HomeMy WebLinkAboutORD-2014-010 Correction to Ordinance 2014-001 Board of Adjustment Operations and ProceduresOrdinance #:
AN ORDINANCE AMENDING
THE UNIFIED DEVELOPMENT ORDINANCE OF ORANGE COUNTY
WHEREAS, recent changes in State Law, specifically Session Law 2013 -126 signed
into law on June 19, 2013, modified the processing and review of variance,
interpretation /appeal, and special use permit applications by the Board of Adjustment, and
WHEREAS, the County had determined existing language within the UDO needed to
be modified to ensure consistency with these changes, and
WHEREAS, the County has held the required public hearing and has found the
proposed text amendment is consistent with the adopted Comprehensive Plan, and
WHEREAS, staff discovered spelling and typographical errors with the original
Ordinance, specifically Ordinance 2014 -001 adopted on January 23, 2014, and
WHEREAS, this Ordinance addresses those errors.
BE IT ORDAINED by the Board of Commissioners of Orange County that the Unified
Development Ordinance of Orange County is hereby amended as depicted in the attached
pages.
BE IT FURTHER ORDAINED that this ordinance be placed in the book of
published ordinances and that this ordinance is effective upon its adoption.
Upon motion Commissioner ` "S�- seconded by
Commissioner eP the foregoing ordinance was adopted this
_2 day of __ �/t 2014.
I, Donna S. Baker, Clerk to the Board of Commissioners for Orange County, DO
HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said
Board at a meeting held on (e 2014 as relates in any way to
the adoption of the foregoing and that said proceedings are recorded in the minutes of the
said Board.
WITNESS my hand and the seal of said County, this 1-3 day of
2014.
C at
kL-��h�
Clerk to the Board of Commissioners
5
UDO AMENDMENT PACKET NOTES:
The following packet details staff's proposed modifications to existing regulations to incorporate
recent changes in State law with respect to items reviewed and acted upon by the Orange County
Board of Adjustment.
As the number of affected pages /sections of the existing UDO are being modified with this
proposal staff has divided the proposed amendments into the following color coded
classifications:
• Red Underlined Text: Denotes new, proposed text, that staff is suggesting be
added to the UDO
• Red Str4kethr,.ugh Tex : Denotes existing text that staff is proposing to delete
Staff has included footnotes within the amendment package to provide additional
information/rationale concerning the proposed amendments to aid in your review.
Only those pages of the UDO impacted by the proposed modification(s) have been included
within this packet. Some text on the following pages has a large "X" through it to denote that
these sections are not part of the amendments under consideration. The text is shown only
because in the full UDO it is on the same page as text proposed for amendment or footnotes from
previous sections `spill over' onto the included page. Text with a large "X" is not proposed for
deletion.
Please note that the page numbers in this amendment packet may or may not necessarily
correspond to the page numbers in the adopted UDO because adding text may shift all of
the text /sections downward.
Users are reminded that these excerpts are part of a much larger document (the UDO) that
regulates land use and development in Orange County. The full UDO is available online at:
htt : / /oran ecountynnc.goy/ lap nning/Ordinances.asp
Article 2: Procedures 6
Section 2.10: Variances
(G) Effect of Approval
(1) Approval of a CZD is binding on the property and the development an se of the
subject property shall be governed by the Ordinance re/ZD plicable to
the specific CZD district and all approved conditions.
( The applicant shall comply with all requirements establiD
Ordinance. Only those uses and structures included in ance and
approved site plan shal l be allowed on the subject prop
(H) Zoning A s Designation
Following app val of the CZD district by the Board of C my Commissioners, the
subject property all be identified on the Zoning Atla y the appropriate district
designation.
(1) Alterations to an App ved CZD
(1) Except as provide in Section 6.7. or MPD -CZ projects, changes to approved
plans and conditions develop ent shall be treated as changes to the zoning
atlas and shall be proce sed an amendment to such as contained in this
Article.
(2) The Planning Director y ap ove minor changes without going through the
amendment process he Plann g Director, at his /her discretion, may elect not
to allow any prop al as a minor ch nge and will forward the detailed application
for changes to Ke Planning Board an Board of County Commissioners for
con side ratio n accordance with the pro edures outlined herein.
/Hearing ange is one that will not:
ter the basic relationship of the propo d development to adjacent
operty,
ter the approved land uses,
crease the density or intensity of development, d /or crease the off - street parking ratio or reduce the bu r yards provided
the boundary of the site.
2.9.3 ication Requirements — CUD and CZD
The requirement for a public hearing shall follow the procedures for a Zoning Atlas Amend ent in
Section 2.8.6. Notice of the public hearing shall follow the procedures in Section 2.8.7. \
2.10.1 Purpose
The procedures of this section authorize the Board of Adjustment to modify or vary regulations of
this Ordinance when strict compliance with the regulation or standard would result in pFas#iGal
cliff ^a,,,, 'fir unnecessary hardships upon the subject property.'
2.10.2 Application Requirements
(A) Applications for a Variance shall be submitted on forms provided by the Planning
Department in accordance with Section 2.2 of this Ordinance. Ten copies of the
application and supporting documentation shall be submitted.
