The Board of Adjustment shall consist of the seven persons appointed by the Board of Commissioners to serve on the Planning Board. The Board of Commissioners shall provide for the appointment of the Pasquotank County Board of Adjustment/Planning Board pursuant to G.S. Chapter 160D to exercise the powers and duties prescribed herein.

(Ord. passed 6-21-2021)

    The Board of Adjustment shall have authority on any appeal relative to the provisions of this chapter originating from within the area encompassed by the legal description of the jurisdiction of this chapter as described in § 157.015.

(Ord. passed 6-21-2021)

    The Board shall adopt rules governing its organization and for all proceedings before it. Such rules shall provide and require the following in addition to such other rules and regulations the Board shall adopt:

   (A)   The Board of Adjustment/Planning Board shall elect a Chairman and Vice-Chairman on an annual basis.

   (B)   The County Planning Director or his designee shall serve as the Secretary of the Board. The Secretary shall keep minutes of the proceedings. All meetings shall be open to the public. The minutes shall contain relevant facts and testimony of each appeal, the vote of each member on each appeal, abstention from voting and attendance.

   (C)   A member of the Board or any other body exercising the functions of a 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 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 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.

   (D)   Boards shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances, or any other quasi-judicial decision.

   (E)   No appeal may be heard unless a quorum is present. A quorum shall consist of four-fifths (4/5) of the membership of the Board.

   (F)   Notice of evidentiary hearings conducted pursuant to this chapter 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 local government 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 local government 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.

   (G)   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.

   (H)   (1)   The applicant, the local government, and any person who would have standing to appeal the decision under G.S. Chapter 160D 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.

      (2)   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. Chapter 160D. Objections based on jurisdictional issues may be raised for the first time on judicial review.

   (I)   The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the local government, 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 local government would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing.

   (J)   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 determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.

   (L)   When hearing an appeal pursuant to G.S. Chapter 160D 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. Chapter 160D.

   (M)   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 division (M), 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.

   (N)   The Board shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, 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 the powers of the official who made the decision. 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, reflect the Board's determination of contested facts and their application to the applicable standards, and be approved by the Board and 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 or such other office or official as the development regulation specifies. 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 local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.

   (P)   Fees for filing appeals to the Board of Adjustment shall be established by the Board of Commissioners, in order to cover necessary administrative costs and advertising expense. Applications to the Board of Adjustment may be withdrawn at any time. Application fees are nonrefundable.

   (Q)   Submittals for review by the Board of Adjustment shall be presented to the appropriate county officials 30 days prior to the regularly scheduled Board of Adjustment meeting.

(Ord. passed 6-21-2021)

      (1)   A variance may be granted to authorize, upon appeal in specific cases, such variance from the terms of this chapter as will not be contrary to the public interest where owing to special conditions a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done. In considering all proposed variances to this chapter, the Board shall, before making any finding in a specified case, first determine that the proposed variances will not constitute any change in the district boundaries shown on the zoning map and will not impair any adequate supply of light and air to adjacent property, or adversely affect the use or physical attributes of property within the surrounding area, or in any other respect impair the public health, safety, and general welfare.

      (2)   Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

      (3)   No change in permitted uses may be authorized by variance.

      (4)   Before a variance is granted, the Board of Adjustment shall make the following findings:

         (a)   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.

         (b)   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.

         (c)   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.

         (d)   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.

      (5)   The Board may grant a variance in the dimensional yard requirements of this chapter only where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property which was a lot of record as of the effective date of this chapter, or where due to the topographical conditions of a piece of property the strict application of the said dimensional requirements of this chapter would result in practical difficulties or unnecessary hardship of such nature as described in the preceding paragraph.

      (6)   The fact that property may be utilized more profitably will not be considered as a justification for granting a variance by the Board.

      (7)   The concurring vote of four-fifths of the Board of Adjustment shall be necessary to grant a variance. For the purposes of this division, 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.

      Where a use district boundary line crosses a lot, the Board, after a public hearing in which it has determined that the spirit and intent of this chapter has been carried out, may permit a use of either classification on the whole lot, but not to exceed a distance of 150 feet from the boundary line. In addition, the remaining parcel shall not be less than the minimum required for the district in which it is located.

(Ord. passed 6-21-2021)

   (A)   Appeals from the enforcement and interpretation of this chapter and appeals for variances may be taken to the Board of Adjustment by any person aggrieved by a decision of any officer, department, board or bureau of the county. Notice of an appeal to the Board of Adjustment shall be filed with the Enforcement Officer within 30 from receipt of the written notice of the interpretation and enforcement of this chapter by the Zoning Enforcement Officer. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to this section 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.

   (B)   An appeal stays all proceedings in furtherance of action appealed from, unless the Enforcement Officer files a certificate stating that by reasons of facts stated in the certificate a stay would, in his opinion, interfere with enforcement of this chapter because the violation is transitory in nature, or would cause imminent peril to life and property. The Enforcement Officer shall have one copy of said certificate delivered by registered mail or by personal service to the appellant and to each member to the Board within ten calendar days from the date the appeal is filed with the Enforcement Officer. The certificate shall also be placed on file in the office of the Enforcement Officer for public inspection and recorded in the minutes of the next meeting of the Board. Where said certificate is filed by the Enforcement Officer, proceedings in furtherance of the original order shall not be stayed otherwise than a restraining order which may be granted by a court of record within the county. 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 the request is filed.

   (C)   Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations, the appellant or local government 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.

(Ord. passed 6-21-2021)

    Any person or persons aggrieved by a decision of the Board of Adjustment may within 30 days or after a written copy thereof is given, but not thereafter, present to the Superior Court of Pasquotank County a petition for a writ of certiorari, duly verified, setting forth that such a decision is illegal, in whole or in part, specifying the grounds of illegality, whereupon such a decision of the Board shall be subject to review as provided by law.

(Ord. passed 6-21-2021)