(a)

There shall be and hereby is created a Board of Adjustment, hereinafter called the Board, consisting of five (5) members and two (2) alternates. Two (2) members of the Board and one (1) alternate shall be appointed by the Board of County Commissioners. Three (3) members and one (1) alternate shall be appointed by City Council in accordance with section 2-531(a). Appointments shall be for three-year terms.

(b)

The Council may, in its discretion, appoint alternate members to serve on the Board in the absence or temporary disqualification of any regular member or to fill a vacancy pending appointment of a member. Alternate members shall be appointed for the same term, at the same time, and in the same manner as regular members. Each alternate member, while attending any regular or special meeting of the Board and serving on behalf of any regular member, shall have and may exercise all the powers and duties of a regular member.

(c)

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

(Code 1993, § 27-203; Ord. No. 06-02, § 7, 2-13-2006; Ord. No. 21-3, § 1(Att.), 6-14-2021)

Cross reference— Removal of members, § 2-531.

State Law reference— Appointment of board members, G.S. 160D-302.

Vacancies occurring for other than expiration of term shall be filled as they occur for the remainder of the unexpired term and such vacancy shall be filled by the body making the original appointment. Members shall serve without pay but may be reimbursed for any expenses incurred while representing the Board.

(Code 1993, § 27-204)

Absences are subject to the provisions of section 2-531(b).

(Code 1993, § 27-205)

The two (2) regular members and one (1) alternate member of the Board appointed by the Board of County Commissioners as representatives of the extraterritorial area outside of and contiguous to the city limits of the city, as defined in section 40-4, shall be residents of such area and residents of the county. In order to ensure proportional representation from the territorial jurisdiction outside of city limits, population estimates of such area shall be updated no less frequently than after each decennial census. All members of the Board, whether appointed by the City Council or by the Board of County Commissioners, shall have equal rights, privileges, and duties with all other members of the Board in all matters, regardless of whether the matters at issue arise within the city or within the extraterritorial area. Each alternate member, while attending any regular or special meeting of the Board and serving in the absence of any regular member, shall have and may exercise all of the rights, privileges, and duties of a regular member for whom he is substituting.

(Code 1993, § 27-206; Ord. No. 21-3, § 1(Att.), 6-14-2021)

(a)

The Board shall adopt rules governing its organization and for all proceedings before it in accordance with section 2-532.

(b)

At the first meeting after the membership of the Board has been changed through the expiration of one (1) or more terms, the Board shall elect a chairman and a vice-chairman from within its membership. The chairman, or the vice-chairman, in the absence of the chairman, shall preside at all meetings of the Board. The chairman of the Board or the vice-chairman is authorized in his official capacity to administer oaths to witnesses in any matter coming before the Board.

(c)

The Board shall appoint a secretary and such other officers as may be authorized by the City Council. Said secretary may be an employee of the city upon approval of the City Manager of the city.

(d)

The Director of Planning and Development, or his designee, shall serve as staff advisor to the Board.

(Code 1993, § 27-207)

(a)

The Board shall keep minutes of its proceedings in a book maintained for the purpose of showing the vote of each member upon each question, and, if absent or failing to vote, an indication of such fact. Final disposition of all cases shall be by written order with the findings of fact stated, and the reasons thereof, all of which shall be a matter of public record.

(b)

Unless otherwise specified, any order or decision of the Board shall expire and become void if a building permit or certificate for such use is not obtained within two (2) years from the date of said order or decision.

(Code 1993, § 27-208)

No final action shall be taken unless a quorum is present. The quorum shall consist of four (4) members of the Board. To secure a quorum, an alternate member may be used in the absence of a regular member.

(Code 1993, § 27-209; Ord. No. 21-3, § 1(Att.), 6-14-2021)

(a)

All evidence and testimony shall be presented publicly, and the Board may consider all relevant facts within the personal knowledge of any member of the Board, but such facts should be stated publicly in the hearing. All testimony must be under oath. The Chairman of the Board must rule on objections to inclusion or exclusion of administrative material.

