Morrisville Board of Adjustment (meets as needed) Advisory Board/Committee December 12, 2018, 6:30 Pm
1.
Call to Order
2.
Invocation - Steve Botha
3.
Adoption of Agenda
4.
Approval of Minutes 4.a.
5.
April 11, 2018 BOA Minutes BOA Draft Minutes 2018-04-11.pdf
Presentations 5.a.
Presentation of Service Awards
6.
Old Business - None
7.
New Business 7.a.
Adoption of 2019 Meeting Schedule - Courtney Tanner, Planning Director 2019 Board of Adjustment Meeting Schedule.pdf
7.b.
2019 Chair and Vice-Chair Appointment Recommendations - Courtney Tanner, Planning Director
7.c.
Board of Adjustment Handbook Chris Lawson, Planner II Brief - December 12 Action - January 9 2018-391-0 ATTH 1 - BOA Handbook Draft.pdf 2018-391-0 ATTH 2 - UDO Section 2.2.2. Board of Adjustment.pdf
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2018-391-0 ATTH 3 - UDO Section 2.5.16. Variance.pdf 2018-391-0 ATTH 4 - UDO Section 2.5.22. Administrative Appeal.pdf 2018-391-0 BOA Handbook Presentation.pdf
8.
Staff Comments
9.
Committee Comments
10. Upcoming Term Expirations - None at this time 11. Upcoming Events - Visit: https://www.townofmorrisville.org/residents/events-calendar 12. Adjournment
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Board of Adjustment (meets as needed) Agenda Item Report Agenda Item No. 2018-434-0 Submitted by: Amy Lindley Submitting Department Planning Meeting Date: December 12, 2018
SUBJECT April 11, 2018 BOA Minutes Recommendation: Approval Updates/History of Briefing: N/A Executive Summary and Background Information: N/A Potential Options: N/A Staff Recommendation: Approval ATTACHMENTS BOA Draft Minutes 2018-04-11.pdf
Board of Adjustments April 11, 2018 DRAFT MINUTES
1. Call to Order Chairman Falzon called the meeting to order at 6:30 pm. Attendance Board members present for the meeting were: Chairman Gerard Falzon Vice-Chairman Jack Walton Member Steve Botha Member Patty Cheng Member Tina Beri, Alternate Board Members absent from the meeting were: Member Mack Baker Member Eric Cusack, Alternate Staff members present for the meeting were: Planning Director Courtney Tanner Development Services Coordinator Amy Lindley Town Attorney Frank Gray 2. Invocation Invocation was given by Chairman Falzon. 3. Adoption of Agenda MOTION: Member Botha made a motion to adopt the April 11, 2018 agenda. Vice-Chairman Walton seconded the motion, which passed unanimously. 4. Approval of Minutes MOTION: Member Botha made a motion to approve the January 10, 2018 minutes. Member Cheng seconded the motion, which passed unanimously. 5. Presentations 5a. Training/Professional Development for the Board of Adjustments Mr. Gray, Town Attorney, presented a training session of procedures for conducting a Board of Adjustments Meeting. 100 Town Hall Drive | Morrisville, NC 27560 | P: 919.463.6200 | F: 919.481.2907 | to wnofmorrisville.org
6. Public Comments No Public Comment 7. Old Business No Old Business 8. New Business No New Business 9. Staff Comments Director Tanner stated staff was currently accepting public comments on the draft Comprehensive Transportation Plan Update. There are several opportunities throughout the community; information was listed on the Town of Morrisville website calendar. Handouts would be posted on the website by the end of this week. She mentioned an outreach event on the Morrisville-Carpenter Road widening scheduled for March 13th, all details are on the website calendar. Spring Green Day was scheduled for April 14th, all information was listed on the website calendar. Public outreach of the Land Use Plan update starts in April. Member Cheng asked about the portal for the Comprehensive Transportation Plan Update. Director Tanner stated the portal was still available and if Member Cheng was having difficulty using the portal to be contact her. 10. Board of Adjustment Comments Member Botha stated that she found all the training sessions to be very helpful. Vice-Chairman Walton thanked Mr. Gray for tonight’s training session. He informed the Board that NCDOT awarded the contract for the road that connect between Airport Blvd and Aviation Parkway. Member Beri thanked everyone for the training sessions. Member Cheng asked about the approving process of the meeting minutes before they could be sent to Town Council. Director Tanner stated the minutes have to be adopted at a regular or special called meeting. For meetings with a training session only it was okay to keep the minutes in draft form until the next meeting. However if there was a case where minutes needed to be approved, the next regularly schedule meeting would likely occur. Member Cheng asked if the approved meeting minutes were sent to Town Council. Mrs. Lindley stated approved minutes for all Boards and Advisory Committees were sent to Town Council. Vice-Chairman Walton requested for staff to verify the number of years Member Baker has been on the Board of Adjustments as he believed Member Bakers term is incorrect on the website. Staff stated they would work with the appropriate staff to verify the number of terms. Chairman Falzon stated he would like to continue to have this training session annually since the Board of Adjustments meet so unfrequently. 11. Upcoming Terms Expirations No terms were expiring at this time
Board of Adjustment – April 11, 2018
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12. Upcoming Events Visit Town website to learn more about upcoming Town events. 13. Adjournment MOTION: Vice-Chairman Walton made a motion to adjourn the meeting. Member Cheng seconded the motion, which passed unanimously. The meeting adjourned at 7:34 pm.
