DRAFT
ZONING BOARD OF ADJUSTMENT
BY LAWS
The Zoning Board of Adjustment,
hereinafter called the Board, shall be governed by the terms of Article 19 of
Chapter 160A of the General Statues of
Chairperson. A chairperson shall be appointed by the Town
Council from the membership of the Board.
His/her term shall be for one year, beginning February 1, and he/she
shall be eligible for reappointment. The
chairperson shall decide upon all points of order and procedure, subject to
these rules, unless directed otherwise by a majority of the Board in session at
the time. The chairperson shall appoint
any committees found necessary to investigate any matters before the Board.
Vice-Chairperson. A vice-chairperson shall be appointed from
the membership of the Board, and approved by a majority vote of the
Board membership for the same term as the chairperson. He/she shall serve as acting chairperson in
the absence of the chairperson, and at such time he/she shall have the same
powers and duties as the chairperson.
Secretary. A Secretary shall be assigned to the Board by
the Town Manager or his designee. The Secretary
shall be eligible for reappointment. The
Secretary, subject to the direction of the chairperson and the Board, shall prepare
minutes, keep all records, shall conduct all correspondence of the Board, and
shall generally supervise the clerical work of the Board. The minutes shall show the record of all
important facts pertaining to each meeting and hearing, every resolution acted
upon by the Board, and all votes of members of the Board upon any resolution
acted upon by the Board, and all votes of members of the Board upon any
resolution or upon the final determination of any question, indicating the
names of members absent or failing to vote.
The Board shall consist of the number of members established by the Code
of Ordinances. All members shall serve a
term of three (3) years. Members of the Board
shall be appointed by the Town Council, and one (1) member to represent the
extraterritorial zoning jurisdiction (ETJ) of the Town of
Regular. Shall be held on the second Monday of each
month at
Special. May be called at any time by the Chairperson,
provided at least forty-eight (48) hours notice of the time and place of the
special meeting is given by the Secretary or by the Chairperson to each board
member.
Cancellation of Meetings. Whenever there is no business to come before the
Board, or whenever a sufficient number of members notify the Secretary of
inability to attend such that a quorum will not be available, the Chairperson
may dispense with a regular meeting by giving written or oral notice to all
members. (Note: The Chairperson
may designate the Secretary to provide such notice). Members unable to attend shall notify the Secretary
by
Quorum. A
quorum for all matters shall be a majority of Board members.
Voting. The
concurring vote of four-fifths of Board members shall be necessary to reverse
any order, requirements, decision, or determination of any administrative
official charged with the enforcement of an ordinance adopted pursuant to
Article 19 of Chapter 160A of the General Statutes of North Carolina, or to
decide in favor of the applicant any matter upon which it is required to pass
under any ordinance, or to grant a variance from the provisions of said
ordinance. Other votes require only
majority approval, unless otherwise specified in these rules. Majority approval means a majority of those
members present and voting at a meeting.
Additionally, Board members may participate in meetings via phone,
however, are unauthorized to cast a vote on presented cases.
In addition, the following rules
shall be observed:
If
a motion to approve an issue fails to receive the required four-fifths vote,
(a) the petition shall be deemed to be denied, and (b) the same motion shall
not be allowed a second time. However,
other motions to approve may be allowed by the Chairperson provided
substantially different conditions or safeguards are included in the motion.
If
a motion to deny an issue carries, the matter may not be reconsidered.
Conduct of Meetings. All meetings shall be open to the
public. The order of business at regular
meetings shall be as follows: (a) call to order; (b) roll call; (c) approval of
minutes of previous meeting; (d) hearing of cases; (e) old business; (f) new
business, (g) adjournment. The Secretary
shall record all proceedings for public record and maintain control over all
recordings and minutes.
Miscellaneous. No member shall take part in the hearing,
consideration or decision of any case in which that member is personally or
financially interested or concerning which the member has a bias that is not
subject to change regardless of the evidence.
No member shall vote on any matter unless he/she shall have attended the
public hearing on that issue.
