Article 11.3 - Appeals & Variances
.1 Board of Adjustment
The Board of Adjustment of the Town of Huntersville (the “Board of Adjustment”) shall consist of seven regular members and three alternate members. The regular membership shall consist of six members who reside within the corporate limits, appointed by the Town Board, plus one extraterritorial member. The number of regular members appointed who reside in the extraterritorial zoning jurisdiction shall at a minimum meet the requirements of N.C.G.S. 160D-307 for proportional representation, but shall in no instance be less than one. The alternate membership shall consist of at least two members who reside within the corporate limits, with the remaining alternate member residing in either the corporate limits or the extraterritorial jurisdiction of Huntersville.
b) Members from Within the Town Limits.
Each member and alternate shall be appointed by the Town Board for a term of three years. The terms of membership shall be staggered; therefore, in appointing the original members or in the filling of vacancies caused by the expiration of the terms of existing members, the Town Board may appoint certain members for less than three years to the end that thereafter the terms of all members shall not expire at the same time. The expiration date for each term shall be the 30th day of June of the year in which said term is to expire and the term of office of the succeeding member shall begin on the 1st day of July. If the original members are appointed such that their terms of office begin prior to a July 1 date, such terms of original members shall be extended by the period of time between their appointment and June 30th of the year of their appointment, it being the intent of this proviso that original members shall serve terms of one, two, or three years plus a period of time between their initial appointments and June 30th of the year of their initial appointments. For purposes of this section, original appointments refer to members and alternates appointed upon first establishment of the Board of Adjustment, and to members and alternates appointed to newly created seats upon any expansion of the Board of Adjustment.
c) Extraterritorial Members.
In addition to the members and alternates herein above provided for, members of the Board of Adjustment shall be appointed from the area within the extraterritorial jurisdiction of the Town of Huntersville, pursuant to the appointment process prescribed in N.C.G.S. 160D-307. Members so appointed shall have all of the obligations and duties of the other members of the Board of Adjustment, including rights to vote on all matters coming before the Board. Each extraterritorial member shall be appointed for a period of three years. Expiration dates for each term, initially and thereafter, shall be the 30th day of June of the year in which said term is to expire and the term of office of the succeeding member shall begin on the 1st day of July; provided further that if the original members are appointed such that their terms of office begin prior to a July 1 date, such terms of original members shall be extended by the period of time between their appointment and June 30 of the year of their appointment. Eligibility for reappointment shall be determined by the procedures and policies established by the appointing body.
d) Term Limits And Service Limits
Members and alternates shall be limited to serving two (2) consecutive terms; however, a member or alternate may be reappointed to the Board of Adjustment after remaining off of the Board for at least one (1) year. Time spent as an alternate member shall not count in determining whether an alternate is eligible for appointment as a regular member. Additionally, appointment to a vacant position as an alternate or regular member to fill an unexpired term shall not be counted in determining eligibility for appointment or reappointment. No person shall be eligible for appointment as a regular or alternate member if such person is serving on any other board or commission appointed by the Board of Commissioners, unless such other service is in an ex officio capacity. These terms limits and service limits shall apply to both members and alternates residing in the corporate limits and within the extraterritorial jurisdiction of the Town of Huntersville. Notwithstanding the foregoing, the Board of Commissioners shall have the discretion to waive these term limits and service limits for a particular position on the Board of Adjustment when there are no other members of the public willing to serve in the position, or in other appropriate circumstances as determined by the Board of Commissioners.
1) Meetings. All meetings of the Board of Adjustment shall be held at a regular place and shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, an indication of such fact. Final disposition of appeals or variances shall be recorded in the minutes, indicating the reasons of the Board therefore, all of which shall become a part of the public record.
2)Quorum Required. No final action shall be taken on any matter unless a quorum is present. A quorum is the majority of the members of the Board or, for variance actions (which require the concurring vote of 4/5ths of the Board), 4/5ths of the membership.
F) Powers and Duties. The Board of Adjustment shall have the following powers and duties:
1) Administrative Review. To hear and decide appeals according to the procedures of this section, where it is alleged there is an error in any order, decision, determination, or interpretation made by the Zoning Administrator or designated administrative officer in the enforcement of this ordinance.
2) Variances. To hear and decide applications for variances from the terms of this ordinance according to the standards and procedures herein so that the spirit of the ordinance is observed, public safety and welfare secured, and substantial justice done. Appropriate conditions, which must be reasonably related to the condition or circumstance that gives rise to the need for a variance, may be imposed by the Board.
3) Density Averaging Certificates. To hear and decide applications for density averaging certificates for paired-parcel averaged-density development, acting as the Watershed Review Board, to ensure both parcels considered together meet the standards of the ordinance and that potential owners have notice of how the watershed regulations were applied to the parcel pair.
.2 Appeals and Variances
a) Petition to Board of Adjustment for Appeal or Variance.
1) An appeal of an administrative decision may be initiated by any person with standing or by the local government.
2) A petition for variance may be initiated only by the owner of the affected property, an agent authorized in writing to act on the owner’s behalf, or a person having a written contractual interest in the affected property.
The Board of Adjustment shall hear and decide appeals of administrative decisions of administrative officials charged with enforcement of the zoning and subdivision ordinances and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:
1) Any person who has standing under G.S. 160D-1402(c), or the Town may appeal a decision to the Board of Adjustment. An appeal is taken by filing a Notice of Appeal with the Clerk to the Board of Adjustment. The Notice of Appeal shall state the grounds for the appeal.
2) The official who made the decision shall give written notice of the determination 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.
3) The owner or other party shall have 30 days from receipt of the written notice of the determination 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.
4) The official who made the decision shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the decision appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner. The record may be provided in written or electronic form.
