A board of planning and adjustment for the City of Thomasville, North Carolina is hereby created. The board shall consist of seven members, two of which shall initially be appointed for one-year terms, two of which shall be appointed for two-year terms, and three of which shall be appointed for three-year terms. Six board members shall be appointed by the Thomasville City Council and one by the Davidson County Commissioners. Initially, six members shall be appointed by the Thomasville City Council (two for a one-year term, two for a two-year term, and two for a three-year term), and one member shall be appointed by the Davidson County Commissioners for a three-year term. The board members appointed by the Thomasville City Council shall be residents of the City of Thomasville. The board member appointed by the Davidson County Board of Commissioners shall reside in the extraterritorial area zoned by the City of Thomasville.

If there is an insufficient number of qualified residents of the extraterritorial area to meet membership requirements, the Davidson County Board of Commissioners may appoint as many other residents of the county as necessary to make up the requisite number. When the extraterritorial area extends into two or more counties, each board of county commissioners concerned shall appoint representatives from its portion of the area, as specified in the ordinance. If a board of county commissioners fails to make these appointments within 90 days after receiving a resolution from the city council requesting that they be made, the city council may make them.

The City of Thomasville will update the extraterritorial jurisdiction population estimate, at least with each decennial census (G.S. 160D-307).

There shall be two alternate members of the board of planning and adjustment. The members appointed as alternate members shall consist of one from the extraterritorial jurisdiction and one from inside the city limits. The alternate members of the board of planning and adjustment will be called upon to attend only those meetings and hearings at which one or more members are absent or unable to participate in the hearing of a case because of financial or other interest. The alternate member will be used in any absence of regular members. The chairman of the board will be responsible for contacting alternate members to request their attendance.

The City of Thomasville board of planning and adjustment shall be governed by G.S. ch. 160D and other general and special acts relating to planning and related activities in the City of Thomasville as well as by the ordinances which established the board. Generally accepted parliamentary rules and procedures shall be used to determine the conduct of the affairs of the board of planning and adjustment.

(Ord. No. 644-A, § III, 2-19-90; Ord. of 12-16-02; Ord. of 5-19-08, § 1; Ord. No. 06-2021-ORD12, § 1(Exh. 1), 6-21-21)

After the initial appointment of board of planning and adjustment members, appointments of successor members to said board shall annually be made by the Thomasville City Council appointing two members each year to said board for three-year terms and by the Davidson County Board of Commissioners (each three years) appointing one member to said board for a three-year term.

(Ord. No. 644-A, § III, 2-19-90; Ord. of 12-16-02)

Any vacancy that shall occur in the membership of the board of planning and adjustment shall be filled by the Thomasville City Council if the vacancy represents a member living within the City of Thomasville, and by the Davidson County Board of Commissioners if the vacancy represents a member from the extraterritorial zone, for the unexpired term. Members whose terms have expired shall continue to serve until their successors have been appointed and accepted an oath of office. Members shall serve without pay, but may be reimbursed for any expenses incurred while representing the board. All members of the board of planning and adjustment shall accept an oath of office to be administered by a notary public.

(Ord. No. 644-A, § III, 2-19-90)

Within 30 days after appointment the board of planning and adjustment shall meet and elect a chairman and create and fill such of the offices as it may determine. The term of the chairman and other officers shall be one year, with eligibility for reelection. The board shall adopt rules for transactions of its business and shall keep a record of its member's attendance and of its resolutions, discussions, findings and recommendations, which record shall be a public record. The board shall hold at least one meeting monthly, and all of its meetings shall be open to the public. There shall be a quorum of four members for the purpose of taking any official action required by this ordinance.

A board member shall not vote on any advisory or legislative decision regarding a development regulation adopted pursuant to G.S. 160D-109 where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. Nor shall member vote on a recommendation regarding a rezoning or text amendment, if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business or other associational relationship. "Close familial relationship" means a spouse, parent, child, brother, sister, grandparent, grandchild, and step, half and in-law relationships.