(B) Applications shall include:
(1) The section reference, and copy of the existing regulatory language, that is the
subject of the application,
i Language is recommended for deletion in order to be consistent with recent modificaitons to State law.
Orange County, North Carolina — Unified Development Ordinance Page 2 -30
Article 2: Procedures 7
Section 2.10: Variances
(2) A description of the specific modification sought by the applicant. For example, if
the request is for a modification of a corner lot setback requirement, the applicant
shall provide the exact reduction of the established corner lot setback requested
as part of the application,
(3) A plot plan, site plan, or other similar document(s) denoting the physical impact
of the proposed request on the parcel,
(4) A narrative outlining the answers to the five required findings detailed within
Section 2.10.3 of the Ordinance justifying the issuance of the variance, and
(5) Copies of any additional information deemed essential by the applicant justifying
the approval of the request.
2.10.3 Authorized Variances
A variance may be approved by the Board of Adjustment in cases invelvi;g -where praG4
diffi 'moo,- unnecessary hardships would result from carrying out the strict letter of the
Ordinance, when substantial evidence in the official record of the application supports all of the
following findings:
(A)
the applicant and n not suffe Fed in nnmmnn With nth °r nr°n°rty c milnrly
leeatedUnnecessary hardship would result from the strict application of the Ordinance. It
shall not be necessary to demonstrate that, in the absence of the variance, no
reasonable use can be made of the property.
f
nnv °n' °nn° and iRability to attain a high er fin ial r°t6Irn 2
(£)(P) The hardship results from conditions that are peculiar to the property, such as location,
size, or topography. Hardships resulting from personal circumstances, as well as
hardships resulting from conditions that are common to the neighborhood or general
public, may not be the basis for granting a variance. The vafiaece, if appF ved will net
01-1-hstantially iRterfere with GF iRjUFe the Fights Gf ethers whose pF e affeGted
QFd;RaRGe and +h° The hardship did not result from actions
taken by the applicant or the property owner. The act of purchasing property with
knowledge that circumstances exist that may justify the granting of a variance shall not
be regarded as a self- created hardship.
publ!G benefits intended to be seGUred by this QFdinanGe and the iRdividual hardships that
will be o iffered by a failure of the Beard of c, ustrnent to grant vaFiaRGeThe requested
variance is consistent with the spirit, purpose and intent of the Ordinance such that
Public safety is secured and substantial justice is achieved.
2 Recent revisions to State Law include language indicating it shall: `not be necessary to demonstrate that, in the
absence of the variance, no reasonable use can be made of the property'. As a result we can no longer have such
language in the UDO to the contrary.
3 Correction of typo, in underlined red bold text, identified at the December 4, 2013 Planning Board meeting.
4 Staff deleted the repeated `hardships resulting from personal circumstances' phrase here as identified at the
December 4,2013 Planning Board meeting.
5 Portions of existing subsections (D) and (E) have been combined to reflect wording changes in State law with
respect to the required findings for the granting of a variance. Staff has modified this entire section to ensure
required findings are consistent with new language in State law.
Orange County, North Carolina — Unified Development Ordinance Page 2 -31
Article 2: Procedures $
Section 2.10: Variances
2.10.4 Additional Criteria for Authorized Variances —Special Flood Hazard Area Overlay Zoning
District
In addition to the criteria contained within Section 2.10.3, any application for a variance from the
Special Flood Hazard Area Overlay Zoning District shall abide by the following additional criteria:
(A) Variances may be issued for the repair or rehabilitation of historic structures upon the
determination that the proposed repair or rehabilitation will not preclude the structure's
continued designation as a historic structure and the variance is the minimum necessary
to preserve the historic character and design of the structure.
(B) In considering variances from the requirements of the Special Flood Hazard Area Overlay
Zoning District, the Board of Adjustment shall consider all technical evaluations, all
relevant factors, all standards specified in other sections of this Ordinance, and :6
(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 Orange
County;
(5) The necessity to the facility of a waterfront location, where applicable;
(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;
(8) The relationship of the proposed use to the Orange County Comprehensive Plan
and floodplain management program for the 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 flood waters and the effects of wave action, if applicable, expected at the site;
(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; and
(12) The request for a variance is not after - the -fact or for a situation of one's own
making.
(C) A written report addressing each of the above factors shall be submitted with the
application for a variance.
(D) Upon consideration of the factors listed above and the purposes of this Ordinance, the
Board of Adjustment may attach such reasonable conditions to the granting of variances
as it deems necessary to further the purposes of this Ordinance.
(E) Variances shall not be issued within any designated floodway or non - encroachment area
if any increase in flood levels during the base flood discharge would result.
(F) Conditions for Variances:
(1) Variances may not be issued when the variance will make the structure in
violation of other Federal, State, or local laws, regulations, or ordinances.
(2) Variances shall only be issued upon a determination that the variance is the
minimum necessary, considering the flood hazard, to afford relief.
6 Standards governing the issuance of a variance within a floodplain are consistent with FEMA requirements.
Applicants are still required to demonstrate compliance with these provisions when requesting a variance.