5) Timely appeals of a notice of violation or other administrative decision shall stay enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the Board of Adjustment and any subsequent appeal in accordance with N.C.G.S. § 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom. After notice of the appeal has been filed, if the official who made the decision certifies to the Board of Adjustment that, because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or, because the violation is transitory in nature, a stay would seriously interfere with enforcement of the ordinance, the enforcement proceedings shall not be stayed except by a restraining order 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 of Adjustment shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the ordinance shall 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 of Adjustment may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
6) Subject to the provisions of subdivision (6) of this subsection, the Board of Adjustment shall hear and decide the appeal within a reasonable time.
7) The applicant, the local government, and any person with standing to appeal 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 of Adjustment. The official who made the decision shall be present at the hearing as a witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the Town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board of Adjustment shall continue the hearing.
8) The Board of Adjustment 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.
9) When hearing an appeal pursuant to N.C.G.S. § 160D-947(e) 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 N.C.G.S. § 160D-1402(j).
c) Standards for Granting an Appeal.
1) The Board of Adjustment shall reverse or modify the order, decision, determination, or interpretation under appeal only upon finding an error in the application of these regulations on the part of the officer rendering the order, decision, determination, or interpretation.
2) In modifying the order, decision, determination, or interpretation, the Board of Adjustment shall have all the powers of the official from whom the appeal is taken.
d) Filing a Variance Petition.
A petition for variance, in the form prescribed by the Board of Adjustment, shall be filed with the Clerk to the Board of Adjustment or designated administrator, accompanied by a non-refundable filing fee as established by the Town Board and a list of adjoining properties including tax parcel numbers and the name and address of each owner.
e) Standards for Granting a Variance.
When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing of all the following:
1) 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.
2) Notice of Hearing. – Notice of Hearings conducted pursuant to this section 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 zoning or subdivision ordinance. In the absence of evidence to the contrary, the Town 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 10 days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the Town 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 of Adjustment may continue an evidentiary hearing that has been convened without further advertisement.
3) 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.
4) 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.
f) No change in permitted uses may be authorized by variance.
Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this section.
g) Notice and Hearing.
1) The Board of Adjustment shall, in accordance with rules adopted by it for such purpose, hold public hearings on any appeal or variance petition which comes before it.
2) Notice of Hearing. - Notice of Hearings conducted pursuant to this section 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 is 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 entitles to receive notice as provided by the zoning or unified development ordinance. In the absence of evidence to the contrary, the Town 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 10 days, but no more than 25 days, prior to the date of the hearing. Within that same time period, the Town 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.
h) Action by the Board of Adjustment.
1) The concurring vote of four fifths (4/5ths) 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 purposes of this subsection, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter shall not be considered member of the Board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
2) A member 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 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. For purposes of this section, a “close familial relationship” means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships. 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.
3) Quasi-Judicial Decisions. The Board shall determine contested facts and make its decision within a reasonable time. 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 and reflect the Board's determination of contested facts and their application to the applicable standards. The written decision shall be 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 office or official as the ordinance specified. The decision of the Board shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date of decision becomes effective. The person required to provide notice shall certify that proper notice has been made.
4) 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 of Adjustment determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
5) Subpoenas. The Board of Adjustment through the Chair, or in the Chair’s absence anyone acting as Chair, may subpoena witnesses and compel the production of evidence. To request the issuance of a subpoena, the applicant, 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 appealed to the full Board of Adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the Board of Adjustment 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) Effect of Grant of Variance or Reversal or Modification of Administrative Decision.
After the Board of Adjustment approves a variance, or reverses or modifies an order, decision, determination, or interpretation of an administrative official, the appellant or petitioner shall be responsible for obtaining a building permit and/or certificate of occupancy, as applicable, in order to proceed with the development of the subject property. All orders, decisions, determinations, and interpretations made by administrative officials under those procedures shall be consistent with the variance, reversal, or modification granted to the appellant or petitioner by the Board of Adjustment.
The Board of Adjustment shall refuse to hear an appeal or variance petition which has been previously denied unless it finds that there have been substantial changes in the conditions or circumstances relating to the matter.
k) Appeal from Board of Adjustment.
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. A petition for review shall be filed with the Clerk of Superior Court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with subsection 11.3.2(h)(3). When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.
.3 Standards for Granting an Administrative Waiver
a) Purpose and Intent
The Zoning Administrator (which term shall include an administrative official designated by the Town Manager to perform these functions) is authorized to grant an administrative waiver of minor deviations from measurable and quantifiable standards of this ordinance subject to the following limitations:
1) the standard for which the waiver can be granted must be a quantifiable and/or measurable standard set forth in the ordinance. Such standards may include, but are not necessarily limited to, height requirements and limitation, yard requirements, parking requirements, screening or buffer requirements, planting requirements, ratio requirements, density requirements, spacing requirements, signage requirements and other similar measurable and quantifiable standards.
2) The Zoning Administrator shall grant such waiver only after the requesting party has demonstrated that such minor deviation was a result of an unintended error or unique conditions of the property, does not and will not violated the spirit and harmony of the ordinance, and does not and will not adversely affect the rights of other property owners in any material manner.
3) The minor administrative waiver may not deviate by more than three% (3%) any of the standards for which the waiver is given.
The authority given to the Zoning Administrator to grant such waivers shall be construed to be permissive and not mandatory and the Zoning Administrator may decline to make such waiver, and instead, require that the applicant seek a variance from the Board of Adjustment. The Zoning Administrator may not grant any waiver affecting the use or zoning classification; however, this shall not be construed as limiting the zoning Administrator’s duties and rights under the ordinance, and whose decisions are appealable to the Board of Adjustment.