______________________ Chairman, Gerald Falzon
_______________________ Secretary to the Board, Amy Lindley
______________________ Date
_______________________ Date
Board of Adjustment – April 11, 2018
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Board of Adjustment (meets as needed) Agenda Item Report Agenda Item No. 2018-460-0 Submitted by: Amy Lindley Submitting Department Planning Meeting Date: December 12, 2018
SUBJECT Presentation of Service Awards Recommendation: Not applicable Updates/History of Briefing: Not applicable Executive Summary and Background Information: Not applicable Potential Options: Not applicable Staff Recommendation: Not applicable ATTACHMENTS
Board of Adjustment (meets as needed) Agenda Item Report Agenda Item No. 2018-435-0 Submitted by: Amy Lindley Submitting Department Planning Meeting Date: December 12, 2018
SUBJECT Adoption of 2019 Meeting Schedule - Courtney Tanner, Planning Director Recommendation: Approval Updates/History of Briefing:
Executive Summary and Background Information: In accordance with Section 2.2.2.F.1 of the Unified Development Ordinance (UDO), the Board of Adjustment (BOA) "shall establish a schedule of regular meetings—including the date, time, and location of meetings—and keep a copy of the schedule on file with the Town Clerk". Pursuant with this responsibility, a proposed 2019 meeting schedule has been developed for consideration by the Board. The schedule is consistent with the prior 2018 schedule and proposes to keep meetings on the second Wednesday of every month at 6:30 pm. except for October meeting which has been updated to be October 2nd, 2018. Staff has reviewed the schedule for conflicts with any Town holidays. No such conflicts were identified. Potential Options: The Board is requested to consider the proposed 2019 BOA meeting schedule and may choose to: 1. Approve the schedule as proposed; 2. Approve the schedule with modifications; or 3. Adopt an alternate schedule. Staff Recommendation: Staff recommends approval of the proposed 2019 meeting schedule as presented with the condition that the Board meet on as needed basis. Including this condition in the motion will eliminate the need to send out official cancellation notices through the Town Clerk's office when a meeting is not held. ATTACHMENTS 2019 Board of Adjustment Meeting Schedule.pdf
2019 Board of Adjustment Meeting Schedule 2nd Wednesday Town Council Chambers 100 Town Hall Drive Morrisville, NC 27560 6:30 PM
January 9th February 13th March 13th April 10th May 8th June 12th July 10th August 14th September 11th October 2nd* November 13th December 11th
Board of Adjustment (meets as needed) Agenda Item Report Agenda Item No. 2018-436-0 Submitted by: Amy Lindley Submitting Department Planning Meeting Date: December 12, 2018
SUBJECT 2019 Chair and Vice-Chair Appointment Recommendations - Courtney Tanner, Planning Director Recommendation: N/A Updates/History of Briefing:
Executive Summary and Background Information: In accordance with Section 2.2.2.E of the Unified Development Ordinance (UDO), the Board of Adjustment is to make a recommendation to the Town Council on the selection of a Chair and Vice-Chair on an annual basis. The Chair presides over all Board meetings and the Vice-Chair presides over meetings in the Chair’s absence. Officers may be appointed to successive terms without limitation. At the December 12, 2018 meeting, nominations will be accepted for the Chair and Vice-Chair. Ballots will be distributed and Board members will be asked to nominate a Chair. After the votes are totaled and a recommended Chairperson is identified, a second ballet will be distributed and members will be asked to vote on a Vice-Chair. The Board of Adjustment's recommendation for 2019 Chair and Vice-Chair will then be forwarded to the Town Council for consideration and action. Potential Options: N/A Staff Recommendation: N/A ATTACHMENTS
Board of Adjustment (meets as needed) Agenda Item Report Agenda Item No. 2018-391-0 Submitted by: Christopher Lawson Submitting Department Planning Meeting Date: December 12, 2018
SUBJECT Board of Adjustment Handbook Chris Lawson, Planner II Brief - December 12 Action - January 9 Recommendation: Not applicable Updates/History of Briefing: Not applicable Executive Summary and Background Information: Staff will provide an overview of the proposed Board of Adjustment Handbook (ATTH 1), distributed with the agenda for this meeting, and will take questions from the Board. The handbook was developed to assist the Board in fulfilling its duties. Among other things, it establishes official rules of procedure for the Board, provides an overview of the powers and responsibilities of the Board and contains information about the process and legal requirements for conducting quasi-judicial hearings. In addition to the handbook, several sections of the UDO are attached for further guidance, including Section 2.2.2. Board of Adjustment (ATTH 2), which establishes the authority for the Board, Section 2.5.16. Variance (ATTH 3), which lists the standards needed for a variance to be granted, and Section 2.5.22. Administrative Appeal (ATTH 4), which describes the conditions required to overturn an administrative decision. Potential Options: At the meeting, staff will provide an overview of the various sections of the handbook and solicit questions from the Board.
Staff Recommendation: Staff recommends the Board of Adjustment listen to an overview of the proposed handbook, ask questions, and provide recommended changes. ATTACHMENTS 2018-391-0 ATTH 1 - BOA Handbook Draft.pdf
2018-391-0 ATTH 2 - UDO Section 2.2.2. Board of Adjustment.pdf 2018-391-0 ATTH 3 - UDO Section 2.5.16. Variance.pdf 2018-391-0 ATTH 4 - UDO Section 2.5.22. Administrative Appeal.pdf 2018-391-0 BOA Handbook Presentation.pdf
ATTH 1
Town of Morrisville
Board of Adjustment Handbook December 12, 2018
Table of Contents I.
INTRODUCTION ................................................................................................... 1
II.
ESTABLISHMENT AND AUTHORITY ............................................................... 1 ESTABLISHMENT. ....................................................................................................... 1 POWERS AND DUTIES.................................................................................................. 1 1. Review of Development Applications. .................................................................... 1 2. Other Powers and Duties. ...................................................................................... 1
III.
MEMBERSHIP ....................................................................................................... 1 APPOINTMENTS. ......................................................................................................... 1 TERMS. ...................................................................................................................... 2 VACANCIES. ............................................................................................................... 2 RESIGNATIONS. .......................................................................................................... 2 QUORUM. ................................................................................................................... 2
IV.
OFFICERS .............................................................................................................. 2 OFFICER APPOINTMENTS. ........................................................................................... 2 DUTIES....................................................................................................................... 3 VACANCIES. ............................................................................................................... 3
V.
STAFF ...................................................................................................................... 3 PLANNING DIRECTOR DUTIES. .................................................................................... 3 GENERAL SUPPORT. .................................................................................................... 3 TOWN ATTORNEY....................................................................................................... 3
VI.
MEETINGS ............................................................................................................. 4 MEETINGS SCHEDULE. ................................................................................................ 4 MEETING NOTICE. ...................................................................................................... 4 MEETING RECORD. ..................................................................................................... 4
VII.
RULES OF PROCEDURE ..................................................................................... 5 AGENDA PREPARATION. ............................................................................................. 5 1. Board Meeting. ...................................................................................................... 5 2. Work Session. ........................................................................................................ 5 AGENDA ORDER. ........................................................................................................ 5 1. Board Meetings. .................................................................................................... 5 2. Work Sessions. ....................................................................................................... 6 CONSIDERATION OF SCHEDULED ITEMS....................................................................... 6 1. Board Meeting. ...................................................................................................... 6 2. Work Sessions. ....................................................................................................... 7
VIII.
TYPES OF APPLICATIONS ............................................................................. 7 VARIANCE. ................................................................................................................. 8 ADMINISTRATIVE APPEAL. ......................................................................................... 8
Board of Adjustment Handbook
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IX.
PUBLIC PARTICIPATION ................................................................................... 9 TYPES OF PARTICIPATION ........................................................................................... 9 1. Applicant Testimony. ............................................................................................. 9 PARTIES WITH LEGAL STANDING TESTIMONY.............................................................. 9 NON-PARTY WITNESSES TESTIMONY. ......................................................................... 9 PUBLIC COMMENT. ..................................................................................................... 9 PROCEDURE ............................................................................................................. 10 1. Register to Speak. ................................................................................................ 10 2. Swearing in of Parties and Witnesses. .................................................................. 10 3. Testimony. ........................................................................................................... 10 4. Cross Examination............................................................................................... 10 5. Rebuttal. .............................................................................................................. 10 6. Groups................................................................................................................. 11 7. Continuations. ..................................................................................................... 11
X.
MANNER OF ACTING ........................................................................................ 11 MOTIONS. ................................................................................................................ 11 1. Main Motion. ....................................................................................................... 11 2. Motion to Amend. ................................................................................................ 11 3. Substitute Motion. ................................................................................................ 12 4. Motion to Table or Continue. ............................................................................... 12 VOTING. ................................................................................................................... 12 1. Voice Vote. .......................................................................................................... 13 2. Roll Call Vote. ..................................................................................................... 13 3. Abstention. ........................................................................................................... 13
XI.
OPEN MEETINGS LAW ..................................................................................... 13 BROADCASTING OR RECORDING OF MEETINGS. ......................................................... 13 CLOSED SESSION. ..................................................................................................... 13 EMAILS. ................................................................................................................... 14
XII.