Orange County, North Carolina — Unified Development Ordinance Page 2 -32
Article 2: Procedures 9
Section 2.10: Variances
(3) Variances shall only be issued upon:
(a) A showing of good and sufficient cause;
(b) A determination that failure to grant the variance would result in
exceptional hardship;
(c) A determination that the granting of a variance will not result in increased
flood heights, additional threats to public safety, or extraordinary public
expense, create nuisance, cause fraud on or victimization of the public,
or conflict with existing local laws or ordinances; and,
(d) That the circumstances on the subject property are unique to the subject
property and not to properties in general.
(G) Any applicant to whom a variance is granted shall be given written notice specifying the
difference between the Base Flood Elevation (BFE) and the elevation to which the
structure is to be built and a written statement that the cost of flood insurance will be
commensurate with the increased risk resulting from the reduced reference level
elevation. Such notification shall be maintained with a record of all variance actions.
(H) The Floodplain Administrator shall maintain the records of all appeal actions and report
any variances to the FEMA and the State of North Carolina upon request.
2.10.5 Additional Criteria for Authorized Variances — Watershed Protection Overlay District
(A) Minor variances for dimensional requirements of the Watershed Protection Overlay
District may be approved by the Board of Adjustment in accordance with Section 2.12 of
this Ordinance.
(B) The Board of Adjustment may approve variance applications to allow the use of off -site
septic easements for lots created before January 1, 1994, and for non - conforming lots of
record.
(C) A description of each project receiving a variance and the reason for granting the
variance shall be submitted for each calendar year to the Division of Water Quality on or
before January 1st of the following year.
(D) All other local governments having jurisdiction within the watershed area and the entity
using the water supply for consumption shall be notified of the variance application at
least 15 days prior to action on the application. The Planning Department shall notify
other local governments via first class mail.
(E) Modifications of the Impervious Surface Ratio
Modifications of the Impervious Surface Ratios may be requested through one of the
following provisions:
(1) Through variance procedures of the Board of Adjustment, as described in this
subsection (2.10.5).
(2) Through approval and recordation of a conservation agreement, as provided in
Article 4 of Chapter 121 of the N.C. General Statutes, between Orange County
and a land owner that prohibits development of land in a protected watershed in
perpetuity.
(a) In such cases, a modification of the required impervious surface ratios
may be approved administratively but only to the extent that additional
land in the same watershed is conserved or protected from development.
In such instances, the land that will be subject to a conservation
agreement must be adjacent to the land proposed for development and
for which a modification of the impervious surface ratios is sought.
Orange County, North Carolina — Unified Development Ordinance Page 2 -33
Article 2: Procedures 10
Section 2.10: Variances
(i) As an example, a person owning a 40,000 square foot lot and
subject to a 12% impervious surface ratio would be limited to
4,800 square feet of impervious coverage. If the person's plans
called for 5,500 square feet of coverage (a difference of 700
square feet), the recording of a conservation easement on 5,833
square feet of contiguous property would satisfy the impervious
surface ratio requirements. (12% of 5,833 square feet is 700
square feet.)
(b) The conservation easement shall describe the property restricted in a
manner sufficient to pass title, provide that its restrictions are covenants
that run with the land and, in form, be approved by the County Attorney.
(c) The conservation easement shall, upon its recording, be in the place of a
first priority lien on the property (excepting current ad valorem property
taxes) and shall remain so unless, with the approval of Orange County, it
is released and terminated.
(i) Orange County shall require the priority of the conservation
easement to be certified by and attorney -at -law, licensed to
practice law in the State of North Carolina and approved to
certify title to real property by a lending institution (bank or
savings and loan association) doing business in Orange County.
(d) Orange County approval of a release or termination of the conservation
agreement shall be declared on the document releasing or terminating
the agreement.
(i) The document shall be signed by the Orange County Manager,
upon approval of the Orange County Board of Commissioners.
(ii) No such document shall be effective to release or terminate the
conservation agreement until it is filed for registration with the
Register of Deeds of Orange County.
2.10.6 Procedure for Certain Stream Buffer Variance Requests
Requests for variances from stream buffer requirements within 50 -feet from the top of the stream
bank shall abide by the following procedure:
(A) The Erosion Control Officer shall make a finding of fact as to whether the following
requirements have been met:
(1) There are practical difficulties or unnecessary hardships that prevent compliance
with the strict letter of the stream buffer protection requirements. Practical
difficulties or unnecessary hardships shall be evaluated in accordance with the
following:
(a) If the applicant complies with the provisions of the stream buffer
requirements, he /she can secure no reasonable return from, nor make
reasonable use of, his /her property.
(i) Merely proving that the variance would permit a greater profit
from the property will not be considered adequate justification for
a variance.
(ii) Moreover, the Erosion Control Officer shall consider whether the
variance is the minimum possible deviation from the stream
buffer requirements that will make reasonable use of the
property possible.
(b) The hardship results from application of the stream buffer requirements
to the property rather than from other factors such as deed restrictions or
other hardship.
Orange County, North Carolina — Unified Development Ordinance Page 2 -34
(B)
(C)
(D)
(E)
(F)
Article 2: Procedures 11
Section 2.10: Variances
(c) The hardship is due to the physical nature of the applicant's property,
such as its size, shape, or topography, which is different from that of
neighboring property.
(d) The applicant did not cause the hardship by knowingly or unknowingly
violating the stream buffer requirements.
