3.1.1. The UDO Administrator, to be designated by the Town Manager, is hereby authorized and it shall be his/her duty to enforce the provisions of this Ordinance. This official shall have the right to enter upon any premises regulated by this Ordinance at any reasonable time necessary to carry out his/her duties. If the suspected violation involves areas which cannot be viewed from public areas, an administrative search warrant must be obtained from a magistrate or judge authorizing a reasonable inspection. It is the intention of this Ordinance that all questions arising in connection with enforcement and interpretation shall be presented first to the UDO Administrator. Appeal from his/her decision may be made to the Board of Adjustment. The UDO Administrator may be assisted by other Town staff in performing the duties herein.

3.1.2. In administering the provisions of this Ordinance, the UDO Administrator shall:

3.1.2.1. Make and maintain records of all applications for permits, special uses, and requests listed herein, and records of all permits issued or denied, with notations of all special conditions or modifications involved.

3.1.2.2. File and safely keep copies of all plans submitted, and the same shall form a part of the records of his/her office and shall be available for inspection at reasonable times by any interested party.

3.1.2.3. Transmit to the Planning Board, Town Council, and/or the Board of Adjustment all applications and plans for which their review and approval is required along with a report of his/her recommendations as may be required.

3.1.2.4. Review and approve zoning permit applications, minor site plans, minor subdivisions, engineering drawings, and final plats.

3.1.2.5. Provide administrative interpretations of the UDO. The UDO Administrator or his/her designee making the determination shall give written notice to the owner of the property that is the subject of the determination and to the party who sought the determination, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail. If mailed, the notice shall be delivered to the last address listed for the owner of the affected property on the county tax abstract and to the address provided in the application or request for a determination if the party seeking the determination is different from the owner in accordance with G.S. 160D-403(b).

3.1.2.6. Provide nonconformity determinations, including expansions of nonconforming uses and structures.

3.1.2.7. Administrative staff may inspect work undertaken pursuant to a development approval to assure that the work is being done in accordance with applicable State and local laws and of the terms of the approval. In exercising this power, staff are authorized to enter any premises at reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials; provided, however, that the appropriate consent has been given for inspection of areas not open to the public or that an appropriate inspection warrant has been secured.

3.1.2.8. Maintain the public records of the Planning Board and Board of Adjustment.

3.1.2.9. Perform site inspections.

3.1.2.10. Reserved.

3.1.2.11. Duties assigned to staff may include but are not limited to:

3.1.2.11.1. Drafting and implementing plans and development regulations to be adopted;

3.1.2.11.2. Determining whether applications for development approvals are complete;

3.1.2.11.3. Receiving and processing applications for development approvals;

3.1.2.11.4. Providing notices of applications and hearings;

3.1.2.11.5. Making decisions and determinations regarding development regulation implementation;

3.1.2.11.6. Determining whether applications for development approvals meet applicable standards as established by law and local ordinance; conducting inspections;

3.1.2.11.7. Issuing or denying certificates of occupancy;

3.1.2.11.8. Enforcing development regulations, including issuing notices of violation, orders to correct violations, and recommending bringing judicial actions against actual or threatened violations;

3.1.2.11.9. Keeping adequate records; and

3.1.2.11.10. Any other actions that may be required in order to adequately enforce the laws and development regulations under their jurisdiction pursuant to G.S. 160D-402(b).

3.1.3. The UDO Administrator or his/her designee, shall issue development approvals in accordance with G.S. 160D-403(a). A development approval shall be in writing and may contain a provision that the development shall comply with all applicable State and local laws. The development approval may be issued in print or electronic form. Any development approval issued exclusively in electronic form shall be protected from further editing once issued. Applications for development approvals may be made by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for development approval for such development as is authorized by the easement.

(Ord. of 10-9-2018; Amend. of 6-8-2021(2); Amend. of 6-8-2021(3); Amend. of 6-8-2021(4); Amend. of 1-10-2023(3))

Editor's note— Amend. of 6-8-2021(4) set out provisions adding subsection 3.1.2.11. Inasmuch as there were already provisions so designated, said amendment has been codified herein as subsection 3.1.2.12 at the discretion of the editor.