Type of Cases. The Board shall hear and decide appeals and
applications for variances. The Board
may also interpret zoning maps, district boundary lines and similar questions
as they arise in the interpretation of the Cary LDO, and such other matters as
set forth in Section 3.3.1. of the LDO. Cases
are commenced by filing with the Planning Director a notice of appeal or application
for a variance, as the case may be, as provided in the LDO. The Planning Director shall forthwith
transmit to the Board all papers constituting the appeal or the
application. In the case of an appeal,
this shall include all papers constituting the record upon which the action appealed
form was taken.
Appeals. An appeal stays all enforcement
proceedings in furtherance of the action appealed from, unless the Planning
Director certifies to the Board, after notice of appeal has been filed with
him, that because of facts stated in the certificate, a stay would, in his/her
opinion cause imminent peril to life or property or that because the violation
charged is transitory in nature a stay would seriously interfere with
enforcement of the ordinance. In that
case, proceedings shall not be stayed except by a restraining order, which may
be granted by the Board or by a court of record on application, on notice to
the officer from whom the appeal is taken and on due cause shown.
In the case of an appeal, the
Board may reverse or affirm, wholly or partly, or may modify the order,
requirement, decision, or determination appealed from, shall make any order,
requirement, decision, or determination that in its opinion ought to be made in
the case. To this end, the Board shall
have all the powers of the office from which the appeal is taken.
Procedure for Filing Appeals and
Applications. No appeal shall be
heard by the Board unless notice thereof is filed within thirty (30) days after
the interested party or parties receive notice of the order, requirement,
decision or determination by the Planning Director, who shall act as clerk for
the Board in receiving this notice. All
appeals and applications shall be made on the form furnished for that purpose,
and all required information shall be complete before an appeal or application
shall be considered as having been filed.
Time. After receipt of notice of an application or
appeal, the Secretary shall schedule the time for a hearing.
Notice. The Board shall give public notice of the
hearing as required by the Town Code of Ordinances.
Conduct of
Hearing. Any party may appear in person or by agent
or attorney at the hearing, provided, however, if a person appears through a
representative, that representative must be able to testify as to the
application or appeal. In the event a
party does not appear in person or by agent, the Board may continue the
application or appeal to the next Board meeting. If any party desires to introduce into
evidence pictures, expert reports or other documentary information, such
information should be provided to the Planning Director at least ten (10) days
before the date of the hearing. If
provided fewer than 10 days in advance, or if provided at the hearing, the
Board may continue the hearing to its next regular meeting date to consider
such evidence. The order of business of
each hearing shall be as follows: (a)
the chairperson, or such person as
he/she shall direct, shall give a preliminary statement of the case; (b) the applicant shall present the argument
(sworn or affirmed testimony) in support of his/her application followed by
others with statements in his/her favor; (c) persons opposed to granting the
application shall present the argument (sworn or affirmed testimony) against
the application; (d) both sides will be permitted to present rebuttals to
opposing testimony; (e) the chairperson may summarize the evidence 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 arriving at a decision.
Rehearings. An application for a rehearing may be made
in the same manner as provided for an original hearing. The application for rehearing shall be denied
by the Board if from the record it shall appear that there has been no substantial
change in facts, evidence, or conditions.
Time. Decisions by the Board shall be made not more
than forty-five (45) days from the time of the public hearing.
Form. All decisions of the Board shall be presented
in written form prepared by Town staff and sent to the Board. Board members shall note errors within three
days of receipt of minutes, and a final version shall be signed by the
Chairperson. The decision of the Board
shall be filed with the Secretary and sent to every aggrieved party who has
filed, with the Secretary or the Chairman at the time of the hearing of the
case, a written request for a copy.
Decisions shall also be shown in the record of the case as entered in
the minutes of the Board. A decision to
grant the relief petitioned for must be based on substantial evidence. The decision on an appeal 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 are imposed by
the Board in connection with the granting of a variance or a special use.
Public Record of Decisions. The decisions of the Board, as filed in its
minutes, shall be a public record, available for inspection at all reasonable
times.
Amendments to these Procedures
may be initiated by any regular Board member or by Town staff and shall be
deemed approved by an affirmative vote of a majority of the Board membership.
DATE
OF ADOPTION: _______________________
BOA Bylaws revised