(e) The applicant did not purchase the property after the effective date of the
stream buffer requirements, and then request a variance.
(f) The hardship is unique to the applicant's property, rather than the result
of conditions that are widespread.
(i) If other properties are equally subject to the hardship created in
the restriction, then granting a variance would be a special
privilege denied to others, and would not promote equal justice.
(g) The variance is in harmony with the general purpose and intent of the
State's riparian buffer protection requirements and preserves its spirit;
and
(h) In granting the variance, the public safety and welfare have been
assured, water quality has been protected, and substantial justice has
been done.
If the Erosion Control Officer determines that a variance request meets the requirements
in (A) above, then he /she shall prepare a preliminary finding and submit it to the State's
Environmental Management Commission.
Preliminary findings on variance requests sent to the State's Environmental Management
Commission shall be reviewed by said Commission within 90 days after receipt by the
Director of the Environmental Management Commission.
The purpose of the State Environmental Management Commission's review is to
determine if it agrees with the Erosion Control Officer's findings regarding whether that
the requirements in subsection (A) have been met.
The following actions shall be taken depending on the State Environmental Management
Commission's decision on the variance request:
(a) Upon the State Environmental Management Commission's approval, the
Erosion Control Officer shall issue a final decision granting the variance.
(b) Upon the State Environmental Management Commission's approval with
conditions or stipulations, the Erosion Control Officer shall issue a final
decision, which includes these conditions or stipulations.
(c) Upon the State Environmental Management Commission's denial, the
Erosion Control Officer shall issue a final decision denying the variance.
Requests for appeals of determinations made by the State's Environmental Management
Commission that the requirements of subsection (A) have not been met shall be made to
the State's Office of Administrative Hearings.
2.10.7 Unauthorized Variances
(A) Other than stream buffer variances outside of the first 50 -feet from the centerline of a
stream, the Board of Adjustment is not authorized to grant variances to any of the
standards of:
(1) Article 7 - Subdivision Design and Improvements,
(2) Section 6.15 - Erosion and Sedimentation Control,
(3) Section 6.14 - Stormwater Management, and
(4) Section 6.16 - Environmental Impact Reports
Orange County, North Carolina — Unified Development Ordinance Page 2 -35
Article 2: Procedures 12
Section 2.11: Interpretations
(B) The Board of Adjustment is not authorized to grant a variance that would permit a use in
a district where that use is neither a Permitted Use nor a Special Use.
2.10.8 Review Procedures
(A) Applications for a Variance shall be reviewed and acted upon by the Board of Adjustment
in accordance with the procedures contained in Section 2.12 of this Ordinance.
(B) The Planning Director shall complete an assessment of the application and provide a
recommendation on the disposition of the application.
(C) The assessment shall be introduced at the hearing and become part of the record.
2.10.9 Findings of Fact
(A) Required findings of fact, as listed in Section 2.10.3, shall be made in the indicated order
by the Board of Adjustment.
(B) The Board of Adjustment is not empowered to grant a variance without an affirmative
finding of fact supported by substantial evidence in the record of proceedings before the
Board.
2.10.10 Conditions of Approval
The Board of Adjustment may impose
th;;t the pubk health, safety, and general welfaFe aFe proteGted and substantial jUSt'Ge
fie. appropriate conditions provided that such conditions are reasonably related to the
variance.
2.10.11 Notice Requirements
Notice of matters before the Board of Adjustment shall follow the procedures in Section 2.12.6.
SECTION 2.11: INTERPRETATIONS
2.11.1 General
An appeal from an order, requirement, decision or determination of the Planning Director shall be
decided by the Board of Adjustment based upon its findings of fact and to achieve the intent of
this Ordinance. In exercising this power, the Board of Adjustment shall act in a prudent manner
so that the purposes of this Ordinance shall be served. The effect of the decision shall not be to
vary the terms of this Ordinance nor add to the list of Permitted Uses in the districts.
2.11.2 Application Requirements
(A) Applications for an appeal of an interpretation of a decision, file determination, directive,
Notice of Violation, or other similar determination shall be submitted on forms provided by
the Planning Department in accordance with Section 2.2 of this Ordinance. Ten copies of
the application and supporting documentation shall be submitted.
(B) Applications must be received by the Planning Director no later than 30 days after the
decision, file determination, directive, Notice of Violation, or other similar determination
was made.
2.11.3 Stav on Further Proceedi
(A) An appeal to the Board of Adjustment from a decision or determination of the Planning
Director stays all proceedings in furtherance of the decision or determination appealed
from, except as provided herein.
' Staff is recommending existing language referencing `public health, safety, general welfare' as well as `substantial
justice' be deleted as this wording does not appear in the Statute.
Orange County, North Carolina — Unified Development Ordinance Page 2 -36
Article 2: Procedures 13
Section 2.12: Board of Adjustment
(B) An appeal to the Board of Adjustment of a determination or decision of the Planning
Director shall not stay further proceedings in furtherance of the decision or determination
appealed from, if the Planning Director det^T iRes certifies to the Board of Adjustment in
an affidavit$ either:
(1) That, in the epinion of the Planning Dire^t^r a stay Would ^^ se imminent peril to
life ^ndl^r nr^„er+„ A stay would cause imminent peril to life or property, or,-
(2) That- theThe situation appealed from is transitory in nature and, therefore an
appeal would seriously interfere with enforcement of the Ordinance.
