(a)

A board of adjustment is hereby established. It shall consist of five members who are residents of the Town of Ocean Isle Beach and two members who are residents of the area of extraterritorial jurisdiction. The Town of Ocean Isle Beach Board of Commissioners shall appoint the five members who are residents of the Town of Ocean Isle Beach. The town board may appoint two alternate members to represent the town's jurisdictional area, when regular board members are ill, out of town or have a conflict with meeting time. The Brunswick County Board of Commissioners shall appoint the two members who are residents of the extraterritorial jurisdiction in accordance with G.S. 160D-307. The two members representing the extraterritorial area shall function only with respect to matters within the extraterritorial area. Two alternate members shall be recommended by the Town of Ocean Isle Beach Board of Commissioners for appointment by the Brunswick County Board of Commissioners to serve on the board in the absence of any extraterritorial member. Each alternate member while attending any regular or special meeting of the board and serving in the absence of an extraterritorial member shall have and may exercise all the powers and duties of an extraterritorial member. Terms of appointment shall be as follows:

(1)

Members representing the Town of Ocean Isle Beach shall be appointed to serve three-year staggered terms whereby no more than two members shall be scheduled for replacement due to the expiration of term, in any one year and of the initial board members, two shall serve a two-year period and two shall be appointed to serve a three-year period and one shall be appointed to serve a one-year period.

(2)

Members representing the area of extraterritorial jurisdiction shall be appointed to serve a three-year period. Alternate members shall also be appointed to serve a three-year period. Alternate members shall be appointed for the same term, at the same time and in the same manner as regular members.

(3)

Faithful attendance at meetings of the board of adjustment shall be a prerequisite to continued membership. The board of commissioners may remove and replace any member who is absent from three meetings during a calendar year without being excused by the board of commissioners for reasons of sickness or emergency. Extraterritorial members of the board of adjustment are required to attend planning board meetings only when extraterritorial matters are to be discussed.

(b)

Members shall serve without compensation but may be reimbursed for direct expenses incurred in connection with the discharge of their duties.

(Code 1983, § 7-2-1; Ord. of 3-24-2000(6), § 1; Ord. of 6-8-2004, § 6; Res. No. 2020-19, 11-10-2020)

The board of adjustment shall have the following powers:

(1)

Hear, review and decide appeals from any decision made by the zoning administrator or any other administrative official charged with the enforcement of this chapter in the performance of his official duties. As used in this article, the term "decision" includes any final and binding order, requirement or determination.

(2)

Hear and decide applications for special use permits as provided in G.S. 160D-705(c) and 66-410, not including variances in permitted uses, to be in accordance with the principles, conditions, safeguards, and procedures specified herein.

(3)

Hear and decide appeals for variances in accordance with section 66-405. Nothing in this section shall be construed to authorize the board of adjustment to permit a use in a district where that use is neither a permitted use nor a special use.

[(4)

Reserved.]

(5)

Hear and decide upon all matters referred to it or upon which it is required to pass under this chapter.

(Code 1983, § 7-2-1; Res. of 5-8-2007(4); Res. No. 2013-24, § 1, 10-8-2013; Res. No. 2020-19, 11-10-2020)

(a)

The board of adjustment shall adopt rules of procedure and regulations for the conduct of its affairs. These rules of procedure shall be maintained as a matter of public record in the office of the town clerk. The board shall follow statutory quasi-judicial procedures in determining any quasi-judicial decision.

(b)

All meetings of the board shall be open to the public, and the board give notice as required by G.S. 160D-406(b).

(c)

The board shall keep a record of its meetings, including the vote of each member on every question, a complete summary of the evidence submitted to it, documents submitted to it and all official actions. This record shall be delivered to the town clerk who shall record same in the appropriate minute book to be archived as the permanent record of proceedings.

(d)

The board shall give notice of all evidentiary hearings. The notice of the evidentiary hearing 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 persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the town may rely on the 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. 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.

(e)

The zoning administrator shall also post on the site that is the subject of the hearing or on an adjacent street or highway right-of-way a notice of the evidentiary hearing at least ten days, but no more than 25 days prior to the date of hearing.

(f)

The chair of the board or any 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 swears falsely is guilty of a Class 1 misdemeanor. 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.

(g)

Applications for special use approvals, applications for variances and appeals for review of decisions of the building inspector's interpretations shall be filed with the zoning administrator as agent for the board. Applications and appeals shall be submitted on forms provided by the building inspector.

(h)

It shall be the responsibility of the zoning administrator to notify the parties to the applications or appeal of the disposition which the board made of the matter. This notice shall be made by registered or certified mail within five working days of the board's actions. The zoning administrator shall simultaneously keep on file a copy of the board's action.

(i)

The board shall act on all applications before it within 60 days of receipt of the application.