GENERAL CONDUCT......................................................................................... 14 ATTENDANCE. .......................................................................................................... 14 CONDUCT. ................................................................................................................ 14 CONFLICT OF INTEREST. ........................................................................................... 15 PUBLIC REPRESENTATION & EX PARTE COMMUNICATION. ........................................ 15
Board of Adjustment Handbook
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I. INTRODUCTION Members of the Morrisville Board of Adjustment have been entrusted to review variance and administrative appeal applications subject to quasi-judicial hearings and to make final decisions on these applications. This handbook provides an overview of the roles and responsibilities of the Board of Adjustment and has been prepared to assist members in fulfilling the important duties of their position. In compiling this handbook, information was taken from multiple sources including the State of North Carolina General Statutes, the Town’s Appointed Public Bodies Administrative Policy, and Morrisville’s Unified Development Ordinance (UDO). In the event of a conflict between this handbook and any official state or local law or policy, the subject law or policy shall prevail. In the event a law and policy conflict, the law shall prevail. II. ESTABLISHMENT AND AUTHORITY Establishment. The Morrisville Board of Adjustment exercises authority under North Carolina General Statutes and the Town of Morrisville UDO and is governed by these statutes and ordinances as adopted and amended by law. Powers and Duties. In accordance with Section 2.2.2.B of the Town of Morrisville UDO, the Board of Adjustment has been granted the following powers and duties. Review of Development Applications. The Board of Adjustment is responsible for reviewing and making final decisions on those requests identified in Table 2.3, Summary Table of Development Review Procedures, of the UDO. Other Powers and Duties. The Board of Adjustment shall have any other powers and duties delegated to it by the Town Council, consistent with state law. III.
MEMBERSHIP
Appointments. 1. The Board of Adjustment shall consist of five (5) regular members and two (2) alternates. 2. Four (4) of the regular members shall be residents of the Town’s incorporated area and shall be appointed by the Town Council. Board of Adjustment Handbook
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3. One (1) regular member shall be a resident from within the Town’s extraterritorial jurisdiction (ETJ) and shall be appointed by the Wake County Board of Commissioners. The ETJ member shall have equal rights, privileges and duties as all other members of the Board of Adjustment. If no applications are received for the ETJ position, the Wake County Board of Commissioners may allow the Town Council to appoint a resident within the Town’s incorporated area to fill the position. 4. The two (2) alternate members shall be residents of either the Town’s incorporated area or its ETJ and shall be appointed by the Town Council. The Chair of the Board of Adjustment shall assign alternate members, generally on a rotating basis, to serve as substitutes for regular members who are temporarily absent or disqualified. When substituting for a regular member, an alternate member shall have the same powers and duties as a regular member. Alternate members can vote only when standing in for a regular member but may otherwise participate in meetings in the same manner as a regular member. Terms. 1. Members and alternates shall be appointed for three (3) year terms that are staggered such that the terms of not more than three (3) regular members and two (2) alternate members expire in a given year. Board members may be appointed to successive terms without limitation. 2. Board members shall continue to serve until their successors are appointed. Vacancies. Vacancies occurring for reasons other than expiration of the term shall be filled for the period of the unexpired term only, and by the body (Town Council or Wake County Board of Commissioners) that appointed the vacating member. Resignations. Board members who wish to resign their position shall notify the Planning Director in writing, who shall then forward the notification to the Town Clerk. Quorum. Four (4) members, regular or alternate, of the Board shall constitute a quorum. The presiding Chair is counted in determining whether a quorum is present. In the absence of a quorum, the Board shall not conduct any business. IV.
OFFICERS
Officer Appointments.
Board of Adjustment Handbook
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The Board of Adjustment shall recommend one of its members to serve as its Chair and another as its Vice-Chair. The Town Council shall consider the recommendation of the Board and appoint the Chair and Vice-Chair, each to serve a one-year term. Officers may be appointed to successive terms without limitation per the UDO. The recommendation of a Chair and Vice-Chair by the Board of Adjustment for the ensuing calendar year shall take place prior to the end of each year, or during the next closest regularly scheduled meeting. In the event a selection cannot be held, staff shall convene the next meeting and proceed with conducting the selection of officers. Duties. It shall be the duty of the Chair to preside over all meetings and to sign all official papers. The Vice-Chair shall preside over Board meetings in absence of the Chair. If both the Chair and Vice-Chair are absent, the Board shall vote to determine who shall serve as acting Chair for the meeting. Vacancies. Whenever the Chair or Vice-Chair term is vacated due to resignation, dismissal, death, or otherwise, a new Chair and Vice-Chair shall be selected by the Board without undue delay. In the event both offices are vacated, staff shall convene the meeting and proceed with conducting the selection of officers. V. STAFF Planning Director Duties. The Planning Director, or their designee, shall serve as the official professional staff for the Board of Adjustment and as the Board’s secretary, providing it administrative support, notifying members of Board meetings, and keeping the minutes of meetings. General Support. Planning Department staff shall be available as a resource to advise Board members and assist them in fulfilling their duties. To ensure that the Board has the information it needs to fulfill its duties, members are encouraged to contact the Planning Department with any questions. Town Attorney. The Attorney for the Town may be consulted on legal issues through the Planning Director’s office. The Attorney will attend meetings of the Board if requested by the Planning Director or Town Manager.
Board of Adjustment Handbook
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VI.
MEETINGS
Meetings Schedule. The Board of Adjustment shall adopt an annual schedule of regular meetings prior to the end of each calendar year or as soon thereafter as a quorum is established. A copy of the schedule shall be kept on file with the Town Clerk. The Chair may cancel a regular meeting on determining that there are no agenda items for consideration, and may call a special or emergency meeting in accordance with state law. Regular meetings are currently scheduled on the second Wednesday of each month at 6:30 p.m. in the Council Chambers of Morrisville Town Hall, 100 Town Hall Drive, Morrisville, North Carolina. Meetings shall adjourn no later than 11:00 pm unless extended by a two-thirds vote. Meeting Notice. All Board of Adjustment meetings shall be open to the public in accordance with state law and shall be noticed for as follows: 1. Changes to the regular meeting schedule shall be filed with the Town Clerk at least seven (7) calendar days before the first meeting held pursuant to the revised schedule. 2. Notice of a special meeting and the business to be conducted thereat shall be given to each member of the Board at least 48 hours prior to the meeting. 3. Public hearings for Variance & Administrative Appeal requests shall be noticed to the public as set forth in Table 2.4.5.B.1 of the UDO. 4. When there is no business for the Board, the Chair may dispense with a regular meeting by giving notice to all members and the Planning Director not less than 72 hours prior to the time scheduled for the meeting. 5. The Board may continue a meeting to a specified date and time without the meeting becoming a special meeting and without further notice being required to members of the public provided that the time and place in which the next meeting is to be continued is announced in open session. The Board may, at its discretion, interrupt the hearing and continue it to another meeting. Reasons for doing so may include the lateness of the hour or to allow consideration of other items on the agenda. Meeting Record. The Board of Adjustment shall keep a record of its members' attendance, discussions, findings, and decision. Meeting minutes shall be a public record in accordance with state law. Board of Adjustment Handbook
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VII.