{3)LCLIn either instance, the Planning Director shall place in the determination facts to support
the conclusion if (B)(1) and /or (B)(2) are invoked.
{G)( D) If (B)(1) and /or (B)(2) are invoked, and approved by the Board of Adjustment,
enforcement proceedings shall not be staved except through the issuance of a restraining
order issued by a court of competent jurisdiction. If enforcement proceedings are not
staved, the appellant may file a request for an expedited hearing of the appeal.
2.11.4 Review Procedures
(A) Applications for an appeal of an interpretation shall be reviewed and acted upon by the
Board of Adjustment in accordance with the procedures contained in Section 2.12 of this
Ordinance.
(B) The conduct of the hearing shall be consistent with the provisions of Section 2.12 of this
Ordinance.
(C) The Planning Director shall complete an assessment of the application and provide a
recommendation on the disposition of the application. The assessment shall include all
relevant facts utilized in rendering the disputed decision and the rationale for the
interpretation made by the Planning Director.
(D) The assessment shall be introduced at the hearing and become part of the record.
(E) Upon hearing all evidence associated with the application, the Board of Adjustment shall
close the hearing and render a decision on the matter to affirm, modify, or reverse the
decision of the Planning Director.
2.11.5 Findinas of Fact
The Board of Adjustment shall provide a detailed rationale for its decision in the form of an order
to affirm, modify, or reverse the decision of the Planning Director. This order shall provide the
necessary justification for the Board's action based on the testimony and evidence entered into
the record during the hearing.
2.11.6 Notice Reauirements
Notice requirements shall follow Section 2.12.6(A). Other subsections of Section 2.2.6 are not
applicable to applications for an appeal of an interpretation.
2.12.1 General Provisions
(A) The Board shall act on all applications before it.
(B) The Board shall act on any appeal of a Stop Work Order issued by the Planning Director
at its next regularly scheduled meeting or at a special meeting called for that purpose.
s Staff corrected the spelling of affidavit, denoted in red underlined bold text, here.
9 Staff is adding new language consistent with changes in State law.
Orange County, North Carolina — Unified Development Ordinance Page 2 -37
Article 2: Procedures 14
Section 2.12: Board of Adjustment
2.12.2 Quasi - Judicial Proceedings
(A) The Board of Adjustment acts in a quasi-judicial capacity. However, it is not intended
that its proceedings be conducted as formally as those before courts.
(B) The rules of procedure and evidence set forth in this Ordinance shall be followed to
protect the interests of all parties and the public.
(C) The presiding officer shall administer oaths to all witnesses and shall make rulings
necessary to preserve fairness, order, or proper decorum in any matter before the Board
of Adjustment. Any person who, while under oath during a proceeding before the Board,
willfully swears falsely is guilty of a Class I misdemeanor.
(D) Any member of the Board of Adjustment or any interested party may object to, and the
presiding officer may exclude, any evidence, testimony, or statement that is deemed
incompetent, irrelevant, immaterial, or unduly repetitious and therefore fails to reasonably
address the issues before the Board of Adjustment.
2.12.3 Evidence and Testimon
(A) Interested Party
(1) Any interested party may present evidence or testimony, cross - examine
witnesses, inspect documents, and offer evidence or testimony in explanation or
rebuttal.
(2) Any member of the Board of Adjustment may question any interested party.
(3) Persons other than interested parties may make competent, relevant, and
material comments.
(B) Subpoenas
(1) The Board of Adjustment may subpoena witnesses and compel the production of
evidence.
2) To reauest issuance of a subpoena. persons with standing as detailed under
NCGS 160A -939 (d), shall make a written request to the chair explaining why it is
necessary for certain witnesses or evidence to be compelled. The chair shall
issue requested subpoenas in those cases where testimony or evidence is
deemed to be relevant, reasonable in nature and scope, and not oppressive.
(3) The chair shall rule on any motion to quash or modify a subpoena. Decisions
regarding subpoenas made by the chair may be appealed to the full Board.
{4L4L_If a person fails or refuses to obey a subpoena issued pursuant to this
subsection, the Board of Adjustment, or the party seeking the subpoena, may
apply to the General Court of Justice for an order requiring that its order be
obeyed, and the Court will have jurisdiction to issue those orders after notice to
all proper parties.
(34j5L_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 any civil or criminal action, other than a prosecution
for false swearing committed on the examination.
{4)(6) Anyone who, while under oath during a proceeding before the Board of
Adjustment, willfully swears falsely, is guilty of a Class 1 misdemeanor.
2.12.4 Quorum and Vote Required
(A) A quorum of the Board is necessary to conduct any business and shall consist of four
members.
(B) The affirmative vote of four of the members of the Board shall be necessary in order to
effect any variation in this Ordinance:.
Orange County, North Carolina — Unified Development Ordinance Page 2 -38
Article 2: Procedures 15
Section 2.13: Exempt Subdivisions
(C) A maiority of the members shall be required to decide on the issuance of a Class B
Special Use Permit or an appeal application. "
2.12.5 Notification of Board Action
(A) Within five working days after Board action, the Planning Director shall have available in
the Planning Department's office a notice of decision of the Board's action.