(j)

It shall be the responsibility of the zoning administrator to issue permits in accordance with the board's action on an appeal or application if a permit is authorized by the board's actions.

(k)

The zoning administrator shall see to the faithful execution of all portions of the board's actions, including the enforcement of all conditions which may have been attached to the granting of a variance or approval of a special use.

(l)

The board of adjustment shall have the authority to continue the scheduled evidentiary hearing of any matter that comes before it with good cause shown, both on its own motion and on the motion of the petitioner and shall have the discretion to continue the hearing to the next scheduled board of adjustment meeting. If a hearing is continued upon the motion of the petitioner, individuals who attend the initially scheduled hearing to testify in opposition of the petition shall be afforded the opportunity to be placed under oath and provide testimony on that date and the testimony shall be considered when a ruling is made on the petition. The petitioner shall have the opportunity to cross examine those witnesses on the date they appear in response to the published notice and shall have to make arrangements to be present for the testimony. A hearing continued upon the motion of the petitioner shall be continued in open session to a day certain and newspaper publication shall not be required, however certified letters once mailed shall be mailed again and the petitioner shall have the obligation to pay for said mailings.

(Code 1983, § 7-2-1; Ord. of 4-10-2007; Res. of 5-8-2007(4); Res. No. 2013-24, § 1, 10-8-2013; Res. No. 2020-19, 11-10-2020)

(a)

A quorum of the board of adjustment, necessary to conduct any business of the board, shall consist of five members. For any item of business affecting the areas of extraterritorial jurisdiction, a quorum shall consist of seven members.

(b)

The concurring vote of four-fifth's of the board shall be necessary in order to grant a variance. A majority vote by the members in attendance and constituting a quorum shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari.

(1)

Effect any variation in this chapter.

(i)

A simple majority of those present shall be necessary to conduct routine business of the board.

(ii)

Vacant positions on the BOA and members who are disqualified from voting on quasi-judicial matters shall not be considered "members of the board" for calculation of the requisite supermajority if there are no qualified alternatives available to take the place of such members.

(iii)

No member of the BOA shall participate in or vote on any quasijudicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed 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.

A simple majority of those present shall be necessary to conduct routine business of the board.

(Code 1983, § 7-2-1; Ord. of 5-23-000(2); Res. of 5-8-2007(4); Res. No. 2013-24, § 1, 10-8-2013)

(a)

A variance may be allowed only by the board of adjustment when unnecessary hardships would result from the strict letter of this chapter, and then only when substantial evidence in the official record of the application supports all of the following findings of fact and conclusions of law:

(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 the general public, may not be the basis for granting a variance.

(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-created hardship.

(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)

All of the findings of fact in subsection (a) above shall be affirmed in the indicated order by the board of adjustment, and shall be supported by substantial evidence in the record of proceedings before the board.

(c)

The board may impose reasonable conditions which must be related to the circumstance or conditions that gives rise for the need for the variance.

(d)

No change in permitted uses may be authorized by a variance.

(Code 1983, § 7-2-1; Res. of 5-8-2007(4); Res. No. 2013-24, § 1, 10-8-2013)

(a)

An appeal from an order, requirement, decision or determination of the administrative official charged with enforcement of the ordinance [this chapter] shall be decided by the board of adjustment based upon its findings of fact and to achieve the intent of this chapter. In exercising this power, the board shall act in a prudent manner so that the purposes of this chapter shall be served. The effect of the decision shall not be to vary the terms of this chapter nor add to the list of permitted uses in the districts. The officer 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. 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. The official who made the decision (or his/her successor if no longer employed) shall appear as a witness in the appeal.

(b)

An appeal for an interpretation of a decision, file determination or directive of the administrative official charged with enforcement of the ordinance must be within 30 days after the decision, determination or directive was made by the official and record of that action filed in the town offices. In the absence of evidence to the contrary, notice given pursuant to G.S. 160D-403(b) by first class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service

(Code 1983, § 7-2-1; Res. of 5-8-2007(4); Res. No. 2015-09, § 1, 5-12-2015; Res. No. 2020-19, 11-10-2020)

An appeal to the board of adjustment from a decision or determination of the administrative official charged with enforcement of the ordinance [this chapter] stays all proceedings, including fines, in furtherance of the decision or determination appealed from, except as provided in section 66-408.

(Code 1983, § 7-2-1; Res. No. 2015-09, § 1, 5-12-2015Res. No. 2020-19, 11-10-2020)

An appeal to the board of adjustment of a determination or decision of the administrative official charged with enforcement of the ordinance shall not stay further proceedings in furtherance of the decision or determination appealed from if the official certifies either:

(1)

That in the opinion of the official, a stay would cause imminent peril to life and/or property; or

(2)

That the situation appealed from is transitory in nature, and therefore an appeal would seriously interfere with enforcement of this chapter.