RULES OF PROCEDURE
The Board of Adjustment has established Rules of Procedure in accordance with the authority granted to it by the UDO. Modifications to the following Rules of Procedure may be approved by a majority vote of those Board members present at a meeting and must be consistent with state and local law. Agenda Preparation. Board Meeting. The business of a Board meeting is controlled by the agenda. The agenda is prepared as described in this section. a. The Planning Department prepares the agenda. b. Items may be placed on the agenda by the following method: i. Request of the Board of Adjustment Chair or a majority of Town Council, ii. Request of the Town Manager, Planning Director or Town Attorney, or iii. Request of a majority of the regular Board of Adjustment Board members. Board of Adjustment agendas are published five (5) days prior to the meeting on the Town’s website. Copies of the agenda are provided in sufficient quantity at each regular meeting for the public to obtain copies. In the event that any confidential material is distributed with the agenda, such as a memorandum from the Town Attorney advising the Board on a legal issue, such information shall be marked as confidential. Board members shall not discuss any confidential material at any open meeting or with any members of the public. Work Session. The agenda preparation adheres to the same procedures as the Board meeting above. Agenda Order. 1. Board Meetings. The agenda shall be set in the following order. The Board of Adjustment Chair may, at their discretion, alter the order of the agenda at the meeting. Board of Adjustment Handbook
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a. Call to Order. b. Invocation. c. Adoption of Agenda. d. Approval of Minutes. e. Presentations. f. Old Business with Public Hearing. g. Old Business. h. New Business with Public Hearing. i. New Business. j. Staff Comments. k. Board of Adjustment Comments. l. Upcoming Term Expirations. m. Upcoming Events. n. Adjournment. 2. Work Sessions. The agenda shall be set in the following order. The Board of Adjustment Chair may, at their discretion, alter the order of the agenda at the meeting. No public comment sessions shall occur at a work session. a. Call to Order. b. Adoption of Agenda. c. Work Session. d. Adjournment. Consideration of Scheduled Items. Board Meeting. In order to ensure full consideration of matters requiring action before the Board, presentations related to each item shall customarily be taken in the
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order set forth below. Items may be taken out of order at the discretion of the Chair. a. Public Hearing Opened. b. Staff, Applicant, and Applicant Witnesses Sworn In. c. Town Staff Presentation. d. Applicant Presentation. e. Examination of Applicant and their Witnesses. f. Public Comment and Presentation from Those with Standing (Each member of the Public to be Sworn in Before Speaking). g. Examination of Public Speakers. h. Other Parties Rebuttal. i. Cross Examination of Witnesses. j. Public Hearing Closed. k. Board of Adjustment Deliberation. l. Motion and Decision by the Board of Adjustment. Work Sessions. The purpose of work sessions is to allow the Board to take a deep dive into a single matter under consideration, and does not include opportunities for public comment. Work session matters shall customarily be discussed in the order set forth below. The discussion may be taken out of order at the discretion of the Chair. a. Town staff and/or consultant presentation. b. Discussion by the Planning and Zoning Board. VIII. TYPES OF APPLICATIONS All applications considered by the Board of Adjustment shall be conducted as quasi-judicial hearings. Quasi-judicial hearings adjudicate how the UDO applies to particular situations based on an evidentiary record. The burden of proof shall be on the applicant. Quasi-judicial decisions shall be based upon competent, material, and substantial evidence in the record. Board members shall not have ex-parte communication, meaning that they shall not discuss the case outside of the hearing with staff, the applicant, residents, among themselves, or with any other Board of Adjustment Handbook
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person or group. If contact between Board members and parties occurs outside of the hearing it must be disclosed prior to the start of the hearing. Variance. A Variance is a mechanism that allows property owners to seek relief from the strict application of the UDO if it is determined that strict application causes an undue and unique hardship. If granted, a variance allows for a property owner to develop their property in a manner that would otherwise not be allowed by the UDO. In reviewing a Variance, the Board receives evidence, decides the facts, and applies the facts to the standards in the UDO. Variance applications require a concurring vote of a four-fifths majority, or four (4) members, for approval. Per the UDO, a Variance application shall be approved only if the Board reaches each of the conclusions listed in Sections 2.5.16, based on findings of fact supported by competent, substantial, and material evidence presented at the hearing. The decision of the Board shall be one of the following: 1. Approve the application as submitted; 2. Approve the application subject to conditions needed to comply with the standards in Section 2.5.16; or 3. Deny the application. Administrative Appeal. An Administrative Appeal is an appeal by a party that believes they have been aggrieved by a decision, interpretation, or order made by the Planning Director, Town Engineer, or other Town administrative officer in administering or enforcing the provisions of the UDO. The Board shall review the appeal application and shall base its decision solely on the record established for the decision, interpretation, or order being appealed. The record consists of all documents, hearing records, and other materials related to the decision, interpretation, or order. The Board may modify or reverse a decision, interpretation, or order only if it finds that there is competent substantial evidence in the record of a clear and demonstrable error in the officer’s application of the standards of the UDO. Administrative Appeals require a simple majority, or the affirmative vote of three (3) members, for approval. The decision of the Board shall be one of the following: 1. Affirmation of the decision, interpretation, or order being appealed (in whole or in part); 2. Modification of the decision, interpretation, or order being appealed (in whole or in part); or Board of Adjustment Handbook
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3. Reversal of the decision, interpretation, or order being appealed (in whole or part). IX.
PUBLIC PARTICIPATION
The Board of Adjustment believes in a fair hearing process for applicants and other parties with legal standing. Testimony by Parties and Non-party Witnesses is vital to the function of quasi-judicial hearings, and the Board encourages their input for fair representation, which enables a better decision-making process. All persons who will testify at the hearing shall be sworn in. The following forms of public participation are permitted at Board meetings: Types of Participation Applicant Testimony. A specific time during Board meetings during which the applicant can demonstrate how they believe their application complies with the standards of the UDO. Compliance must be demonstrated by competent, material, and substantial evidence. Expert witnesses may be produced by the applicant at this time. Parties with Legal Standing Testimony. A specific time during Board Meetings in which parties with legal standing, meaning those who could be specifically impacted by the Board’s decision due to proximity, property value impact, or other adverse effects, can demonstrate how they believe an application does, or does not, comply with the standards of the UDO. Compliance or non-compliance must be demonstrated by competent, material, and substantial evidence. Expert witnesses may be produced at this time. Parties with legal standing typically have a clearly defined interest in the outcome of the case and can include adjacent property owners, Homeowners Associations, or neighborhood groups. Non-Party Witnesses Testimony. A specific time shall be allotted during Board Meetings in which expert witnesses, who may or may not have legal standing, may testify to demonstrate how they believe that the application does or does not comply with the standards of the UDO. Non-party witnesses cannot produce expert witnesses. Public Comment. A specific time during Board Meetings, outside of a quasi-judicial hearing, in which the public can address the Board. The time limit for public comment is three (3) minutes. Board of Adjustment Handbook
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Procedure Register to Speak. Sign-in sheets will be available no later than 6:00 pm the day of the meeting. Those who sign-up at the meeting are granted the same allowances as those who have previously signed-up on the Public Comment Portal. If someone desires to speak, but has not signed-up, the Chair may, at their discretion, allow the person to speak. Swearing in of Parties and Witnesses. All persons who testify at the hearing shall be sworn in. At the appropriate time, the Chair will call all those who plan to testify to be sworn in and testify. Testimony. At the appropriate time, the Chair will acknowledge those persons who have signed in and will call upon the applicant first. Other parties will be called in the order they have signed in and non-party witnesses will be called last. Speakers will address the Board as a whole, from the podium at the front of the room and begin their remarks by stating their name and address. Speakers should demonstrate how they believe the application does or does not comply with the applicable standards of the UDO. Compliance, or noncompliance, must be demonstrated by competent, material, and substantial evidence. Speakers may produce expert witnesses, as appropriate. Cross Examination. On being properly recognized by the Chair, the applicant, Town staff, or other parties may be granted an opportunity to ask questions of any other person who has testified at the hearing. Any such inquiry shall be limited to matters raised directly by the testimony or evidence being questioned. Generally speaking, the time spent cross examining a party should not exceed the length of that party’s testimony. Rebuttal. On being properly recognized by the Chair, the applicant, Town staff, or other parties may be granted an opportunity to rebut any testimony, comments, documents, or materials presented by any other person. Any such rebuttal shall be limited to matters raised directly by the testimony or evidence being rebutted. Non-party witnesses cannot speak again at the same meeting, unless specifically called upon by the Chair, the applicant, Town Staff, or other parties to rebut any testimony, comments, documents, Board of Adjustment Handbook
