Vance County Unincorporated
City Zoning Code

BOARD OF

ADJUSTMENT

§ 156.150 GENERALLY.

The Board of Adjustment is charged with hearing and deciding on special use permits, variances, and appeals from orders and interpretation of the Planning and Development Director or his/her designee.

(Ord. 39, passed 10-3-2011; Am. Ord. 5-3-2021)

§ 156.151 AUTHORITY.

A Board of Adjustment (Board) is hereby established pursuant to G.S. § 160D-109. (Note: Conflict of interest rules are stated in G.S. § 160D-109(d) - (e)). A member of the Board or any other body exercising the functions of the Board 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.

(Ord. 39, passed 10-3-2011; Am. Ord. 5-3-2021)

§ 156.152 MEMBERSHIP.

(A) The Board of Adjustment shall consist of 7 members, and initially be those current members of the Planning Board. As seats become available thereafter, each Board of Adjustment seat shall be assigned a separate Board of Commissioners district until all 7 seats shall be so assigned. The Board of Commission member then currently serving from the designated district shall have the right to nominate an individual to fill the seat, with the Board of Commissioners to make the final decision of appointment. In addition to the 7 full time members of the Board of Adjustment, up to 2 at-large alternates may be appointed and available to serve in a member's absence. Terms of office shall be for a 3 year period, with the initial Board Member's term being consistent with their current term on the Planning Board.

(B) Additionally should any of the municipalities within the county elect to allow Vance County to administer this chapter within their jurisdictions, each of the municipalities shall have the option of nominating 1 additional alternate member from that jurisdiction that shall be considered a full voting member for issues within that jurisdiction's boundaries only. These alternate members are encouraged to voice opinions and recommendations concerning matters outside of their jurisdiction but shall have no vote on these matters. The nomination from the municipalities shall not be official without Board of Commissioner approval.

(1) To hear and decide appeals from and review any order, requirement, decision, determination, or interpretation made by an administrative official charged with enforcing this chapter.

(2) To hear and decide any exceptions which are specifically delegated to it by this chapter.

(3) To determine and vary application of zoning regulations in harmony with their general purpose and intent and in accordance with general and specific rules contained herein.

(4) To hear and decide appeals for variances from the zoning provisions of this chapter in cases where special conditions would make strict and literal interpretation and enforcement of the zoning provisions of this chapter result in a loss of privileges shared by other properties within the same zoning zone.

(5) To interpret zoning maps and pass upon disputed questions of zone boundary lines and similar questions that may occur in the administration of this chapter.

(6) To hear and decide all matters referred to it or upon which it is required to pass under this chapter.

(Ord. 39, passed 10-3-2011)

§ 156.153 VOTING.

(A) Required vote for approval. A 4/5 vote of its members shall be required 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.

(B) Vote of the Chairperson. The Board Chairperson shall vote as any other Board member.

(C) Delay of decision. The Board may, direct that its decision be delayed to a date and time specific subsequent to the Board's vote on an appeal, not to exceed 30 days.

(D) NOTE: Voting requirements of the Board of Adjustment are established under G.S. § 160D-406 as referenced): The concurring vote of 4/5 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 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.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014; Am. Ord. 5-3-2021)

§ 156.154 COURT REVIEW.

(A) Appeal to Superior Court. Each decision of the Board shall be subject to Superior Court review by proceedings in the nature of certiorari.

(B) Timing of appeal.

(1) Any petition for review by the Superior Court shall be filed with the Clerk of Superior Court within 30 days after the decision by the Board is filed in the Planning and Development Department; or

(2) After a written copy thereof is delivered by first class mail, to every aggrieved party who has filed a written request for such copy with the Secretary or Chairperson of the Board at the time of its hearing of the case, whichever is later.

(Ord. 39, passed 10-3-2011; Am. Ord. 5-3-2021)

§ 156.155 NOTICE OF HEARING/DECISIONS.

(A) Hearing notice. Notice of quasi-judicial hearings shall be mailed to the person or entity whose appeal, application, or request is subject to the hearing, to the owner of the property that is 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 this chapter. For the purpose of this section, properties are "abutting" even if separated by a street, railroad, or other transportation corridor. In the absence of evidence to the contrary, the county may rely on the tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least 10 days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the county 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.