In each instance, the administrative official charged with enforcement of the ordinance shall place in the certificate facts to support the conclusion. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board shall meet to hear the appeal within 15 days after such a request is filed.

(Code 1983, § 7-2-1; Res. of 5-8-2007(4); Res. No. 2015-09, § 1, 5-12-2015; Res. No. 2020-19, 11-10-2020)

Every decision of the board of adjustment shall be subject to review, at the request of any aggrieved party, by the superior court by proceedings in the nature of certiorari. The appeal to superior court must be filed by the latter of within 30 days after the decision is effective or after a written copy thereof is delivered to the applicant, property owner, or to any person who has submitted a written request for a copy. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

(Res. of 5-8-2007(4); Res. No. 2013-24, § 1, 10-8-2013)

The purpose of this section is to establish a procedure for the review of requests for special use permits.

(1)

A completed, signed application shall be submitted to the board of adjustment at least three weeks prior to the regularly scheduled meeting date for the board of adjustment. A fee for such application shall be paid at the time of application according to the approved schedule of fees. The applicant must comply with the special use permit criteria checklist, said checklist attached hereto and incorporated herein by reference as if set out in full and made available to each applicant. Set forth in subsection (6) of this section.

(2)

Each application shall be accompanied by a sufficient legal description map, site plan (drawn to scale), and any other information necessary to completely describe the special use and all existing conditions. Any existing structures, utilities, and/or easements shall be shown on the site plan.

(3)

Adjacent property owners as listed with the tax office within 150 feet of the affected property shall be notified by regular U.S. mail of the requested special use at least ten days prior to the meeting date.

(4)

Reserved.

(5)

The board of adjustment shall hold an evidentiary hearing on the application for a special use within 60 days after the application is submitted. Notice of the evidentiary hearing shall be mailed to the person or entity whose 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 persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the town may rely on the 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 town shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way. 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. In computing the notice period the day of publication is not to be included, but the day of the hearing is to be included.

(6)

The board of adjustment shall approve, approve with conditions, or deny the request for a special use permit. In reviewing a request for a special use permit, the board of adjustment, with due consideration of adjacent properties and uses in the affected district, shall make findings of fact that the following requirements are fulfilled:

a.

The use requested is listed among the special uses in the district for which application is made; or is similar in character to those listed in that district; and

b.

The special use will not impair the integrity or character of the surrounding or adjoining districts, nor adversely affect the safety, health, morals or welfare of the community or of the immediate neighbors of the property; and

c.

The special use is essential or desirable to the public welfare; and

d.

The requested special use will be in conformity with the approved land use plan; and

e.

Adequate utilities, roads, driveways, parking, stormwater control, sanitation, and other necessary facilities have been or are being provided; and

f.

Ingress and egress to the proposed special use is designed to minimize traffic congestion along public thoroughfares; and

g.

That the special use shall, in all other respects, conform to the applicable regulations of the district in which it is located; [and]

h.

That the use will not endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved;

i.

That the use will not substantially injure the value of adjoining or abutting property;

j.

That the location and character of the use, if developed according to the plan submitted and approved, with be in harmony with the area in which it is to be located;

k.

Whether additional limitations or restrictions are necessary in order to protect properties. Said restrictions may include: setback limitations, fencing and screening of structures, height restrictions, continued maintenance of the structure, restrictions on signage, aesthetic considerations; [and]

l.

The presentation of a detailed site plan must accompany a special use request.

(7)

All conditions of an approved special use permit must be accompanied by the written consent of the land owner or permit applicant.

(8)

Approval of special use requests does not exempt the applicant from complying with all other federal, state, and local regulations.

(9)

Special use permits may be revoked by the board of adjustment if it is found that the conditions of approval are not being complied with. The special use permit may be revoked in accordance with the same approval process required for issuance of the special use permit, including required notice of the evidentiary hearing.

(10)

A special use permit shall expire if it has not been exercised within six months from the date of approval. Special use permits that have not been implemented are nontransferable. Once implemented, the SUP "runs with the land" and shall pass to all heirs and assigns. Any expansion or alteration of the special use will shall require approval by the Board of Adjustment.

(11)

Reserved.

(Ord. of 8-8-2000(6), § 1; Amend. of 8-8-2000; Ord. of 1-14-2003(1), § 1; Ord. of 1-14-2003(3), § 1; Ord. of 12-12-2006, § 3; Res. of 5-8-2007(4); Res. No. 2020-19, 11-10-2020)

All members appointed to boards under this chapter shall, before entering their duties, qualify by taking an oath of office as required by G.S. 160A-61.

(Res. No. 2020-19, 11-10-2020)