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or materials they presented. Generally speaking, the time spent rebutting any testimony should not exceed the length of that party’s testimony. Groups. Groups are encouraged to designate a lead speaker on their behalf, and when addressing the Board, the speaker must first identify the group. Speakers cannot both represent themselves individually and speak on behalf of a group, even if held over multiple sessions. Continuations. When the hearing is continued from a previous meeting, previous individuals, representing either themselves or a group, cannot provide further testimony, unless other parties rebut any part of their testimony. X. MANNER OF ACTING The act of a majority of the Board present at a meeting at which a quorum is present shall be the act of the Board of Adjustment unless the act of a greater number is required by law or by these By-Laws. Motions. The Board shall follow Robert’s Rules of Order in considering and acting on any business and shall act through the use of a motion. Motions may be made by any regular Board member, or alternate serving in the seat of a regular Board member, with the exception of the Chair. All motions require a second and are before the Board when stated by the Chair. Once a motion has been duly made, it is up for discussion and debate by the Board. Except by ruling of the Chair, discussion of an item shall be limited to members of the Board after a motion on the item has been made and seconded. A summary of four (4) of the most common types of motions is below. 1. Main Motion. A main motion is the original motion made on an item. After a motion has been made and seconded, the Chair shall recognize Board members desiring to discuss the matter under consideration and shall determine in which order Board members shall speak about the request. All members will be given an opportunity to discuss an item prior to a vote. 2. Motion to Amend. Once a motion has been seconded and is on the floor for consideration, any member may move to amend the motion. Motions to amend are typically made if a member wishes to add to, delete from or substitute language in the main motion. When a motion to amend has been duly made, seconded Board of Adjustment Handbook
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and stated by the Chair, it must then be voted upon. If the vote on the amendment passes, then a vote is taken on the amended motion. If the vote on the amendment fails, the un-amended main motion remains before the Board for action. 3. Substitute Motion. A substitute motion is a subsidiary motion, and may be made only when a main motion is pending. If approved, a substitute motion, disposes of and replaces the main motion. 4. Motion to Table or Continue. A motion to table or continue consideration of an item to a later meeting may be made by the Board. Generally, such motions are made if the Board needs additional time to hear testimony, an applicant has requested time to amend an application in response to feedback from the public or Board, or if additional time is needed to compile information requested by the Board that is relevant to the request. Motions to table or continue may be made on any item. When an item is subject to a public hearing, it must be continued rather than tabled. A motion to continue a public hearing must include the date, time and location of the meeting that the item will be considered at next or the public notice will lapse and a new notice must be published before the item can be taken back up by the Board. In making a motion to continue, the Board should be mindful that applicants have a right to due process and to have their request considered in a reasonable timeframe. If a motion to table or continue fails, then the item remains before the Board for further action. If adopted, the matter is tabled or continued under the terms of the motion and a motion to open and continue consideration of the item is required at the next meeting before the Board may consider the matter again. Voting. Provided a quorum has been established, the vote of a majority of those members present shall be sufficient to decide matters before the Board, such as the approval of meeting minutes, except when making final decisions on Variance applications. Variance applications require the concurring vote of four-fifths majority of the Board for approval. Members absent from a Variance hearing count towards the total number of Board members in calculating the four-fifths majority, however Board members with conflicts of interest will not be counted towards the total number. A simple majority vote shall decide Administrative Appeal cases. The vote of each member for all Variance and Administrative Appeal requests acted on by the Board shall be recorded in the
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minutes. A written final decision of the Board shall be signed by the chair and transmitted to the applicant by staff. 1. Voice Vote. Motions are typically made by a simultaneous voice vote of those in favor followed by a simultaneous voice vote of those opposed. In order to maintain an accurate voting record, members shall raise their hands when voting. 2. Roll Call Vote. A roll call vote shall be used when deciding quasi-judicial items and may be used when deciding other matters at the Chairman’s discretion. During a roll call vote, each member shall state their vote out loud upon being called on by the Secretary. 3. Abstention. Board members have a duty to consider items, however Board members shall abstain from voting on an item if the outcome of the matter is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member or if a Board member has a close familial, business, or other associational relationship with an affected person. When an abstention is made in the case of an administrative appeal, a majority of members present, including the member abstaining, is still needed to decide an item. Members abstaining from voting on a variance do not count towards the total number of Board members. As a policy, Board members that need to abstain from consideration of an item due to a conflict of interest shall inform the Chair at least 48 hours in advance of the meeting so that an alternate member may sit in on and consider the item in their place. XI.
OPEN MEETINGS LAW
All meetings of the Board of Adjustment are open to the public and any member of the public may attend. Broadcasting or Recording of Meetings. Any radio or television station is entitled to broadcast all or any part of a meeting required to be open. Any person may photograph, film, tape-record, or otherwise reproduce any part of the meeting required to be open. Closed Session.
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The Board of Adjustment may go into closed session to discuss those items set forth in Section 143.318.11 of the State of North Carolina General Statutes (hereinafter “Open Meetings Law”). An example includes to consult with an attorney employed or retained by the Town on legal matters. The Board may only hold a closed session upon a motion duly made and adopted at an open meeting. Every motion to close a meeting shall cite one or more of the permissible purposes listed in the Open Meetings Law. Emails. The Board shall not conduct business outside of regularly scheduled or properly called special meetings and shall not have ex-parte communication. Email correspondence outside of a public meeting (i.e. questions/ comments/suggestions) should be directed to the Planning Director only and should not include other Board members. The Planning Director will respond to the entire Board if appropriate. To avoid any conflict with the open meetings law, individual members should not “reply all” to staff emails that include the entire Board but should respond directly to staff. XII. GENERAL CONDUCT Attendance. Each regular member or alternate of the Board of Adjustment is responsible for faithfully attending all regular meetings. Any regular member or alternate who expects to be absent at a meeting shall notify the Planning Director, Chair, and Secretary to the Board at least 24 hours prior to the meeting. Members will be allowed the number of absences totaling one-third of the total number of meetings within a calendar year, unless the Board had only two or fewer meetings, in which case absences will not be considered for dismissal. For Board members appointed to represent the Town’s Extraterritorial Jurisdiction, the Wake County Board of Commissioners will be notified that the Board member has not maintained the standard for attendance and that the Town requires the member be replaced. The Town will forward a recommendation for a replacement along with this notification. The Secretary to the Board will retain an ongoing attendance record. Conduct. When participating in a meeting or conducting Town business (whether in person, via email or other communication methods), members shall conduct themselves in an ethical and professional manner. Any member who engages in inflammatory, hostile or threatening language or behavior toward others, Board of Adjustment Handbook
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including but not limited to elected officials, staff or another Board member, will be removed from the meeting. Any member who engages in the aforementioned behavior is also subject to dismissal from the Board. Conflict of Interest. A Board of Adjustment member shall not participate in the review of, or vote on, an application if the outcome of the matter is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member or if a Board member has a close familial, business, or other associational relationship with an affected person. The member shall not sit with the Board during hearing, discussion, or vote on that item. However, such member may, as a private citizen, petition the Board regarding such an item, and present comments with other members of the public. Public Representation & Ex Parte Communication. Only the Chairperson speaks officially for the Board. Board of Adjustment members should avoid ex parte communication on matters subject to an appeal or Variance application. State law prohibits communication between Board members and parties outside of the public hearing. If a Board member does communicate with a party outside of an official public hearing it shall be disclosed to both the Board, parties, and Town staff prior to the hearing. No member of the Town staff has any authority either direct or implied to speak for the Board or to bind it in any way.
