Stoneville City Zoning Code
BOARD OF
ADJUSTMENT
§ 151.065 CREATION OF BOARD OF ADJUSTMENT.
(A) General. There shall be and is hereby created a Board of Adjustment consisting of six members. All members shall be residents of the town and its extraterritorial area and shall be appointed by the Town Council. Three members shall be residents of the town and three members shall be residents of the extraterritorial area. The Board shall follow quasi-judicial procedures pursuant to G.S. § 160D-406 in all matters brought before the Board, such as appeals of administrative decisions and variance requests.
(B) Length of terms.
(1) After adoption of this chapter, new appointments to said Board of Adjustment shall be made as follows: two members to serve for one year; two members to serve for two years; and two members to serve for three years. Thereafter, as the terms expire, all new appointments shall be for three-year terms. Nothing herein contained shall be so interpreted as to forbid any member from being appointed to succeed himself or herself.
(2) Vacancies occurring for any reason other than expiration of term shall be filled as soon as is reasonably possible after such vacancy occurs by the Town Council and such appointment shall be only for the period of the unexpired term.
(C) Officers, rules, and regulations. The Board of Adjustment shall elect officers and adopt rules and regulations for its own government as it deems necessary to carry out the provisions of this subchapter.
(D) Conflict of interest. A Board of Adjustment member, when exercising any quasi-judicial function, 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. "Close familial relationship" means a spouse, parent, child, brother, sister, grandparent, or grandchild, and includes the step, half, and in-law relationships.
(G.S. § 160D-109)
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)
§ 151.066 CONDUCT OF EVIDENTIARY HEARINGS.
All evidentiary hearings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question and the absence or failure of any member to vote.
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)
§ 151.067 DISPOSITION OF APPEALS.
The final disposition of each appeal shall be by recorded resolution indicating the reasons of the Board therefor based on findings of fact and conclusions of law, all of which shall be a public record.
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)
§ 151.068 APPEALS FROM DECISIONS OF ZONING ADMINISTRATOR.
(A) General.
(1) Any person who has standing under G.S. § 160D-1402(c) or the local government may appeal an administrative decision to the Board. An appeal is taken by filing a notice of appeal with the local government clerk or such other local government official as designated by ordinance. The notice of appeal shall state the grounds for the appeal.
(2) An appeal must be taken within 30 days after the date the decision or order is made. An appeal is taken by filing a written notice of appeal with the Zoning Administrator and the Board of Adjustment which specifies the grounds for the appeal. A notice of appeal shall be considered filed when delivered to the Zoning Administrator.
(3) Materials. The Zoning Administrator shall transmit to the Board of Adjustment 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 applicant and to the landowner if that person is not the 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.
(B) Hearing of the appeal. After receipt of notice of an appeal, a time for an evidentiary hearing on the same shall be scheduled at either a regular or special meeting, which shall be within 36 days from the filing of such notice of appeal.
(C) Notice. 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.
(D) Fees for appeals. A fee of $25 shall be paid to the town to cover administrative costs for each appeal to the Board and the payment of such fee shall be a prerequisite to the filing of such appeal with the Board.
(E) Presentation of evidence. The applicant, the local government, 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. 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.
(F) Appearance of official. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the town, shall be present at the evidentiary hearing as a witness.
(G) Oaths. 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.
(H) Subpoenas. The Board making a quasi-judicial decision under this chapter through the Chair or, in the Chair's absence, anyone acting as Chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the local government, and any 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. If a person fails or refuses to obey a subpoena issued pursuant to this division, the Board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.
(I) Voting. 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, 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.
(J) Decisions. 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.
(K) Judicial review. Every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari pursuant to G.S. § 160D-1402. Appeals shall be filed within the times specified in G.S. § 160D-1405(d).
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)
§ 151.069 APPEAL STAYS ALL PROCEEDINGS.
(A)
An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board, after the notice of appeal shall have been filed with him or her by reason of facts stated in the certificate, that a stay would, in his or her opinion, cause imminent peril to life or property.
(B) In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of record on application, on notice to the Zoning Administrator and on due cause shown.
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)
§ 151.070 POWERS OF THE BOARD.