Members of the Town Council, Planning Board, and Board of Adjustment must act in the public interest and not to advance their own financial interests. The Town Council or appointed board member cannot vote on a legislative decision if the board member has a direct, substantial, and readily identifiable financial impact on the outcome or if there is a close familial, business, or other associational relationship then such member cannot vote. A member of an elected board, Planning Board, or Board of Adjustment may not vote on an UDO action where there is a potential financial conflict of interest.

Members of boards shall not vote on recommendations, permits, approvals, or other issues where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. No member shall be excused from voting except upon those matters as noted, above, or upon those others involving the consideration of his/her own financial interest or official conduct.

A board member with a financial interest in the outcome of the decision may not participate in making decisions on rezonings and other legislative zoning matters. An appointed board member shall not vote on any recommendations, permits, approvals, zoning amendment, or other issues if the landowner of the property subject to a petition or the applicant is a person with whom the member has a close familial, business, or other associational relationship or where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. No member shall be excused from voting except upon those matters as noted, above, or upon those others involving the consideration of his own financial interest or official conduct.

A staff member cannot make an administrative decision if the outcome of that decision would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other associational relationship pursuant to G.S. 160D-109. If a staff member has a conflict of interest, the decision shall be assigned to the supervisor of the staff person.

With quasi-judicial zoning decisions, board members may not participate in a matter involving someone with whom they have a close family or business relationship, nor may they participate if they have a bias (defined as fixed opinion that is not susceptible to change upon hearing the facts at the hearing) pursuant to G.S. 160D-109. When a member is disqualified for a conflict of interest, that member must not participate in the hearing in any way, neither asking questions, nor debating, nor voting on the case. If an objection is raised to a member's participation or the member states a conflict of interest, the remaining members shall by majority vote to decide if the member is excused from participation.

(Ord. of 10-9-2018; Amend. of 6-8-2021(5))

3.3.1. Creation.

The Planning Board for the Town of Oak Island is created under the authority of G.S. 160D-301 to serve the public interest by promoting the public health, safety, and general welfare of the residents of the Town of Oak Island and its extraterritorial jurisdiction. It is the intent of the Town to have representation of a broad cross-section of community interests.

3.3.2. Purpose.

The Planning Board shall act in an advisory capacity to the Town Council in the matter of guiding and accomplishing a coordinated and harmonious development of the area within the Town's jurisdiction.

3.3.3. Creation and Organization.

3.3.3.1. Composition and Vacancies. The Planning Board shall consist of seven (7) members. Six (6) members, appointed by the Town Council, shall reside within the Town. One member, appointed by the County Board of Commissioners, shall reside within the Town's extraterritorial planning area. If, despite good faith efforts, a resident of the extraterritorial planning area cannot be found to fill the seat reserved for residents of such area, then the County Board of Commissioners may appoint another resident of the County (including a resident of the Town) to fill the seat. If the County Board of Commissioners fails to make this appointment within ninety (90) days after receiving a resolution from the Town Council requesting that it be made, the Town Council shall make it. Oak Island shall provide a means of proportional representation based on population for residents of the extraterritorial area. The population estimates for this calculation shall be updated no less frequently than after each decennial census. Representation shall be provided by appointing at least one resident of the extraterritorial planning area to the planning board pursuant to G.S. 160D-307.

Planning Board members shall be appointed for three-year staggered terms, but members may continue to serve until their successors have been appointed. Vacancies of member seats occurring for reasons other than expiration of terms shall be filled as they occur for the period of the unexpired term by appointment of the Town Council. All members appointed to boards shall, before entering their duties, qualify by taking an oath of office as required by G.S. 160D-309.

Members shall not be appointed to more than two consecutive full terms, nor serve for more than eight (8) consecutive years.

Planning Board members may be removed by the Town Council at any time for failure to attend three consecutive meetings or for failure to attend 30% or more meetings within any 12-month period. Upon request of the board member proposed for removal, the Town Council shall hold a meeting on removal before it becomes effective. Upon receiving a request to remove a Board member, Town Council shall vote for before for it to become effective.

3.3.3.2. Organization, Rules, Meetings and Records. At the date and time of the regular meeting in August of each year, the Planning Board shall elect a Chair and Vice-Chair from its membership. The term of the Chair and Vice-Chair shall be one (1) year, with eligibility for re-election. The Town Clerk shall serve as Secretary to the Planning Board. A copy of any adopted rules of procedure shall be maintained by the town and posted on the town's web site. Each board shall keep minutes of its proceedings pursuant to G.S. 160D-308. The Board shall adopt rules for transaction of its business subject to review and approval by the Town Council and shall keep a record of its member attendance and of its resolutions, discussions, findings and recommendations, which record shall be a public record. Except as otherwise stated in Section 3.3.3.4.1 below, the Board shall hold at least one meeting monthly, and all of its meetings shall be open to the public.