(Ord. No. 644-A, § III, 2-19-90; Ord. of 12-16-02; Ord. No. 06-2021-ORD12, § 1(Exh. 1), 6-21-21)

All members appointed to the board, before starting their duties, must take an oath of office as required by G.S. 160D-309.

(Ord. No. 06-2021-ORD12, § 1(Exh. 1), 6-21-21)

As to all planning and zoning matters, the board of planning and adjustment shall have power:

a.

To acquire and maintain in current form such basic information and materials as are necessary to an understanding of past trends, present conditions, and forces at work to cause changes in these conditions;

b.

To prepare and from time to time propose and recommend to the city council for adoption an amended and revised comprehensive and coordinated plan for the physical development of the area;

c.

To establish principles and policies for guiding action in the development of the area;

d.

To prepare and recommend to the city council ordinances promoting orderly development along the lines indicated in the comprehensive plan;

e.

To determine whether specific proposed developments conform to the principles and requirements of the comprehensive plan for the growth and improvement of the area;

f.

To keep the city council and the general public informed and advised as to these matters;

g.

To make studies of the area within its jurisdiction and surrounding areas;

h.

To determine objectives to be sought in the development of the study area;

i.

To prepare and adopt plans for achieving these objectives;

j.

To develop and recommend policies, ordinances, administrative procedures, and other means for carrying out plans in a coordinated and efficient manner;

k.

To advise the city council concerning the use and amendment of means for carrying out plans;

l.

To exercise any functions in the administration and enforcement of various means for carrying out plans that the council may direct;

m.

To perform the duties and have all power formerly exercised by the housing board of adjustments and appeals, with reference to section 14-261 et seq. of this Code of Ordinances.

n.

To perform any other related duties that the city council may direct.

(Ord. No. 644-A, § III, 2-19-90; Ord. of 11-20-00, § 3)

a.

Basic studies. As background for its comprehensive plan and any ordinances it may prepare, the board of planning and adjustment may gather maps and aerial photographs of manmade and natural physical features of the area, statistics on past trends and present conditions with respect to population, property values, the economic base of the community, land use, and such other information as is important or likely to be important in determining the amount, direction, and kind of development to be expected in the area and its various parts.

In addition, the board of planning and adjustment may make, cause to be made, or obtain special studies on the location, condition, and adequacy of specific facilities, which may include but are not limited to studies of housing; commercial and industrial facilities; parks, playgrounds and recreational facilities; public and private utilities; and traffic, transportation, and parking facilities.

All city officials shall, upon request, furnish to the board such available records or information as it may require in its work. The board or its agents may, in the performance of its official duties, enter upon lands and make examinations or surveys and maintain necessary monuments thereon.

b.

Comprehensive plan. The comprehensive plan, with the accompanying maps, plats, charts, and descriptive matter, shall be and show the board's recommendations to the city council for the development of said territory, including, among other things, the general location, character, and extent of streets, bridges, boulevards, parkways, playgrounds, squares, parks, aviation fields, and other public ways, grounds, and open spaces; the general location and extent of public utilities and terminals, whether publicly or privately owned or operated, for water, light, sanitation, transportation, communication, power and other purposes; also, the removal, relocation, widening, narrowing, vacating, abandonment, change of use, or extension of any of the foregoing ways, buildings, grounds, open spaces, property, utilities, or terminals.

The plan and any ordinances or other measures to effectuate it shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted, and harmonious development of the city and its environs which will, in accordance with present and future needs, best promote health, safety, morals, and the general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities, services, and other public requirements.

c.

Zoning ordinance. The City of Thomasville has in full force and effect a zoning ordinance. The board is hereby designated as the zoning commission for the City of Thomasville and its environs. It shall prepare and submit to the city council for its consideration and possible adoption any amendment to the zoning ordinance for the control of the height, area, bulk, location, and use of buildings and premises in the area.

The board shall review, from time to time, the existing regulations for the control of land subdivisions in the area and submit to the city council its recommendations, if any, for the revision of said regulations.

The board shall review and make recommendations to the city council concerning all proposed plats of land subdivision.

d.