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UDO Section 2.2.2. Board of Adjustment
2.2.2.
ATTH 2
Board of Adjustment
A. Establishment The Board of Adjustment is hereby established in accordance with state law.
B. Powers and Duties Review of Development Applications The Board of Adjustment shall have the review, recommendation, and decision-making authority and responsibilities shown in Table 2.3, Summary Table of Development Review Procedures.
Other Powers and Duties The Board of Adjustment shall have any other powers and duties delegated to it by the Town Council, consistent with state law.
C. Membership, Appointment, and Terms of Office Membership and Appointment a. The Board of Adjustment shall consist of five regular voting members and two alternate members. b. Four of the regular members shall be residents of the Town’s incorporated area and shall be appointed by the Town Council. c. One regular member shall be a resident of the Town’s extraterritorial jurisdiction (ETJ) and shall be appointed by the Wake County Board of Commissioners. d. The two alternate members shall be residents of either the Town’s incorporated area or its extraterritorial jurisdiction, and shall be appointed by the Town Council. (Ord. No. 2016-001, 05/10/2016)
Alternate Members The Chair of the Board of Adjustment shall assign an alternate member to serve as a substitute for a regular member who is temporarily absent or disqualified. When substituting for a regular member, an alternate member shall have the same powers and duties as the replaced regular member.
Terms a. Members of the Board of Adjustment shall be appointed for three-year terms that are staggered such that the terms of not more than three regular members and two alternate members expire in a given year. Board members may be appointed to successive terms without limitation. b. Vacancies occurring for reasons other than expiration of the term shall be filled for the period of the unexpired term only, and by the body (Town Council or Wake County Board of Commissioners) that appointed the vacating member.
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Article 2: Administration Section 2.2. Review Authorities 2.2.2. Board of Adjustment
c. Board members shall continue to serve until their successors are appointed.
Attendance Board of Adjustment members are responsible for attending all regular board meetings as set forth by the Town Council, and may be replaced in accordance with the current public body attendance policy.
D. Staff The Planning Director shall serve as the professional staff for the Board of Adjustment and as the board’s Secretary, providing it administrative support, notifying members of board meetings, and keeping the minutes of meetings.
E. Officers The Board of Adjustment shall recommend one of its members to serve as its Chair and another as its Vice-Chair. The Town Council shall consider those recommendations and appoint the board’s Chair and Vice-Chair, each to serve a one-year term. Members may be appointed to successive terms without limitation. The Chair shall preside over all board meetings. The Vice-Chair shall preside over board meetings in the absence of the Chair. If both the Chair and Vice-Chair are absent, the board shall vote to determine who shall serve as acting Chair for the meeting.
F. Meetings Meeting Schedule The Board of Adjustment shall establish a schedule of regular meetings—including the date, time, and location of meetings—and keep a copy of the schedule on file with the Town Clerk. In accordance with state law, the Chair may cancel a regular meeting on determining that there are no agenda items for consideration, or call a special or emergency meeting.
Meeting Notice Notice of all Board of Adjustment meetings shall be provided in accordance with state law and the public meeting requirements in Section 2.4.5.B, Public Notice.
Open Meetings All Board of Adjustment meetings shall be open to the public in accordance with state law.
Meeting Procedure In conducting its meetings, the Board of Adjustment shall follow rules of procedure adopted in accordance with Section 2.2.2.I, Rules of Procedure, consistent with the procedural requirements of this Ordinance and state law.
Meeting Record The Board of Adjustment shall keep full and accurate minutes of its meetings in accordance with state law, including its findings and decisions and the votes thereon. Meeting minutes shall be a public record in accordance with state law.
G. Quorum and Vote Quorum Four members of the Board of Adjustment shall constitute a quorum. No official business of the board shall be conducted without a quorum present.
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Morrisville, NC Unified Development Ordinance
Article 2: Administration Section 2.2. Review Authorities 2.2.3. Planning and Zoning Board
Voting The concurring vote of four members of the Board of Adjustment shall be necessary to approve a Variance. The affirmative vote of three members shall be required for all other decisions, other than to adjourn a meeting for lack of a quorum.
H. Conflict of Interest A Board of Adjustment member shall not participate in the review of, or vote on, an application for a Variance or Administrative Appeal if the action proposed by the application creates a conflict of interest. Such a conflict of interest exists if the member: a. Has a fixed opinion prior to a hearing on the application that is not susceptible to change; b. Fails to disclose ex parte communications; c. Has a financial interest in the outcome of the review; d. Has a close familial, business, or other associational relationship with an affected person; or e. Otherwise has a relationship or acts in a manner that would violate affected persons’ constitutional rights to an impartial decision maker. If an objection is raised to a board member’s participation in a matter based on a conflict of interest, and the member does not recuse himself or herself, the remaining members of the board present shall by majority vote determine whether the member is or is not disqualified from participating in the review.
I. Rules of Procedure The Board of Adjustment shall adopt rules of procedure governing its procedures and operations. Copies shall be made available for public inspection in the Planning Department.
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UDO Section 2.5.16. Variance
ATTH 3
2.5.16. Variance A. Purpose The purpose of a Variance is to allow certain deviations from standards of this Ordinance when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner’s control (such as exceptional topographical conditions or the narrowness, shallowness, or shape of a specific parcel of land), the literal application of the standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest. Variances are to be sparingly exercised and only in rare instances and under exceptional circumstances to relieve undue and unique hardships to the landowner. No change in permitted uses or increases in maximum allowable development intensity may be authorized by variance.
B. Applicability The procedure and standards in this subsection apply to the review of applications for a Variance seeking hardship relief from the standards of this Ordinance other than the standards in Article 6: Riparian Buffers, and Article 7: Stormwater Variance Management, provided that no Variance may be sought or granted that would permit a use not allowed by use standards applicable in a zoning Step is Applicable district or increase development intensity (e.g., dwelling units per acre or floor area ratio) beyond that allowed by intensity standards applicable in Step is Not Applicable a zoning district. (Procedures and standards for variances from riparian buffer standards are in Section 6.6, Variances from Riparian Buffer Regulations; those for variances from stormwater management regulations are in 7.2.5, Stormwater Variances.) Pre-Application
C. Variance Procedure Figure 2.5.16.C and the following subsections identify those steps in the standard review procedure (see Section 2.4) applicable to the review of a Variance application and note any specific variations of, or additions to, those review steps.
Pre-Application Conference The applicant shall hold a pre-application conference with Town staff in accordance with Section 2.4.2.
Conference Application Submittal and Acceptance Staff Review and Recommendation with DRC review
Scheduling and Notice of Meetings
Application Submittal and Acceptance The application shall be submitted and accepted, and may be withdrawn, in accordance with Section 2.4.3.