(b)

All meetings of the Board shall be held at a regular time and place, and at such other times and places as the Board may determine. All meetings of the Board shall be open to the public. Due notice shall be given to all parties in interest and public hearings shall be advertised when required under the provisions of this chapter. The staff advisor to the Board shall begin each request by offering staff comments regarding the request and answering any questions regarding the request or the procedure. After staff comments, persons speaking on behalf of the request and persons speaking against the request shall have the opportunity to speak and answer the questions of the Board and the staff.

(Code 1993, § 27-210; Ord. No. 21-3, § 1(Att.), 6-14-2021)

(a)

An appeal to the Board may be taken by any person aggrieved or by any officer, department, or Board of the city from any order, requirement, decision, or determination made by the Department of Planning and Development which is based in whole or in part upon the provisions of this article; or from any other decision for which the Board is authorized by law to hear appeals.

(b)

Such appeals shall be taken within a reasonable time as provided by the rules of the Board by filing with the Department of Planning and Development and with the Board a notice of appeal and specifying the grounds thereof. The Department of Planning and Development shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

(c)

The Board shall refuse to consider an appeal or application previously denied, if it finds that there has been no substantial changes in conditions or circumstances bearing on the appeal or application.

(d)

The official who made the decision or the person currently occupying that position if the decision-maker is no longer employed by the city shall be present at the hearing as a witness.

(e)

Appeals of administrative determinations must be made within thirty (30) days of the date of the determination. In the absence of evidence to the contrary, notice pursuant to G.S. 160D-403(b) given by first class mail shall be deemed received on the third business day following the deposit of the notice for mailing with the United States Postal Service.

(f)

Parties with standing are allowed to participate fully in the hearing, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments.

(Code 1993, § 27-211; Ord. No. 21-3, § 1(Att.), 6-14-2021)

An appeal stays all proceedings in furtherance of the action appealed from unless the Director of Planning and Development certifies to the Board after the notice of the appeal shall have been filed with him, that by reason of the facts stated in the certificate a stay would, in his opinion, cause immediate peril to life or property or that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of this chapter. 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 Department of Planning and Development from whom the appeal is taken and on due cause shown.

(Code 1993, § 27-212)

The Board of Adjustment shall have the following powers and duties:

(a)

Administrative review. Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Department of Planning and Development in the enforcement of this chapter.

(b)

Special use permits. To grant in particular cases and subject to appropriate conditions and safeguards permits for special uses as authorized by the table of uses. The Board shall not grant a special use permit unless and until:

(1)

A written application for a special use permit is submitted indicating the section of this chapter under which the special use permit is sought.

(2)

The application referred to and a recommendation is received from the Planning Board when required.

(3)

A public hearing is held, with notice given pursuant to section 40-515. A person may appear in person or by an agent or attorney. Parties with standing are allowed to participate fully in the hearing, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments.

(4)

The Board finds that the circumstances of the particular application and the use for which the special use permit is sought will meet the criteria for special uses set out in article V of this chapter, pertaining to standards and criteria for special uses, especially with respect to the effect of the request on the public health, safety and welfare, and the value of property.

(5)

The Board may place any restrictions and requirements it deems necessary on any special use permit granted. The Board of Adjustment must not impose conditions on special use permits that the local government does not otherwise have statutory authority to impose. Further, the Board shall obtain the landowner's and/or applicant's written consent to the conditions related to any special use permit granted under these regulations.

If at any time after a special use permit has been issued for any special use, the Board finds that the conditions imposed and agreements made have not been or are not being fulfilled by the holder of a special use permit, the permit shall immediately be terminated and the operation of such a use discontinued. If a special use permit is terminated for any reason, it may be reinstated only after the steps listed above in subsections (b)(1) through (b)(5) of this section have been met.

(c)

Variances. 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 would result in unnecessary hardship. A variance from the terms of this chapter shall not be granted by the Board unless and until:

(1)

A written application for a variance is submitted demonstrating:

a.