(B) The Planning Director shall notify the parties to an application or appeal of the Board's
disposition. This includes the applicant, the property owner if different from the applicant
or any individual who has submitted a written request for a copy prior to the date the
decision becomes effective. 'This notice shall be made by registered or certified mail
within five working days of the Board's actions. 12
(C) The Planning Director shall keep a copy of the Board's action on file.
2.12.6 Notice Requirements for Matters Before the Board
(A) The Board shall give notice of matters coming before it by causing notice to be place
a newspaper of general circulation in Orange County. The notice shall appear o9pe a
week for two consecutive weeks, the first insertion to be not less than ten day or more
an 25 days prior to the meeting date. In computing the notice period, th ay of
pu ation is not to be included, but the day of the hearing is to be in ded.
(B) In the ca of application for a Class B Special Use permit or v 'ance the Planning
Director sha 've written notice by certified mail to adjace roperty owners. This
notice shall be gi n not less than 15 days prior to the eting date. Adjacent property
owners are those wh e property lies within 500 fe of the affected property and whom
are currently listed as pr rty owners in the O nge County tax records.
(C) The Planning Director shall po n the cted property a notice of the Board meeting at
least ten days prior to the meeting
(D) In the case of an appeal of a p Work der issued by the Planning Director, the
Planning Director shall giv ritten notice by rtified mail to the property owner, and /or
person(s) engaged in alleged violation. Noti tion of adjacent property owners,
posting of propert ,and publication of a hearing note is not required.
2.13.1 Gen
Persons proposing divisions of land that do not constitute a subdivision m request a
determination of an exempt subdivision status with the Planning Director. Ac ti ' ies that
do not constitute a subdivision are found in Section 7.2.1.
10 Simple majority vote is now all that is necessary to approve a SUP or act on an appeal.
' 1 State law now allows for individuals to petition the Board of Adjustment requesting notification of any decision.
We are incorporating this allowance with the proposed modification.
12 Staff sends out notice of decisions via certified mail. State law was modified to allow for first -class mail to be
utilized. We are not recommending changing our current procedure as we believe sending decisions via certified
mail ensures we have a record of our actions.
Orange County, North Carolina — Unified Development Ordinance Page 2 -39
Article 2: Procedures 16
Section 2.25: Appeals
(B) Public Hearing Required
(1) The EIS, along with all comments received during the review perio , shall be
presented for public hearing concurrently with the development oject.
(2 If a public hearing before the Board of County Commission s is not required for
approval of the development project, then a special hea ' g shall be scheduled.
e hearing shall take place no later than 30 days of r the close of the public
revi period or receipt of comments from the St Clearinghouse, whichever is
later.
(C) Notice of Public He ing
(1) Notice of the pub' hearing to revie e EIS and receive public comment shall
be published at leas ice in a n spaper of general circulation in the county,
stating the time and pla of t hearing.
(2) Said notice shall appear i s ' newspaper for two successive weeks with the
first notice appearing less th ten nor more than 25 days before the date set
for the public heari . I n c omputin he notice period, the day of publication is
not to be includ , but the day of the h ring is to be included.
(D) Board of County mmissioners Action
(1) The B rd of County Commissioners shall recei the EIS and all comments as
info ation only. The information presented may be sed only to determine
mpliance with specific development standards estab i hed in this Ordinance.
(2) No action shall be taken on the development project until a the EIS has been
presented to the Board of County Commissioners.
(E) Effect on Other Permits and Actions
Construction or installation of any major development project shall not commenc ntil
subsequent to the filing of a Finding of No Significant Impact or acceptance of the FN I
EIS by the Board of County Commissioners.
2.25.12.26.1 Generally
Appeal applications shall be filed in accordance with Section 2.2 within 30 days of the decision
being appealed on forms provided by the Planning Department, if applicable.
2.25.22.26.2 Planning Director Decisions
(A) Site Plans or Other Decision Pertaining to this Ordinance
Any decision of the Planning Director regarding a site plan application or other decision
pertaining to this Ordinance not listed in (B) through (D) below may be appealed to the
Board of Adjustment according to the provisions set forth in Section 2.12 of this
Ordinance.
(1) An appeal to the Board of Adjustment from a decision or determination of the
Planning Director stays all proceedings in furtherance of the decision or
determination appealed from, except:
(a) Situations that, in the opinion of the Planning Director, a stay would
cause imminent peril to life and /or property.
13 The appeals section is proposed to be re- numbered as part of a current amendment proposal associated with
Neighborhood Information meetings for governmental uses. This amendment was heard at the September 9, 2013
Quarterly Public Hearing and will be decided upon by the BOCC on November 5, 2013.
Orange County, North Carolina — Unified Development Ordinance Page 2 -68
Article 2: Procedures 17
Section 2.26: Appeals
(b) That the situation appealed from is transitory in nature and, therefore, an
appeal would seriously interfere with enforcement of the Ordinance.
In either instance in (a) and (b) above, the Planning Director shall place in
certificate the facts to support the conclusion.