Public facilities. The board shall review with the city manager and other city officials and report its recommendations to the city council upon the extent, location and design of all public structures and facilities, on the acquisition and disposal of public properties, and on the establishment of building lines, mapped street lines, and proposals to change existing street lines. However, in the absence of a recommendation from the board, the city council may, if it deems wise, after the expiration of 30 days from the date on which the question has been submitted in writing to the board for review and recommendation, take final action.

e.

Miscellaneous powers and duties. The board may conduct such public hearings as may be required to gather information necessary for the drafting, establishment, and maintenance of the comprehensive plan. Before adopting any such plan it shall hold at least one public hearing thereon.

The board shall have power to promote public interest in and an understanding of its recommendations, and to that end it may publish and distribute copies of its recommendations and may employ such other means of publicity and education as it may determine.

Members or employees of the board, when duly authorized by the board, may attend planning conferences or meetings of planning institutes or hearing upon pending planning legislation, and the board may, by formal and affirmative vote, pay, within the board's budget, the reasonable traveling expenses incident to such attendance.

(Ord. No. 644-A, § III, 2-19-90)

a.

Types of appeals and applications. The board shall hear and decide all appeals from and review of any order, requirement, decision, or determination made by the zoning enforcement officer. It shall also hear and decide all matters referred to it or on which the zoning ordinance or minimum housing code of the City of Thomasville requires it to pass. In deciding appeals, the board may hear both those based on an allegedly improper or erroneous interpretation of the ordinance and those based on alleged hardship resulting from strict interpretation of the ordinance.

In the case of an appeal of administrative or staff decision, the official who made the decision (or the successor if no longer employed) must appear as a witness in the appeal pursuant of G.S. 160D-406, and the enforcement actions, including fines, must be paused during the appeal pursuant of G.S. 160D-405.

b.

Procedure for filing appeals and applications. Appeals from the enforcement and interpretation of ordinances and variances shall be filed with the zoning enforcement officer, who shall transmit to the board applications pertaining to such appeals or variances. If the application is for an appeal, it shall be filed within 30 days of the filing of the decision being appealed or the delivery of any required written notice of the decision, whichever is later. All applications shall be made on the form furnished for that purpose, and all information required thereon shall be complete before an appeal may be considered as having been filed.

c.

Hearings.

1.

After a completed application is filed, the secretary of the board shall schedule the application for a quasi-judicial evidentiary public hearing, as provided in G.S. 160D-406 for the next regular meeting of the board that falls at least 21 days from the application filing date.

2.

The board shall cause public notice of the hearing to be given in a newspaper generally circulated in Thomasville by advertisement published at least ten days before the date of the hearing and to be posted on the property in question at least ten days before the date of the hearing. Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal or application, and the time and place of hearing. Notices must be provided to the general public, to the owner of the parcel, owners of all parcels adjoining, and contiguous or separated from the subject property by street, railroad, or other transportation corridor to that parcel as shown on the county tax maps for parcel specific development regulation amendments and the general public pursuant of G.S. 160D-602.

(a)

Notice shall be sent by first class mail to the last addresses listed for such owners on the county tax listings as required by G.S. 160D-602(a).

(b)

The person or persons mailing such notice shall certify to the governing body that proper notice has been given and such certification shall be deemed conclusive in the absence of fraud.

(c)

In the case of comprehensive rezoning of all property within the jurisdiction, notice shall be given as required by G.S. 160D-601.

(d)

Notice of such proposed action shall also be published in a newspaper of general circulation in accordance with G.S. 160D-602.

(e)

The site of the proposed request shall be posted in a conspicuous location(s) with the time, date, and notice of public hearing. Posting shall not be required in the case of comprehensive rezoning.

(f)

Notice of a request for an amendment to this ordinance or an appeal of an interpretation of this ordinance shall be published in a newspaper of general circulation in accordance with North Carolina General Statutes.

(g)

Meeting of the designated board shall have an agenda duly posted in accordance with North Carolina Open Meetings Statute.

(h)

Public notice for updates to the comprehensive land development plan must follow the process mandated for zoning text amendments.

3.