Planning and Zoning Board Review and Recommendation
Staff Review and Report The Planning Director shall review the application, allow revisions of the application, and prepare a staff report in accordance with Section 2.4.4, except that the staff report shall summarize the variance request based on submitted evidence—but need not include a recommendation for action.
Board of Adjustment Review, Quasi-Judicial Public Hearing, and Decision Figure 2.5.16.C
Scheduling and Public Notice of Meetings The application shall be scheduled, and required public notices provided, for a Board of Adjustment meeting in accordance with Section 2.4.5.
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Article 2: Administration Section 2.5. Application-Specific Review Procedures 2.5.16. Variance
Board of Adjustment Review and Decision The Board of Adjustment shall review the application, hold a quasi-judicial public hearing, and decide the application in accordance with Section 2.4.7, subject to the following provisions. a. The decision shall be one of the following: (1) Approve the application as submitted; (2) Approve the application subject to conditions; (3) Deny the application. b. Approval of the application shall require the affirmative vote of at least 4/5 of all the members of the board. (In such cases, vacant positions and members who are excused from voting shall not be considered members of the board.)
Post-Decision Actions The post-decision actions and limitations in Section 2.4.8 shall apply to the application except as follows: a. Issuance and Recordation of Variance If the Variance application is approved, the Planning Director shall issue the applicant documentation of the approval that identifies the property to which it applies, the development plans on which it is based, and any conditions of approval. On expiration of the deadline for filing an appeal of the decision (see Section 2.4.8.B, Appeal), the applicant shall record such documentation with the Register of Deeds of the county in which the subject property is located. b. Effect of Approval (1) Approval and recordation of a Variance authorizes only the particular regulatory relief approved as part of the Variance, as applied only to the land for which the Variance is approved, and only in accordance with any approved plans and documents, and conditions of approval. It does not exempt the applicant from the responsibility to obtain all other development permits and approvals required by this Ordinance and any other applicable laws, and does not indicate that the development for which the Variance is granted should receive approval of other applications for a development permit required under this Ordinance unless the relevant and applicable portions of this Ordinance or any other applicable laws are met. (2) Unless it expires in accordance with subsection c below, an approved and recorded Variance—including any approved plans and documents, and conditions of approval— shall run with the land, shall be binding on the landowners and their successors and assigns, and shall not be affected by a change in ownership. All decisions, determinations, and interpretation by Town staff shall be consistent with an approved and recorded Variance. c. Expiration of Approval A Variance shall expire and become invalid if the property owner changes development on the site such that the extraordinary and exceptional conditions that warranted the hardship and Variance no longer do so.
D. Variance Review Standards General Variance Review Standards A Variance application shall be approved only if the Board of Adjustment reaches each of the following conclusions, based on findings of fact supported by competent, substantial, and material evidence presented at the hearing:
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Morrisville, NC Unified Development Ordinance
Article 2: Administration Section 2.5. Application-Specific Review Procedures 2.5.16. Variance
a. There are extraordinary and exceptional conditions (such as topographic conditions, narrowness, shallowness, or the shape of the parcel of land) pertaining to the particular land or structure for which the Variance is sought, that do not generally apply to other lands or structures in the vicinity; b. The extraordinary and exceptional conditions referred to above are not the result of the actions of the landowner; c. Because of the extraordinary and exceptional conditions referred to above, the application of this Ordinance to the land or structure for which the Variance is sought would effectively prohibit or unreasonably restrict the utilization of the land or structure and result in unnecessary and undue hardship; d. The Variance would not confer any special privilege on the landowner that is denied to other lands or structures that are similarly situated; e. The extent of the Variance is the minimum necessary to allow a reasonable use of the land or structure; f.
The Variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit;
g. The Variance would not adversely affect the health or safety of persons residing or working in the neighborhood, be injurious to property or improvements in the neighborhood, or otherwise be detrimental to the public welfare; and h. The Variance is consistent with the Comprehensive Plan.
Additional Review Standards for Variances from Flood Damage Prevention Standards a. If the Variance application involves standards in Section 5.6, Floodplain Management, the Board of Adjustment shall reach each of the following additional conclusions, based on findings of fact supported by competent, substantial, and material evidence presented at the hearing: (1) The Variance would not result in increased flood heights; (2) The Variance would not result in additional threats to public safety; (3) The Variance would not result in extraordinary public expense; (4) The Variance would not create nuisances; (5) The Variance would not cause fraud on or victimization of the public; and (6) The Variance would not conflict with existing local laws or ordinances. b. The Board of Adjustment’s review of a Variance application involving flood damage prevention standards shall consider all technical evaluations and relevant factors, including: (1) The danger that materials may be swept onto other lands to the injury of others; (2) The danger to life and property due to flooding or erosion damage; (3) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; (4) The importance of the services provided by the proposed facility to the community; (5) The necessity of the facility to a waterfront location, in the case of a functionally dependent facility; (6) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; (7) The compatibility of the proposed use with existing and anticipated development;
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Article 2: Administration Section 2.5. Application-Specific Review Procedures 2.5.17. Riparian Buffer Variance
(8) The relationship of the proposed use to the Comprehensive Plan and floodplain management program for that area; (9) The safety of access to the property in times of flood for ordinary and emergency vehicles; (10) The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and (11) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.
Insufficient Grounds for Approving Variances The following factors shall not constitute sufficient grounds for approval of any Variance: a. A request for a particular use that is expressly, or by inference, prohibited in the zoning district; b. Hardships resulting from factors other than application of requirements of this Ordinance; c. The fact that land or a structure may be utilized more profitably or be more marketable with a Variance; or d. The citing of other nonconforming or conforming uses of land or structures in the same or other zoning districts.
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Morrisville, NC Unified Development Ordinance
UDO Section 2.5.22 Administrative Appeal
ATTH 4
2.5.22. Administrative Appeal A. Right to Appeal Any party aggrieved by a decision, interpretation, or order made by the Planning Director, Town Engineer, or other Town administrative official in administering or enforcing the provisions of this Ordinance may appeal the decision, interpretation, or order to the Board of Adjustment by submitting an Administrative Appeal application to the Planning Director within 30 days after the decision, interpretation, or order being appealed.
Administrative Appeal Step is Applicable Step is Not Applicable
B. Administrative Appeal Procedure Figure 2.5.22.B shows those steps in the standard review procedure (see Section 2.4) that apply to the review of applications for Administrative Appeal. Specific variations of, or additions to, the standard review procedures are identified below.
Application Submittal and Acceptance The application shall be submitted and accepted, and may be withdrawn, in accordance with Section 2.4.3, subject to the following: a. The application shall: (1) Identify the decision, interpretation, order being appealed; (2) State facts demonstrating that the applicant is a party aggrieved by the decision, interpretation, or order being appealed; (3) Describe the alleged error in the decision, interpretation, or order being appealed and the grounds on which the applicant contends that an error was made; (4) Set forth facts and materials in support of the appeal; and (5) Set forth the relief the applicant seeks.
Pre-Application Conference Application Submittal and Acceptance Staff Compilation and Transmittal of Relevant Document and Materials Scheduling and Notice of Meetings Planning and Zoning Board Review and Recommendation
Board of Adjustment Review and Decision with quasi-judicial public hearing
b. Except for appeals of the amount of an imposed civil penalty, Figure 2.5.22.B submittal and acceptance of an Administrative Appeal application stays all Town actions in furtherance of the decision, interpretation, or order being appealed unless the official from whom the appeal is taken certifies to the Board of Adjustment that, because of facts stated in the certification, a stay would 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 this Ordinance. In that case, proceedings may not be stayed except by a restraining order granted by the Board of Adjustment or by a court of record on petition, after notice to the official from whom the appeal is taken, and for due cause shown.