If the property owner complies with the provisions of this chapter, he can secure no reasonable return from or make no reasonable use of his property;

b.

The hardship is not the result of the applicant's own actions; and

c.

The variance, if granted, will be in harmony with the general purpose and intent of this chapter and will preserve its spirit.

(2)

A public hearing is held, with notice given pursuant to section 40-515. A person may appear in person or by an agent or attorney. Parties with standing are allowed to participate fully in the hearing, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments.

(3)

The Board makes a finding that the requirements of subsection (c)(1) of this section have been met by the applicant for a variance.

(4)

The Board shall further make findings that the variance to be granted is the minimum variance and that the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

(5)

In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this chapter. Violations of such conditions and safeguards when made a part of the terms under which the variance is granted shall be deemed a violation of this chapter, punishable according to the provisions of article XXI of this chapter.

(6)

Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this chapter in the district involved or any use expressly or by implication prohibited by the terms of this chapter in such district.

(7)

When practical difficulties or unnecessary hardships would result from carrying out the strict letter of a zoning chapter, the Board of Adjustment shall have the power to vary or modify any of the regulations or provisions of the chapter so the spirit of the chapter shall be observed, public safety and welfare secured, and substantial justice done. No change in permitted uses may be authorized by variance. Appropriate conditions, which must be reasonably related to the condition or circumstance that gives rise to the need for a variance, may be imposed on any approval issued by the Board. These regulations may provide that a Board of Adjustment may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained, provided no change in permitted uses may be authorized by variance.

(d)

City Council special use procedures. When deciding special use permits as required by the zoning ordinance, the City Council shall follow quasi-judicial procedures.

(Code 1993, § 27-213; Ord. No. 06-02, §§ 9—11, 2-13-2006; Ord. No. 21-3, § 1(Att.), 6-14-2021)

State Law reference— Special use permits, G.S. 160D-406.

In exercising the powers listed in section 40-512, the Board of Adjustment may, so long as such action is in conformity with the rest of this chapter, reverse or affirm wholly or partly or may modify the order, requirement, division, or determination as ought to be made, and to that end shall have powers of the administrative official from whom the appeal is taken.

(Code 1993, § 27-214)

(a)

Conflicts. 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, the remaining members shall by majority vote rule on the objection.

(b)

Variance voting. A concurring 4/5 ^ths majority vote is required to pass a variance. 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 required supermajority, if there are no qualified alternates available to take the place of such members. Members who are otherwise not in attendance are still considered members for the calculation of the required supermajority.

(c)

Special use voting. A majority vote is required to issue special use permits. 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 required majority. Members who are otherwise not in attendance are still considered members for the calculation of the required majority.

(d)

Appeal voting. A majority vote shall be required for the Board of Adjustment to uphold or overturn an appeal. 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 required majority. Members who are otherwise not in attendance are still considered members for the calculation of the required majority.

(Ord. No. 06-02, § 8, 2-13-2006; Ord. No. 21-3, § 1(Att.), 6-14-2021)

State Law reference— Special use permits and voting requirements G.S. 160D-406.

Before conducting a evidentiary public hearing to consider an appeal or the issuance or granting of a special use permit or a variance, notice of the public hearing shall be mailed at least ten (10) days but no more than twenty-five (25) days before the hearing to the person or entity whose appeal, application, or request is the subject of the hearing; to the property owner 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. Further, within the same time period, the city shall post notice on the site that is the subject of the hearing or on an adjacent right-of-way.

(Code 1993, § 27-216; Ord. No. 21-3, § 1(Att.), 6-14-2021)

Any person jointly or severally aggrieved by any decision of the Board, or any citizen or any officer, department, or Board of the city, within thirty (30) days after the filing of the decision rendered by the Board of Adjustment in the Department of Planning and Development, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the Secretary or the Chairman of the Board at the time of its hearing of the case, whichever is later, may present to Superior Court a petition for a writ of certiorari, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality, whereupon such decision of the Board shall be subject to review as provided by law.

(Code 1993, § 27-217)