3.3.3.3. Offices and Duties.

3.3.3.3.1. Chair. A Chair shall be elected by the voting members of the Planning Board. The Town Manager and the Town Council representative shall be ineligible for this office. The Chair shall decide all matters of order and procedure, subject to these rules, unless directed otherwise by a majority of the Board in session at the time. The Chair shall appoint any committees found necessary to investigate any matters before the Board with the approval of Town Council.

3.3.3.3.2. Vice-Chair. A Vice-Chair shall serve as acting Chair in the absence of the Chair, and at such times he shall have the same powers and duties as the Chair.

3.3.3.3.3. Secretary. The Town Clerk or his/her designee shall serve as secretary of the Board. The secretary, subject to the direction of the Chair and the Board, shall keep all records, shall conduct all correspondence of the Board and shall generally supervise the clerical work of the Board. The secretary shall keep the minutes of each meeting of the Board. These shall show the record of all important facts pertaining to every meeting and hearing, every resolution acted upon by the Board and all votes of members of the Board upon any resolution or other matter, indicating the names of members absent or failing to vote.

3.3.3.3.4. Member Responsibilities. A member shall request to be excused from discussion of or voting on any matter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, or readily identifiable impact on the member. A member shall represent him or herself as a board member and not undermine board recommendations at any other public meetings that address planning issues.

3.3.3.4. Meetings.

3.3.3.4.1. Regular Meetings. Regular meetings of the Board shall be held in the Council Chambers of Town Hall in accordance with a schedule as established by the Planning Board. The meetings will be held only when a request has been filed requiring Planning Board action or in cases of special meetings.

3.3.3.4.2. Special Meetings. Special meetings of the Board may be called at any time by the Chair, or in his absence, the Vice-Chair. At least 48-hours notice of the time and place of special meetings shall be given, by the secretary or by the Chair, to each member of the Board; provided, that this requirement may be waived by a majority of all the members.

3.3.3.4.3. Cancellation of Meetings. Whenever there is no business for the Board, the Chair or UDO Administrator may dispense with a regular meeting by giving notice to all members not less than 48 hours prior to the time set for the meeting.

3.3.3.4.4. Quorum. A quorum shall consist of four members of the Board for the purpose of taking any official actions authorized by this ordinance.

3.3.3.4.5. Conduct of Meetings. All meetings shall be open to the public. The order of business at regular meetings shall be as follows:

3.3.3.4.5.1. Roll call

3.3.3.4.5.2. Consideration of minutes of previous meeting

3.3.3.4.5.3. Public Comment

3.3.3.4.5.4. Unfinished business

3.3.3.4.5.5. New business

3.3.3.4.5.6. Board Member Reports

3.3.3.4.6. Vote. Except as otherwise specified herein, the vote of a majority of those members present shall be sufficient to decide matters before the Board, provided a quorum is present.

3.3.3.5. General Powers and Duties. See Code of Ordinances Chapter 2, Section 2-115, Duties.

3.3.3.6. Planning Board Initiated UDO Amendments. The Planning Board may initiate from time to time proposals for amendments of the UDO and Zoning Map, based upon its studies and plans. It shall review and make recommendations to the Town Council concerning all proposed amendments to the UDO and Zoning Map.

3.3.3.7. Advisory Committees.

3.3.3.7.1. From time to time, Town Council may appoint one or more individuals to assist the Planning Board to carry out its planning responsibilities with respect to a particular subject area. By way of illustration, without limitation, the Council may appoint advisory committees to consider thoroughfare plan(s), bikeway plan(s), housing plans, and economic development plans, etc.

3.3.3.7.2. Members of such advisory committees shall sit as nonvoting members of the Planning Board when such issues are being considered and lend their talents, energies, and expertise to the Planning Board. However, all formal recommendations to the Town Council shall be made by the Planning Board.

3.3.3.7.3. Nothing in this Article shall prevent the Council from establishing independent advisory groups, committees, or boards to make recommendations on any issue directly to the Council.