Staff Transmittal of Materials to Board of Adjustment The Planning Director shall:
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Article 2: Administration Section 2.5. Application-Specific Review Procedures 2.5.22. Administrative Appeal
a. Refer the application to the administrative official whose decision, interpretation, or order is being appealed; b. Collect and compile all documents and other materials relevant to the decision, interpretation, or order being appealed; and c. Transmit the application and relevant documents and other materials to the Board of Adjustment in accordance with Section 2.4.4.C.2.
Scheduling and Public Notice of Meetings The application shall be scheduled, and required public notices provided, for a Board of Adjustment meeting in accordance with Section 2.4.5.
Board of Adjustment Review and Decision The Board of Adjustment shall review the application, hold a quasi-judicial public hearing, and decide the application in accordance with Section 2.4.7, subject to the following provisions: a. The decision shall be one of the following: (1) Affirmation of the decision, interpretation, or order being appealed (in whole or in part); (2) Modification of the decision, interpretation, or order being appealed (in whole or in part); or (3) Reversal of the decision, interpretation, or order being appealed (in whole or in part). b. In deciding the application, the Board of Adjustment shall make any order, requirement, decision, or determination that in its opinion ought to be made in the circumstances, and shall have all the powers of the officer from whom the appeal is taken.
Post-Decision Actions The post-decision actions and limitations in Section 2.4.8 shall apply to the application except as follows: a. Effect of Approval To the extent a decision on an Administrative Appeal application pertains to application of a particular provision of this Ordinance in a particular circumstance, the appeal decision shall be binding on subsequent decisions by the Planning Director, Town Engineer, or other administrative official in applying the same provision of this Ordinance in the same circumstance. b. Expiration of Approval The decision on an Administrative Appeal application does not expire, but shall remain valid except to the extent this Ordinance is subsequently amended to reflect any reversal or modification of the decision, interpretation, or order that was appealed.
C. Administrative Appeal Review Standards The Board of Adjustment shall review the Administrative Appeal application in accordance with the standards of this Ordinance applicable to the decision, interpretation, or order being appealed, and shall base its decision solely on the record established below for the decision, interpretation, or order being appealed. The record shall consist of the all documents, hearing records, and other materials related to the decision, interpretation, or order. The Board of Adjustment may modify or reverse a decision, interpretation, or order (in whole or in part) only if it finds that there is competent substantial evidence in the record of a clear and demonstrable error in the administrative officer’s application of the relevant standards or provisions of this Ordinance.
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Board of Adjustment Handbook December 12, 2018 Meeting
Purpose • Establishes official rules of procedure. • Provides overview of Board’s powers and responsibilities. • Provides overview of the types of applications the Board considers. • Defines what the Board is legally allowed to consider. • Defines process for: – Public Participation – Voting – Manner of Acting
I. Introduction & II. Authority • Board exercises authority granted by the General Statues to the Town. • Board is entrusted to conduct quasi-judicial hearings to make final decisions on applications for: – Variances. – Administrative Appeals.
III. Membership • Five members and two alternates. • Terms of 3 years with no term limit. • Resignations: – Notify the Planning Director in writing.
• Quorum: – 4 members required, regular or alternate.
IV. Officers • Board recommends a Chair and Vice-Chair to Town Council at the end of each year. • Officers serve one-year terms with no term limit. • If both officers are absent, the Board shall vote on an acting Chair for that meeting. • If an officer position is vacated a new officer shall be selected by the Board.
V. Staff • Planning Director serves as the official staff and secretary. • Planning Staff are available as a resource to Board members. • Town Attorney: – May be consulted on legal issues through the Planning Director. – Will attend meeting if requested by the Planning Director or Town Manager.
VI. Meetings • Board shall adopt an annual schedule prior to the end of the calendar year: – Meetings are on the second Wednesday of each month at 6:30 pm in Council Chambers.
• Shall be open to the public and adjourn no later than 11:00 pm. • May continue meeting to a specified date and time without meeting becoming a special meeting. • Meeting may be canceled giving 72 hours notice. • Board meets only as needed.
VII. Rules of Procedure • Agenda Preparation: – Board meeting controlled by the agenda. – Items to be placed on the agenda at the: • Request of the Chair, or a majority of Town Council, • Request of the Town Manager, Planning Director or Town Attorney, or • Request of a majority of the regular BOA members.
• Chair may alter the order the agenda.
VIII. Types of Applications • All applications considered by the Board shall be conducted as quasi-judicial (QJ) hearings: – Adjudicate how the UDO applies to particular situations based on an evidentiary record. – Applicant has to testify, and prove why they deserve a positive vote according to the standards of the UDO. – Decision by the Board shall be based upon competent, material, and substantial evidence in the record. – No ex parte communication. All contact must be disclosed.
VIII. Types of Applications (cont.) • Two types of applications heard by the Board per the UDO: – Variances: • Allows property owners to seek relief from the UDO if it is determined that strict application of the UDO causes an undue and unique hardship.
– Administrative Appeals: • Appeal by any party aggrieved by a decision, interpretation, or order made by a Town administrative officer in enforcing the UDO.
VIII. Types of Applications (cont.) • Variance: – Shall only be approved if the Board reaches each of the conclusions listed in Sections 2.5.16. of the UDO. – Requires a vote of four-fifths majority, or four Board Members, for approval: • Absent Board members still count towards the total number of Board members in determining four-fifths majority.
– Board shall decide to: • Approve the application. • Approve the application subject to conditions. • Deny the Application.
VIII. Types of Applications (cont.) • Administrative Appeal: – Board reviews the decision of a Town administrative officer and, if there is substantial evidence in the record of an error then the Board can modify or reverse the officer’s decision. – Requires a simple majority for approval. – Board shall decide to: • Approve the application. • Approve the application subject to conditions. • Deny the Application.
IX. Public Participation • 3 types of public participation are allowed during quasi-judicial hearings: – Applicant testimony. – Parties with legal standing testimony. – Non-party witnesses testimony.
• All who testify must be sworn in. • Public comment (outside of quasi-judicial hearings).
X. Manner of Acting • Motions: – The Board shall follow Robert’s Rules of Order.
• Voting: – Majority vote to decide matters before the Board except on final decisions for allowing a variance. – Variances require a vote of four-fifth’s majority for approval.
XI. Manner of Acting (cont.) • Abstentions: – Shall abstain from voting if the outcome is likely to have a direct, substantial, and readily identifiable financial impact. – Have a close familial, business, or other associational relationship with an affected person. – Have had ex parte communication.
• 48 hour advance notice preferred, but in no case shall a Board member participate in the hearing, other than as a private citizen, if there is a conflict of interest as defined under XII General Conduct.
XII. Open Meetings Law • All meetings are open to the public. • Are allowed to go into closed session if consulting with the Town Attorney on legal matters. • Email correspondence should only be directed to the Planning Director and not other Board members. • Avoid ex parte communication.
XIII. General Conduct • Attendance: – Notify the Planning Department or Chair if a meeting will be missed.
• Conduct: – Ethical and professional manner. – Members should avoid engaging in inflammatory or threatening language or behavior.
• Only the Chairperson speaks for the Board.
Comments and Questions
