NCGS Quick Reference List
§ 160A‑388.
Board of adjustment.
(a)
The city council may provide for the appointment and compensation of a board of
adjustment consisting of five or more members, each to be appointed for three
years. In appointing the original members of such board, or in the filling of
vacancies caused by the expiration of the terms of existing members, the
council 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
council may, in its discretion, appoint and provide compensation for 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. A
city may designate a planning board or governing board to perform any or all of
the duties of a board of adjustment in addition to its other duties.
(b)
A zoning ordinance or those provisions of a unified development ordinance
adopted pursuant to the authority granted in this Part shall provide that the
board of adjustment shall hear and decide appeals from and review any order,
requirement, decision, or determination made by an administrative official
charged with the enforcement of that ordinance. An appeal may be taken by any
person aggrieved or by an officer, department, board, or bureau of the city.
Appeals shall be taken within times prescribed by the board of adjustment by
general rule, by filing with the officer from whom the appeal is taken and with
the board of adjustment a notice of appeal, specifying the grounds thereof. The
officer from whom the appeal is taken shall forthwith transmit to the board all
the papers constituting the record upon which the action appealed from was
taken. An appeal stays all proceedings in furtherance of the action appealed
from, unless the officer from whom the appeal is taken certifies to the board
of adjustment, after notice of appeal has been filed with him, that because of
facts stated in the certificate a stay would, in his 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 of adjustment or by a court of record on
application, on notice to the officer from whom the appeal is taken and on due
cause shown. The board of adjustment shall fix a reasonable time for the
hearing of the appeal, give due notice thereof to the parties, and decide it
within a reasonable time. The board of adjustment may reverse or affirm, wholly
or partly, or may modify the order, requirement, decision, or determination
appealed from, and shall make any order, requirement, decision, or
determination that in its opinion ought to be made in the premises. To this end
the board shall have all the powers of the officer from whom the appeal is
taken.
(c)
The zoning ordinance may provide that the board of adjustment may permit
special exceptions to the zoning regulations in specified classes of cases or
situations as provided in subsection (d) of this section, not including
variances in permitted uses, and that the board may use special and conditional
use permits, all to be in accordance with the principles, conditions,
safeguards, and procedures specified in the ordinance. The ordinance may also
authorize the board to interpret zoning maps and pass upon disputed questions
of lot lines or district boundary lines and similar questions as they arise in
the administration of the ordinance. The board shall hear and decide all
matters referred to it or upon which it is required to pass under any zoning ordinance.
(d)
When practical difficulties or unnecessary hardships would result from carrying
out the strict letter of a zoning ordinance, the board of adjustment shall have
the power to vary or modify any of the regulations or provisions of the ordinance
so that the spirit of the ordinance 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.
(e)
The concurring vote of four‑fifths of the members of the board shall be
necessary to reverse any order, requirement, decision, or determination of any
administrative official charged with the enforcement of an ordinance adopted
pursuant to this Part, 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 the ordinance. For the 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 "members of the board" for calculation
of the requisite supermajority if there are no qualified alternates available
to take the place of such members.
(e1) 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 or herself, the
remaining members shall by majority vote rule on the objection.
(e2) Every
decision of the board shall be subject to review by the superior court by
proceedings in the nature of certiorari. Any petition for review by the superior
court shall be filed with the clerk of superior court within 30 days after the
decision of the board is filed in such office as the ordinance specifies, 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 chairman of the
board at the time of its hearing of the case, whichever is later. The decision
of the board may be delivered to the aggrieved party either by personal service
or by registered mail or certified mail return receipt requested.
(f)
The chairman of the board of adjustment or any member temporarily acting as
chairman, is authorized in his official capacity to administer oaths to
witnesses in any matter coming before the board.
(g)
The board of adjustment may subpoena witnesses and compel the production of
evidence. If a person fails or refuses to obey a subpoena issued pursuant to
this subsection, the board of adjustment may apply to the General Court of
Justice for an order requiring that its order be obeyed, and the court shall
have jurisdiction to issue these orders after notice to all proper parties. No
testimony of any witness before the board of adjustment pursuant to a subpoena
issued in exercise of the power conferred by this subsection may be used
against the witness in the trial of any civil or criminal action other than a
prosecution for false swearing committed on the examination. Any person who,
while under oath during a proceeding before the board of adjustment, willfully
swears falsely, is guilty of a Class 1 misdemeanor. (1923, c. 250, s. 7; C.S.,
s. 2776(x); 1929, c. 94, s. 1; 1947, c. 311; 1949, c. 979, ss. 1, 2; 1963, c.
1058, s. 3; 1965, c. 864, s. 2; 1967, c. 197, s. 1; 1971, c. 698, s. 1; 1977,
c. 912, ss. 9‑12; 1979, c. 50; 1979, 2nd Sess., c. 1247, s. 37; 1981, c.
891, s. 7; 1985, c. 397, s. 2; c. 689, s. 30; 1991, c. 512, s. 2; 1993, c. 539,
s. 1088; 1994, Ex. Sess., c. 24, s. 14(c); 2005‑418, s. 8(a).)
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