(Ord. of 10-9-2018; Amend. of 9-8-2020(2); Amend. of 2-9-2021(3); Amend. of 6-8-2021(5); Amend. of 1-10-2023(3))

3.4.1. Powers and Duties.

3.4.1.1. The Board of Adjustment shall hear and decide:

3.4.1.1.1. Appeals of decisions of administrative officials charged with enforcement of this Ordinance (as provided in Section 4.10.1) and requests for variances (as provided in Section 4.10.2). As used in this subsection, the term "decision" includes any final and binding order, requirement, or determination. The board shall hear and decide all matters upon which it is required to pass under any statute or ordinance that regulates land use and development.

3.4.1.1.2. Questions involving interpretations of the zoning map, including disputed district boundary lines and lot lines.

3.4.1.1.3. Any other matter the Board is required to act upon by any other Town ordinance.

3.4.1.2. The Board may adopt rules and regulations governing its procedures and operations not inconsistent with the provisions of this Article.

3.4.2. Creation and Organization.

3.4.2.1. The Zoning Board of Adjustment shall be governed by the terms of the General Statutes of North Carolina (G.S. 160D-1-9(d), G.S. 160D-302, G.S. 160D-403(b), G.S. 160D-405, G.S. 160D-406, G.S. 160D-702, G.S. 160D-705, and G.S. 160D-1405).

3.4.2.2. Membership and Vacancies. The Board of Adjustment shall consist of five (5) members who shall be residents of the area within the municipal limits and shall be appointed by the Town Council for overlapping terms of three years. The Town Council, at its discretion, may appoint not more than three alternate members to serve on the Board of Adjustment in the absence or temporary disqualification, for any cause, of any regular member or to fill a vacancy pending appointment of a member. Such alternate members, while attending any regular or special meeting of the Board and serving on behalf of any regular member, shall have and exercise all the powers and duties of such regular members so absent. Vacancies which occur other than the expiration of term shall be filled by the Town Council for the remaining period of the term vacated. All members appointed to boards shall, before entering their duties, qualify by taking an oath of office as required by G.S. 160D-309. Oak Island shall provide a means of proportional representation based on population for residents of the extraterritorial area pursuant to G.S. 160D-307.

3.4.2.3. Meetings of the Board of Adjustment.

3.4.2.3.1. Regular Meetings. Meetings of the board of adjustment shall be held at the call of the Chair and at such other times as the board of adjustment may determine. All meetings of the board shall be held at a regular place and shall keep minutes of its proceedings in a book maintained for that purpose only, showing the vote of each member upon each question, or, if absent and failing to vote, an indication of such fact; and final disposition of each matter to come before them. The chair of the board or the clerk to the board may administer oaths to witnesses.

3.4.2.3.2. Special Meetings. Special meetings of the Board may be called at any time by the Chair, or in his absence, the Vice-Chair. At least 48-hours written notice of the time and place of special meetings shall be given by the Secretary or the Chair to each member of the Board.

3.4.2.3.3. The Board shall conduct its meetings in accordance with the quasi-judicial procedures set forth in Section 4.11.

3.4.2.3.4. Conflicts on Quasi-Judicial Matters. A member of the Board of Adjustment or any other body exercising the functions of the 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 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 member's participation and that member does not recuse himself or herself, the remaining members shall, by majority vote, rule on the objection. No Board of Adjustment member shall accept any gift, favor, or thing of value that may tend to influence that board member in the discharge of duties. No Board of Adjustment member shall grant any improper favor, service, or thing of value in the discharge of duties.

3.4.2.3.5. All meetings of the Board shall be open to the public and whenever feasible the agenda for each board meeting shall be made available in advance of the meeting.

3.4.2.4. Quorum and Voting.

3.4.2.4.1. The concurring vote equal to four-fifths of the members of the board present at a meeting and not excused from voting (a quorum being present), shall be necessary to grant any variance. All other actions of the board shall be taken by majority vote of those present and not excused from voting, a quorum being present. A quorum shall consist of the number of members equal to four-fifths of the regular board membership (excluding vacant seats).

3.4.2.4.2. Once a member is physically present at a board meeting, any subsequent failure to vote shall be recorded as an affirmative vote unless the member has been excused in accordance with subsection 3.4.2.3.4 or 3.4.2.4.3 or has been allowed to withdraw from the meeting in accordance with Subsection 3.4.2.4.4.