The Board shall have the following powers:
(A) To hear appeals. To hear and decide appeals where it is alleged that there is error in any order, requirement, decision, or determination made by the Zoning Administrator. The concurring vote of four-fifths of all the members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Zoning Administrator, to decide in favor of the applicant any matter which is required to pass upon under this chapter or to affect any variation in the said ordinance; and
(B) To authorize variances.
(1) 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 undue hardship and so that the spirit of this chapter shall be observed, and substantial justice done.
(2) The Board of Adjustment shall only consider the application and competent, material, and substantial evidence presented at the evidentiary hearing and may grant or deny the variance requested. In considering all proposed variances to this chapter, the Board shall, before making any finding in a specific case, first determine that the proposed variance will not allow the establishment of a use not otherwise permitted in a district by this chapter; extend in area or expand a non-conforming use of land; change the district boundaries shown on the zoning map; impair any adequate supply of light and air to adjacent property; materially increase the public danger of fire; materially diminish or impair established property values within the surrounding area; or in any other respect impair the public health, safety, morals and general welfare.
(3) In granting a variance, the Board may attach thereto such time and conditions regarding the location, character and other features of the proposed building, structure or use as it may deem advisable in furtherance of the purposes of this chapter.
(4) Before a variance is granted, it shall be shown that special circumstances attach to the property which do not generally apply to other property in the neighborhood. A variance may be granted only when the practical difficulty or undue hardship complained of is due to the particular characteristics of the property and not to the general conditions of the neighborhood which may reflect an undue stringency of the ordinance itself. A hardship peculiar to the applicant, as distinguished from others affected by the general rule, must be shown. The fact that property may be utilized more profitably will not be considered adequate to justify the Board in granting a variance.
(5) Findings of fact. When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the Board of Adjustment shall vary any of the provisions of the zoning regulation upon a showing of all the following:
(a) Unnecessary hardship would result from the strict application of the regulation. It is not 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. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability;
(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 is not a self-created hardship; and
(d) The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secure and substantial justice is achieved.
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)
§ 151.071 WATERSHED VARIANCES.
(A) Minor variance. The Board of Adjustment shall handle minor variances as specified in § 151.070(B), above.
(B) Major variance.
(1) If a major variance is requested, the Board of Adjustment, after making a favorable decision in granting the request, shall prepare a preliminary record of the hearing. The preliminary record of the hearing shall include:
(a) The variance application;
(b) The hearing notices;
(c) The evidence presented;
(d) Motions, offers of proof, objections to evidence, and rulings on them;
(e) Proposed findings and exceptions; and
(f) The proposed decision, including all conditions proposed to be added to the permit.
(2) The preliminary record shall be sent to the N.C. Environmental Management Commission for its review as follows. The Commission shall review the preliminary record and determine whether or not:
(a) The request qualifies as a major variance;
(b) The property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted; and
(c) The variance, if granted, will not result in a serious threat to the water supply. Based on their findings the Commission shall approve the variance as proposed or approve the proposed variance with conditions and stipulations or disapprove it. The Commission shall prepare a decision and send it to the Board of Adjustment. Based on the recommendation of the Commission, the Board of Adjustment shall prepare a final decision.
(C) Comment period. The town shall notify and allow a reasonable comment period for all local governments having jurisdiction in the watershed where the variance is considered.
(Ord. passed 9-7-1993; Res. R-2021-03, passed 6-24-2021)
§ 151.072 RE-HEARINGS.
The Board shall refuse to hear an appeal or application previously denied if it finds there have been no substantial changes in conditions or circumstances bearing on the appeal or application.
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)
§ 151.073 REVIEW BY CERTIORARI.
Any person or persons, jointly or severally, aggrieved by any decision of the Board or any taxpayer, or any officer, department, board, or bureau of the town may present to a court of competent jurisdiction a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality; whereupon such decision of said Board shall be subject to review by certiorari as provided by law. Any appeal to the Superior Court shall be taken within 30 days after the decision of the Board is filed in the office of the Town Clerk and a written copy thereof is delivered to the appellant by personal service or registered mail, whichever is later.
(Ord. passed 7-1-1980; Res. R-2021-03, passed 6-24-2021)