applications for density averaging for the WS-IV Lake Wylie Protected and Critical Watersheds, in accordance with § 5.15(F). All decisions rendered by the Board of Adjustment regarding density averaging cases (approved and denied cases) will be filed in the Gaston County Register of Deeds via a prepared order developed by city staff, per § 5.15(F)(3)(f). The city will be responsible for recording these orders and will charge a fee that is equal to the fee charged by the Gaston County Register of Deeds to record deeds and other real estate documents, which will be added to the application fee associated with density averaging requests, and which will be paid by the applicant upon submittal.
(Ord. passed 10-10-2022; Ord. passed 6-10-2024)
§ 12.11 ZONING PERMITS WITH VESTED RIGHTS.
The Board of Adjustment shall hear and decide zoning permits with vested rights in accordance with § 15.3 of this ordinance.
(Ord. passed 5-13-1996)
§ 12.12 VOTING.
(A) 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 under G.S. § 160D-109(d) 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.
(B) A member of any board exercising quasi-judicial functions, pursuant to this chapter, 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 violations of due process 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 or herself, the remaining members shall, by majority vote, rule on the objection.
(Ord. passed 5-13-1996)
§ 12.13 DECISIONS.
(A) 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. A quasi-judicial decision is effective upon filing the written decision with the Clerk to the Board. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail or first-class mail to the applicant, landowner and any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person required to provide notice shall certify to the city that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.
(B) 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) (1) Administrative materials. The administrator or staff to the Board shall transmit to the Board all applications, reports and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the Board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing.
(2) Presentation of evidence.
(a) The applicant, the city, and any person who would have standing to appeal the decision under G.S. § 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material and substantial evidence that is not repetitive as allowed by the Board.
(b) Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board. The Board Chair shall rule on any objections, and the Chair’s rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. § 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.
(3) Appearance of official, new issues. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the city, shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in a 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 shall continue the hearing.
(Ord. passed 5-13-1996)
§ 12.14 APPEAL FROM THE BOARD OF ADJUSTMENT.
Every quasi-judicial decision shall be subject to review by Gaston County Superior Court by proceedings in the nature of certiorari pursuant to G.S. § 160D-1402. A petition for review shall be filed with the Gaston County Clerk of Superior Court within 30 days after the decision is effective or after a written copy thereof is given in accordance with § 12.12 of this chapter. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.
(Ord. passed 5-13-1996)
§ 12.15 OATHS.
The Chair of the Board or any other member acting as Chair, and the Clerk to the Board are authorized to administer oaths to witnesses in any matter coming before the Board. Any person who, while under oath during a proceeding before the Board of Adjustment, willfully affirms falsely is guilty of a Class 1 misdemeanor.
(Ord. passed 5-13-1996)
§ 12.16 SUBPOENAS.
The Board of Adjustment making a quasi-judicial decision through the Chair, or in the Chair’s absence, anyone acting as Chair, may subpoena witnesses and compels the production of evidence. To request issuance of a subpoena, the applicant, the city, and person with standing under G.S. § 160D-1402(c) 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 or she 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 immediately appealed to the full Board of Adjustment. If a person fails or refuses to obey a subpoena, issued pursuant to this section, the Board of Adjustment or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena by obeyed, and the Court shall have jurisdiction to issue these orders after notice to all proper parties.
(Ord. passed 5-13-1996)