Any party may appear in person, by agent, or by attorney at the hearing. The order of business for each hearing shall be as follows: (a) the chairman, or such person as he shall direct, shall give a preliminary statement of the case; (b) the applicant shall present the evidence and arguments in support of his application; (c) persons opposed to granting the application shall present the evidence and arguments against the application; (d) both sides shall be permitted to present rebuttals to opposing evidence and arguments; (e) the board, in reviewing the evidence presented, shall allow the parties opportunity to make objections or corrections. Witnesses may be called and factual evidence may be submitted, but the board shall not be limited to consideration of such evidence as would be admissible in a court of law. The board may view the premises before the hearing, but the facts indicated by such inspection shall be disclosed at the public hearing and made a part of the record. All witnesses before the board shall be placed under oath by the chairman or acting chairman, and the opposing party may cross examine them.

4.

An application for a rehearing may be made in the same manner as an application for an original hearing. Evidence in support of the application shall initially be limited to what is necessary to enable the board to determine whether there has been a substantial change in the facts, evidence, or conditions in the case. The board shall deny the application for rehearing if, from the record, it finds that there has been no substantial change in facts, evidence, or conditions. If the board finds that a change has occurred, it shall thereupon treat the request in the same manner as any other application.

d.

Powers of the board. The board of adjustment shall have the following powers:

1.

Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the zoning enforcement officer in the enforcement of this ordinance.

2.

Variances. To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship. In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. A variance from the terms of this ordinance shall not be granted by the board of adjustment unless and until it shall make a finding:

2.1.

That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures, or buildings in the same district; and

2.2.

That literal interpretation of the provisions of this ordinance would deprive the applicant of a right commonly enjoyed by other properties in the same district under the terms of this ordinance; and

2.3.

That the special conditions and circumstances do not result from the actions of the applicant; and

2.4.

That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures, or buildings in the same district.

3.

Variances from watershed overlay district requirements. The board of adjustment may authorize variances from the specific requirements of the watershed overlay districts in the same manner and subject to the various procedures and requirements of this article for authorizing other variances, provided that:

3.1.

The notice required in section 3 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

3.2.

Favorable action by the board of adjustment on any major variance, as defined in this ordinance, shall constitute a favorable recommendation but such major variance shall not become effective unless authorized by the North Carolina Environmental Management Commission in accordance with their rules or procedure."

The secretary to the board shall annually submit a report to the North Carolina Environmental Management Commission containing a description of each project receiving a variance and the reason for granting the variance. The report shall contain the record of each variance granted by the board during the previous calendar year and shall be submitted on or before January 1 of the following year.

4.

Interpreting watershed overlay district boundaries. The board of adjustment, in addition to its authority contained in article IV, in interpreting zoning district boundaries and in subsection d.1 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.

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.

5.

Construction. Upon granting of any favorable decision or variance resulting in the issuance of a building permit, the permit must be obtained and construction begun within 180 days of the date of the board of adjustment hearing, after which the decision of the board shall be null and void.

6.

Quasi-judicial Proceeding Guidance.

(a)

In exercising these powers, the board shall follow statutory procedures for quasi-judicial development decisions as set forth in G.S. 160D-102(28). The board must hold an evidentiary hearing to gather competent, material, and substantial evidence to establish the facts of the case. The evidentiary hearing must have testimony under oath and must establish written findings of fact and conclusions of law as provided in G.S. 160D-406.

(b)

The board chair must rule at the evidentiary hearing on objections to inclusion or exclusion of administrative material; such ruling may be appealed to the full board pursuant of G.S. 160D-406(d).

(c)

Must allow parties with standing to participate fully in the evidentiary hearing, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments; may allow non-parties to present competent, material, and substantial evidence that is not repetitive pursuant of G.S. 160D-406(d).

e.

Fees. A fee established by the city council shall be paid to the City of Thomasville, North Carolina, for each application for a variance, exception or appeal, to cover the necessary administrative costs and advertising.

f.

Decisions.

1.

Time. Decisions by the board shall be made not later than 30 days from the time of the hearing.

2.

