AN ACT TO CLARIFY AND MODERNIZE STATUTES REGARDING ZONING BOARDS OF ADJUSTMENT. Enacted June 19, 2013. Effective October 1, 2013.
Summary date: Jun 24 2013 - View summary
Summary date: Jun 4 2013 - View summary
Senate amendment makes the following changes to the 3rd edition. Makes an exception to the repeal of GS 153A-345 (regarding boards of adjustment in counties)to provide that any local modification to GS 153A-345 in effect on September 30, 2013, is to be treated as a local modification to GS 160A-388 (regarding boards of adjustments incities)from October 1, 2013, through June 30, 2015.
Summary date: May 30 2013 - View summary
Senate committee substitute makes the following changes to the 2nd edition.
Makes technical and clarifying changes to GS 160A-388(a1), (a2), and (b1).
Summary date: Apr 8 2013 - View summary
House committee substitute makes the following changes to the 1st edition.
Amends GS 160A-388, providing that a zoning or unified development ordinance (UDO) can designate a planning board or governing board to perform any of the duties of board of adjustment in addition to its other duties and may create and designate specialized boards to hear technical appeals.
Makes organizational changes.
Expands GS 160A-388(b)(4), requiring the sign that is to be posted in accordance with this section to include the means to contact an official for information about the appeals decision. Expands GS 160A-388(b)(6), to also provide that an appeal of a notice of a violation or other enforcement order stays enforcement of the action appealed unless it is certified, by affidavit, that a stay would cause imminent peril to life or property. Also provides that an appellant can request and the board may grant a stay of a final decision of permit application or building permits affected by the issue being appealed.
Enacts new GS 160A-388(b)(10), providing that parties to an appeal that have been made under this subsection can agree to mediation or other forms of alternative dispute resolution. Such standards and procedures can be set by the UDO.
Makes organizational changes.
Amends GS 160A-388(f), stating that both the chair of the board of adjustment and the clerk to the board have authority to administer oaths and affirmations in regards to witnesses and matters coming before the board.
Recodifies GS 160A-388(e1) as GS 160A-388(e)(2) and makes conforming changes.
Makes technical and conforming changes. Replaces references to GS 153A-345(e1), now recodified, with GS 160A-388(e)(2). These changes occur in GS 153A-44, GS 153A-336(a), GS 153A-340(c1), GS 160A-75, GS 160A-377(a), GS 160A-393(c)(3) and GS 160A-393(j)(2).
Repeals GS 153A-349(c) which defined a term in GS 160A-388(e1).
Amends GS 153A-349.8(c), making a conforming change by replacing a reference to GS 153A-345(b) with GS 160A-388(b1).
Summary date: Mar 12 2013 - View summary
Amends GS 160A-388 regarding zoning boards of adjustment. Provides that a zoning or unified development ordinance may provide for the appointment and compensation of a board of adjustment.Also provides thatthe ordinance may assign the duties of a board of adjustment to a planning board or governing board in addition to that board's other duties.
Specifies the provisions to be in the ordinance. Provides that the zoning or unified development ordinance may designate the board of adjustment to hear and decide special and conditional use permits, variances, and appeals of decisions by administrative officials responsible for enforcing the ordinance. Defines decision to mean any final and binding order, requirement, or determination. Directs the board of adjustment to follow quasi-judicial procedures in deciding appeals and requests for variances and special and conditional use permits. Provides that the board is to hear all matters upon which it is required to pass under any statute or ordinance that regulates the use of land development.
Designates the persons or entities whoare entitled toreceive notice of hearings conducted under this statute. Requires that the notice be deposited in the mail at least 10 days but not more than 25 days before thehearing date. Also requires the city to prominently post a notice of hearing on the site that is the subject of the hearing or an adjacent streetor highway right-of-way within the same time limits as notice by mail.
Provides that the city or any person with standing under GS 160A-393(d) may appeal a decision to the board of adjustment. Requires that a notice of appealbe filed with the city clerk and that the notice state the grounds for the appeal. Directs the board of adjustment to hear and decide appeals from any decision by an official responsible for enforcing a zoning or unified development ordinance and provides that the board may hear appeals arising out of any other ordinance that regulates land use. Specifies that there is a presumption of constructive notice of a decision, to all persons with standing to appeal, from the date a sign is prominently posted on the property that is the subject of the decision, with thewords "Zoning Decision" or Subdivision Decision" in letters at least six inches high. Requires that the sign remain on the property for at least 10 days. However, posting of signs is not requiredunlessthere is an ordinance provision that requires it.Provides additional criteria regarding the appeal process including transmission of the record, providing notice to parties andwitnesses,and relevant rules regarding timing. Provides that when the appeal is under GS 160A-400.9(e), or any appeal to re-examine the decision of an administrative official, the hearing is to be based on the record below and the scope of review as provided in GS 160A-393(k).
Makes clarifying and conforming changes to language regarding special and conditional use permits. Provides that reasonable and appropriate conditions may be imposed on special and conditional use permits.
Authorizes the board of adjustment togrant a varianceof an ordinance when unnecessary hardships (was, practical difficulties or unnecessary hardships) would result from carrying out the strict letter of the law; however, specifies factors that must be shown before the provisions of the ordinance may be varied.
Provides that 4/5 of the board must concur in granting a variance (was, required 4/5 concurrence to make any decision). Requires a majority vote of the board members to decide any other quasi-judicial matter or to determine an appeal. Provides that vacant positions or members disqualified from voting on a quasi-judicial matter are not to be counted as board members for purposes of calculating a majority (was, supermajority) if there are no qualified alternates to take the place of those members.
Clarifies what constitutes impermissible violations of due process (was, impermissible conflicts).
Further provides that quasi-judicial decisions must be based on competent, material, and substantial evidence in the record and reduced to writing. Specifies content that the written decision must include and the process for notice of the decision. Provides that every quasi-judicial decision is subject to review by the superior court under GS 160A-393. Requires that a petition for review be filed with the clerk of superior court by the later of30 days after the decision is effective or after a written copy of the decision is delivered by mail, electronic mail, or personal delivery.
Provides that any person who lies while under oath during a hearing before the board is guilty of a Class 1 misdemeanor.
Provides that the board chair or anyone acting as chair in the chair's absence may subpoena witnesses and compel the production of evidence. Provides criteria under which persons with standing under GS 160A-393(d) may request that a subpoena be issued to compel witnesses or evidence.
Repeals GS 153A-345 pertaining to board of adjustment in counties.
Enacts new GS 153A-345.1 to provide that the provisions of GS 160A-388, regarding boards of adjustment, apply to counties. Provides that "city council" as used in GS 160A-388 is deemed to refer to the "board of county commissioners" and that the terms "city" or "municipality" refer to the "county." Includes guidelines regarding counties in which a board of county commissioners does not zone the entire territorial jurisdiction of the county.
Also makes conforming changes to GS 160A-381(c) and GS 153A-340(c1).
Makes additional conforming and clarifying changes.
Effective October 1, 2013, and applies to all board of adjustment actions taken on or after that date.