(B) Exempt Subdivisions
(1) The decision of the Planning Director regarding an exempt subdivision
application may be appealed to the Board of County Commissioners.
(2) The Board of County Commissioners shall have final approval authority, and,
where applicable, all Final Plats shall contain information and /or conditions
approved by the Commissioners.
(3) The Board of County Commissioners in all such appeals shall make findings of
fact in support of its decision. The subdivider shall be notified, in writing, of the
Board's decision.
(C) Minor Subdivisions
(1) The decision of the Planning Director regarding a minor subdivision application
may be appealed to the Board of County Commissioners.
(2) The Board of County Commissioners shall have final approval authority, and,
where applicable, all Final Plats shall contain information and /or conditions
approved by the Commissioners.
(3) The Board of County Commissioners in all such appeals shall make findings of
fact in support of its decision. The subdivider shall be notified, in writing, of the
Board's decision.
(D) Major Subdivisions - Final Plat
(1) The decision of the Planning Director regarding a Major Subdivision Final Plat
application may be appealed to the Board of Commissioners.
(2) The Board of Commissioners shall have final approval authority, and where
applicable, all Final Plats shall contain information and /or conditions approved by
the Board of Commissioners.
(3) The Board of Commissioners in all such appeals shall make findings of fact in
support of its decision.
(4) The applicant shall be notified, in writing, of the Board of Commissioners'
decision.
2.25.32.26.3 Planning Board Decisions
(A) Major Subdivisions - Concept Plan
(1) The decision of the Planning Board regarding Concept Plan Development
Options may be appealed to the Board of Commissioners.
(2) Any notice of appeal shall be filed, in writing, with the Planning Director within 15
days after the date of the Planning Board's decision.
(3) If the appeal involves a plan /map approval, 16 copies of the plan /map shall be
submitted along with the written appeal.
(4) The Board of Commissioners shall have final approval authority, and, where
applicable, all Concept Plan Development Options shall contain information
and /or conditions approved by the Board of Commissioners.
(5) The Board of Commissioners in all such appeals shall make findings of fact in
support of its decision. The applicant shall be notified, in writing, of the Board of
Commissioners' decision within ten days after said decision is made.
Orange County, North Carolina — Unified Development Ordinance Page 2 -69
Article 2: Procedures 18
Section 2.26: Appeals
2.25.42.26.4 Board of Adjustment Decisions
(A) Every decision of the Board shall be subject to review at the request of any aggFieved
partyany person who has standing as detailed within NCGS 160A -393 (d) by the Superior
Court by proceedings in the nature of certiorari. The appeal to Superior Court must be
filed within 30 days of the availability of the notice of decision (2.12.5(A)).
252.26.5 Board of County Commissioners Decisions
(A) Quasi - Judicial Decisions
(1) Quasi - judicial decisions made by the Board of County Commissioners pursuant
to the Ordinance shall be subject to review at the request of any -any person who
has standing as detailed within NCGS 160A -393 (d) agq eved pa #) by the
Superior Court by proceedings in the nature of certiorari.
(2) The appeal to the Superior Court must be filed within 30 days of the filing of the
decision of the Board of County Commissioners by the Planning Director or the
delivery of the notice of the decision to the applicant, whichever is later.
(B) Legislative Decisions
(1) Legislative decisions made by the Board of County Commissioners pursuant to
the Ordinance shall be subject to review at the request of any aggrieved party by
the Superior Court.
(2) The appeal to the Superior Court must be filed from the date of adoption of said
Ordinance within the prescribed period below:
(a) 60 days in cases involving the appeal of an Ordinance amending the
Zoning Atlas,
(b) 1 year (365 days) in cases involving the appeal of an Ordinance
amendment the UDO,
(c) 3 years (1,035 days) in cases involving an appeal based on an alleged
defect in the adoption process of an Ordinance amending the UDO.
2.25:62.26.6 Water Supply Watershed Critical Area Boundary Line
Appeal applications disputing the Planning Director's decision regarding the location of a Water
Supply Watershed Critical Area boundary line shall be accompanied by:
(A) A survey prepared by a North Carolina registered land surveyor or professional engineer
depicting the differences between:
(1) The locational criteria in Section 4.2,
(2) The official Watershed map on file in the Planning Department, and
(3) The boundary line the applicant asserts is correct.
(B) A detailed explanation describing the differences in the three boundary lines contained in
(A) above.
2.25.7-2.26.7 Special Flood Hazard Overlay District
(A) Any property owner who has received an order to take corrective action in accordance
with Section 9.7 may appeal the order to the local elected governing body by giving
notice of appeal in writing to the Floodplain Administrator and the clerk within ten
business days following issuance of the final order.
(B) The local governing body shall hear an appeal within a reasonable time and may affirm,
modify and affirm, or revoke the order.
Orange County, North Carolina — Unified Development Ordinance Page 2 -70
i
Article 2: Procedures 19
Section 2.26: Appeals
2.26:82.26.8 Soil Erosion and Sedimentation Control
(A) Appeal of Erosion Control Plan
Except as provided in subsection (D) below, the appeal of a disapproval, approval with
modifications, or approval with conditions of an Erosion Control Plan shall be governed
by the following provisions:
(1) The disapproval of, modification of, or conditions of approval attached to any
proposed Erosion Control Plan by the Erosion Control Officer shall entitle the
person submitting the plan to an appeal of the decision to the Orange County
Planning Director.