Form. The board's final decision shall be shown in the record of the case as entered in the board's minutes and signed by the board. Such record shall show the reasons for the determinations, with a summary of the evidence introduced and the findings of fact made by the board. When a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the appeal was based and which the board finds to exist. The decision may reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from. The record shall state in detail what, if any, conditions and safeguards the board imposes in connection with granting of a variance. A separate record of the decision in each case shall be kept.

3.

Expiration of permits. Unless otherwise specified, any order or decision of the board granting a variance shall expire if the applicant does not obtain a building permit or certificate of occupancy for such use within six months from the date of decision.

4.

Voting at hearings. The concurring vote of four-fifths of the board members shall be necessary to reverse any order, requirement, decision, or determination of the zoning enforcement officer, to decide in favor of the applicant any matter on which the board is required by ordinance to pass, or to grant a variance from the ordinance provisions.

5.

Notice and public record of decisions. The secretary shall give written notice of the decision in the case to the appellant and/or the applicant and to every aggrieved party who has filed a written request for such notice with the secretary of the board when the hearing is held. Such notice may be delivered either by personal service or by registered mail or certified mail, return receipt requested. The decision shall be a public record, available for inspection at all reasonable times.

g.

Review. Every decision of the board shall be subject to review by the superior court of Davidson County by proceedings in the nature of certiorari.

h.

Conflict of interest.

1.

Board members: No member of the board shall seek to influence a decision, participate in any action, or cast a vote involving any matter that is before the board where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship which may result in a private benefit to the member, relative, or their business interest. In applying this rule, the following procedure shall govern:

• A member who determines there exists a conflict of interest shall declare the existence of a conflict and shall refrain from any deliberation on the matter.

• A member who believes there may exist a conflict of interest shall declare his or her possible conflict and ask for a determination by the board. A majority vote of the board shall determine whether or not a conflict of interest exists.

• A challenge of the existence of a conflict of interest or a challenge of an undisclosed conflict of interest may be filed by any interested party with the board. Such a challenge may be an appeal for a review of the finding of the board or may be for the purpose of alleging an undeclared conflict of interest. Any challenges made to the board shall be supported by competent evidence and shall be submitted to a property convened meeting of the board. The board shall hear all evidence and shall, by majority vote, make the final determination as to the existence of a conflict of interest.

• Withdrawal from participation in any matter is necessary only in those specific cases in which a conflict arises. There shall be no attempt to exclude entire categories of considerations because of the business or profession with which a member is associated.

(Ord. No. 644-A, § III, 2-19-90; Ord. of 6-21-93(2), pt. 6; Ord. No. 06-2021-ORD12, § 1(Exh. 1), 6-21-21)

The board of planning and adjustment shall, in April of each year, submit in writing to the city council a written report of its activities, an analysis of the expenditures to date for the current fiscal year, and, for review and approval, its requested budget of funds needed for operation during the ensuing fiscal year.

The board is authorized to receive contributions from private agencies and organizations or from individuals, in addition to any sums which may be appropriated for its use by the city council of the City of Thomasville. It may accept and disburse such contributions for special purposes or projects, subject to any specified conditions which it deems acceptable, whether or not such projects are included in the approved budget.

The board is authorized to appoint such committees and employees, and to authorize such expenditures, as it may see fit, subject to the limitations of funds provided for the board by the city council of the City of Thomasville's annual budget.

The secretary to the Board shall annually submit a report to the North Carolina Environmental Management Commission containing a description of each project receiving a variance and the reason for granting the variance. The report shall contain the record of each variance granted by the board during the previous calendar year and shall be submitted on or before January 1 of the following year.

(Ord. No. 644-A, § III, 2-19-90; Ord. of 1-24-94(1), pt. II)

The board of planning and adjustment may seek the establishment of an unofficial advisory council and may cooperate with city council to the end that its investigations and plans may receive fullest consideration, but the board may not delegate to such advisory council any of its official prerogatives.

The board may set up special committees to assist it in the study of specific questions and problems.

(Ord. No. 644-A, § III, 2-19-90)

Should any section, paragraph, sentence, clause, or phrase of this ordinance be declared unconstitutional or invalid for any reason, the remainder of the ordinance shall not be affected.

(Ord. No. 644-A, § III, 2-19-90)