(B) Decision notice. The decision of the Board may be delivered by personal service or first class mail to the aggrieved party. The Board is authorized to impose reasonable and appropriate conditions upon decisions/permits that are issued.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014; Am. Ord. 5-3-2021)

§ 156.156 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.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014)

§ 156.157 APPEALS TO THE BOARD OF ADJUSTMENT.

The Board shall hear and decide appeals decisions of administrative officials charged with enforcement of this chapter and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to the following:

(A) Appeal eligibility. Any person who has standing under G.S. § 160D-1402(c) may appeal a decision of the Board. An appeal is taken by filing a notice of appeal with the County Clerk. The notice of appeal shall state the grounds for the appeal.

(1) The official who made the decision shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.

(2) The owner or other party shall have 30 days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have 30 days from receipt from any source of actual or constructive notice of the decision within which to file an appeal.

(3) The official who made the decision shall transmit to the Board all documents and exhibits constituting the record upon which such action appealed from was taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is subject of the appeal if the appellant is not the owner.

(B) Effect of appeal. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the officer who made the decision certifies to the Board after notice of appeal has been filed that because of facts stated in an affidavit, a stay would cause imminent peril to life or property or that because the violation is transitory in nature, a stay would seriously interfere with enforcement of this chapter. In that case, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court. 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 request is filed.

(C) The Board shall fix a reasonable time for hearing the appeal, not to exceed 30 days, give due notice of the appeal to the parties, and decide the appeal within a reasonable time. The Board may reverse or affirm, in whole or in part, or may modify the order, requirement, decision, or determination or interpretation appealed from, and shall make any order, requirement, decision, determination or interpretation that in the Board's opinion ought to be made under the circumstances.

(Ord. 39, passed 10-3-2011; Am. Ord. passed 12-1-2014; Am. Ord. 5-3-2021)

§ 156.158 VARIANCES.

(A) Application. An application for a variance shall be submitted in writing to the Board by filing a copy of the completed application with the Zoning Administrator or Planning Director.

(B) Procedure. The Board shall:

(1) Fix a reasonable time for holding a quasi-judicial hearing on the variance request;

(2) Give notice of the variance request as prescribed in §§ 156.120 through 156.131; and

(3) Decide the variance request within a reasonable time.

(4) Note: The Board shall make findings of fact that the requirements of § 156.128, have been met by the applicant. The variance requested is the minimum variance that will make possible the reasonable use of the land, building or structure. Board shall not, under any circumstances, grant a variance to permit a use or density not otherwise permitted by this chapter in the zone involved. Neither the nonconforming use of lands, buildings or structures in the same zone, nor the permitted use of lands, buildings or structures in other zoning zones shall be considered as grounds for the issuance of a variance.

(C) Granting of variance. A variance may be granted by the Board if evidence that is presented by the applicant persuades the Board to reach the following conclusions:

(1) There are unnecessary hardships (as defined under § 156.121) that would result from the strict enforcement of this chapter. The Board may reach this conclusion if it finds that:

(a) The 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.

(D) Conditions. In granting a variance, the Board may prescribe such reasonable and appropriate conditions and safeguards as will assure the use of the property to which the variance applies will be compatible with surrounding properties and will not alter the essential character of the neighborhood.

(1) Violations of such conditions and safeguards, when a part of the terms under which the variance is granted, shall be deemed a violation of this chapter.

(2) A variance granted subject to a condition shall be permitted only so long as there is compliance with the condition.

(3) If a violation of a variance occurs, the applicant shall have 30 days to correct the violation, otherwise the Enforcement Officer may revoke the certificate of occupancy.

(4) In the event that any such condition is held invalid, for any reason, such holding shall have the effect of invalidating the variance granted and shall render the variance null and void.

(E) Duration. The variance may be issued for an indefinite duration or for a specified duration only. Unless otherwise specified, construction or operation shall be commenced within 12 months of the date of issue.