3.4.2.4.3. A member may be excused from voting on a particular issue by majority vote of the remaining members present under the following circumstances:

3.4.2.4.3.1. If the matter at issue involves the member's own official conduct; or

3.4.2.4.3.2. If the participation in the matter might violate the letter or spirit of the member's code of professional responsibility.

3.4.2.4.4. A member may be allowed to withdraw from the entire remainder of a meeting by majority vote of the remaining members present for any good and sufficient reason other than the member's desire to avoid voting on matters to be considered at the meeting.

3.4.2.4.5. A roll call vote shall be taken upon the request of any member.

3.4.2.5. Board of Adjustment Officers and Duties.

3.4.2.5.1. Chair. The Chair shall be elected by majority vote of the membership of the Board from among its members. His term of office shall be for one year, and until his successor is elected, beginning on July 1, and the Chair shall be eligible for re-election. Subject to these rules, the Chair shall decide upon all points of order and procedure, unless directed otherwise by a majority of the Board in session at the time. The Chair shall appoint any committees found necessary to investigate any matter before the Board with the approval of Town Council.

3.4.2.5.2. Vice-Chair. A Vice-Chair shall be elected by the Board from among its members in the same manner and for the same term as the Chair. He shall serve as acting Chair in the absence of the Chair, and at such times he shall have the same powers and duties as the Chair.

3.4.2.5.3. Secretary. The Town Clerk or their designee shall serve as Secretary.

3.4.3. Rules of Procedure.

All meetings held by the Board of Adjustment shall be held in accordance with G.S. ch. 143A, art. 33C, or as may be amended, and should be recorded. The Board shall keep accurate minutes of its proceedings suitable for review in Court showing:

3.4.3.1. The record of all procedural requirements of the meeting including number and names of all Board members present, names of witnesses heard, whether parties were represented by council, whether subpoenas were issued and to who, whether cross-examination of witnesses was requested and allowed, and any other event at the hearing that had any effect on the outcome.

3.4.3.2. The factual evidence presented to the Board of Adjustment by all parties concerned.

3.4.3.3. The findings of fact and the reasons for the determinations by the Board of Adjustment.

3.4.3.4. The vote of each member, or if absent or failing to vote, indicating such fact, all of which shall be public record and be filed with the office of the Town Clerk.

3.4.3.5. The Board may issue subpoenas. If there is noncompliance with the subpoena, the Board may apply to the courts for an order to comply.

(Ord. of 10-9-2018; Amend. of 6-8-2021(5); Amend. of 1-10-2023(3))

3.5.1. The town may enter into development agreements with developers, subject to the procedures of G.S. 160D-1001. In entering into such agreements, the town not exercise any authority or make any commitment not authorized by general or local act and may not impose any tax or fee not authorized by otherwise applicable law. Development authorized by a development agreement shall comply with all applicable laws, including all ordinances, resolutions, regulations, permits, policies, and laws affecting the development of property, including laws governing permitted uses of the property, density, intensity, design, and improvements. The development agreement may include defined performance standards, not inconsistent with G.S. 160D-1006. The development agreement may include mutually acceptable terms regarding provision of public facilities and other amenities and the allocation of financial responsibility for their provision, provided any impact mitigation measures offered by the developer beyond those that could be required by the town pursuant to G.S. 160D-804 shall be expressly enumerated within the agreement, and provided the agreement may not include a tax or impact fee not otherwise authorized by law.

3.5.2. The Town shall process a development agreement as a legislative decision. A development agreement: must have the town as a party to a development agreement, may consider a development agreement concurrently with a rezoning, subdivision, or site plan, may mutually agree with a developer for the developer to provide public improvements beyond what could have been required, provided such conditions are included in the development agreement, may include penalties for breach of a development agreement in the agreement or in the ordinance setting the procedures for development agreements.

3.5.3. A development agreement shall, at a minimum, include all of the content and topics required by G.S. 160D-1006. A development agreement may include penalties for breach of a development agreement in the agreement. Either party may bring legal action seeking an injunction to enforce a development agreement in accordance with G.S. 160D-1008.

(Ord. of 10-9-2018; Amend. of 6-8-2021(9); Amend. of 1-10-2023(3))