(2) If the Planning Director upholds the decision, the person shall be entitled to a
public hearing if such person submits written demand for a hearing within 15
days after receipt of written notice of disapproval, modification, or conditions of
approval.
(B) Hearings
(1) Orange County
(a) This sub - subsection pertains to appeals for land- disturbing activities
occurring outside the corporate limits of the Towns of Chapel Hill,
Carrboro, and Hillsborough, and the City of Mebane.
(b) Hearings held pursuant to this sub - subsection shall be conducted by the
Orange County Planning Board within 30 days after receipt of written
demand, as provided for in (A)(2) above.
(c) The Orange County Planning Board shall make recommendations to the
Board of County Commissioners within 30 days after the date of the
hearing on such Erosion Control Plan.
(d) The Board of County Commissioners will render its final decision on any
Erosion Control Plan appeal within 30 days of receipt of the Planning
Board recommendation.
(2) Other than Orange County
(a) This sub - subsection pertains to appeals for land- disturbing activities
occurring within the corporate limits of the Towns of Chapel Hill,
Carrboro, and Hillsborough, and the City of Mebane.
(b) Hearings held pursuant to this sub - subsection shall be conducted by a
designated agency of the appropriate town or city board within 30 days
after receipt of written demand, as provided for in (A)(2) above.
(c) The said designated agency shall make recommendations to the
appropriate town or city board within 30 days after the date of the
hearing on such Erosion Control Plan.
(d) The said appropriate town or city board will render its final decision on
any Erosion Control Plan appeal within 30 days of the receipt of the
recommendations from the said designated agency conducting the
hearing.
(C) Appeal from Local Government's Decision
If the local governing body upholds the disapproval, modification, or conditions of
approval of a proposed Erosion Control Plan following the public hearing, the applicant
shall be entitled to appeal the local government's action to the North Carolina
Sedimentation Control Commission as provided in Section 113A -61(c) of the General
Statutes and Title 15A NCAC 46.0118.
(D) Appeal of Erosion Control Plan if Disapproval Based on Applicant's Past
Performance
Orange County, North Carolina — Unified Development Ordinance Page 2 -71
,
Article 2: Procedures 20
Section 2.26: Appeals
The applicant may appeal disapprovals issued under the provisions of Section 2.19.11 of
this Ordinance directly to the North Carolina Sedimentation Control Commission.
(E) Appeal of Land - Disturbing Stop Work Order
(1) The person conducting the land- disturbing activity may appeal a stop work order
to the Board of County Commissioners within a period of five days after the order
is issued.
(2) Notice of the appeal shall be given in writing to the Board of County
Commissioners, with a copy to the Erosion Control Officer.
(3) The Board of County Commissioners shall conduct a hearing at their next
scheduled regular meeting at which the appellant and the Erosion Control Officer
or Inspector shall be permitted to submit relevant evidence, and shall rule on the
appeal as expeditiously as possible.
(4) Pending the ruling by the Board of County Commissioners on an appeal, no
further work shall take place in violation of a stop work order.
2.25:92.26.9 Stormwater Management Plan
(A) Appeals of the Erosion Control Officer's decision on a Stormwater Management Plan
shall be made to the Orange County Planning Director.
(B) If the Planning Director upholds the decision, the applicant shall be entitled to a public
hearing if the applicant submits written demand for a hearing within 15 days after receipt
of written notice of disapproval, modification, or conditions of approval.
(C) The hearing shall be conducted by the Orange County Planning Board within 30 days
after receipt of written demand for a hearing.
(D) The Orange County Planning Board shall make recommendations to the Board of County
Commissioners within 30 days after the date of the hearing.
(E) The Board of County Commissioners shall render its final decision on any stormwater
management plan upon which a hearing is requested within 30 days of receipt of the
recommendations from the Planning Board.
2.25.102.26.10 Appeal of Stop Work Orders Regarding Stormwater Management Provisions
(A) The person conducting the development activity may appeal a stop work order to the
Board of County Commissioners within a period of five days after the order is issued.
(B) Notice of the appeal shall be given in writing to the Board of County Commissioners, with
a copy to the Erosion Control Officer.
(C) The Board of County Commissioners shall conduct a hearing at their next scheduled
regular meeting at which the appellant and the Erosion Control Officer or Inspector shall
be permitted to submit relevant evidence, and shall rule on the appeal as expeditiously as
possible.
(D) Pending the ruling by the Board of County Commissioners on an appeal, no further work
shall take place in violation of a stop work order.
2.25.112.26.11 Appeals from Final Decisions Regarding Soil Erosion and Sedimentation Control
Civil Penalties
(A) Appeal from Board of County Commissioners or Other Governing Body Decisions
Appeal from the final decision of the governing body regarding civil penalties assessed
for violations of the soil erosion and sedimentation control provisions of this Ordinance
shall be to the Superior Court of the county where the violation occurred, or in the county
where the violator's residence or principal place of business is located.
Orange County, North Carolina — Unified Development Ordinance Page 2 -72