HomeMy WebLinkAboutAgenda - 11-25-2013 - C3 87
ORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS AND
PLANNING BOARD
QUARTERLY PUBLIC HEARING ACTION AGENDA ITEM ABSTRACT
Meeting Date: November 25, 2013
Action Agenda
Item No. C.3
SUBJECT: UDO Text Amendment Related to Board of Adjustment Operation and
Procedures
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes
ATTACHMENT(S): INFORMATION CONTACT:
1. Comprehensive Plan and Unified Michael D. Harvey, Planner III (919) 245-2597
Development Ordinance Outline Form Craig Benedict, Director (919) 245-2575
(UDO & Zoning 2013-05)
2. Session Law 2013-126
3. UDO Amendment Package
PURPOSE: To hold a public hearing on a Planning Director initiated text amendments to the
Unified Development Ordinance (UDO).
BACKGROUND: Session Law 2013-126, adopted June 19, 2013, has modified procedural and
notification requirements for the Board of Adjustment. These changes include:
• Changing the votes necessary for the Board to approve a Special Use Permit application
from 4/56 of members to a simple majority,
• Clarifying the procedure(s) for requesting and issuing of subpoenas,
• Clarifying the appeals timeframe for Board of Adjustment decisions to be submitted to
Superior Court, and
• Clarifying notification requirements with respect to who is notified of a Board decision.
Staff is proposing to revise existing language within the UDO to ensure consistency with State law.
Attachment 1 provides additional background on the proposal. Attachment 2 contains a copy of the
relevant Session Law. Attachment 3 contains the proposed amendments in a "track changes"format
(red text for proposed additions and ur tr0eetllhreug.p for proposed deletions).
Ordinance Review Committee (ORC) Review: The Planning Board ORC reviewed the proposed
amendments at its October 2, 2013 ORC meeting where there were no comments on the proposal.
The required Planning Director analysis is contained in Section B.2 of Attachment 1.
Notification Procedural Requirements: Legal ads for the public hearing were placed in a
newspaper of general circulation in the County in accordance with Section 2.8.7 of the UDO.
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FINANCIAL IMPACT: Please refer to Section C.3 of Attachment 1.
RECOMMENDATION: The Planning Director recommends the Board-
1. Receive the proposed text amendment(s).
2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comment on
the proposed amendment.
3. Refer the matter to the Planning Board with a request that a recommendation be returned
to the Board of County Commissioners in time for the January 23, 2014 BOCC regular
meeting.
4. Adjourn the public hearing until January 23, 2014 in order to receive and accept the
Planning Board's recommendation and any submitted written comments.
Attachment 1 89
COMPREHENSIVE PLAN / FUTURE LAND USE MAP
AND
UNIFIED DEVELOPMENT ORDINANCE (UDO)
AMENDMENT OUTLINE
UDO / Zoning-2013-05
UDO Text Amendment(s) incorporating recent changes in State law concerning
procedural and notification requirements for the Board of Adjustment
A. AMENDMENT TYPE
Map Amendments
❑ Land Use Element Map-
From-
To:
❑ Zoning Map-
From-
To
❑ Other:
Text Amendments
❑ Comprehensive Plan Text-
Section(s)-
❑ UDO Text:
❑UDO General Text Changes
❑UDO Development Standards
❑UDO Development Approval Processes
Section(s) 1. Section 2.5 4 Site Plan Review- Procedures and
Timeframes
2. Section 2.10 Variances
3. Section 2.11 Interpretations
4. Section 2.12 Board of Adjustment
5. Section 2.25 Appeals
of the UDO to incorporate recent changes to State law with respect
to items reviewed and by the Orange County Board of Adjustment
❑ Other:
1
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B. RATIONALE
1. Purpose/Mission
In accordance with the provisions of Section 2.8 Zoning Atlas and Unified
Development Ordinance Amendments of the UDO, the Planning Director has
initiated text amendment(s) to incorporate recent changes in State Law, specifically
Session Law 2013-126, related to the processing and review of variance
interpretation/appeal, and special use permit applications by the Board of Adjustment
(BOA).
The Session Law modifies and updates procedural and notification requirements for the
various applications reviewed by the BOA, including-
1. Allowing for a simple majority vote on appeal and special use permit
applications. The General Statutes previously required a four-fifths vote of
BOA members to grant on all applications before them.
It should be noted variance requests are still required to be approved by a
four-fifths vote.
2. Adds new language spelling out the local government's responsibility for
informing a property owner of public hearings dates/times.
3. Adds new language establishing the manner in which planning decisions can
be advertised. We now have an option of posting a sign on a property where
a zoning decision/determination has been made.
This is in furtherance of allowing for a broader `notification' of planning
decisions to the general public.
4. Clarifies deadlines for filing appeals of BOA decisions with Superior Court.
5. Modifies language establishing the criteria for the issuance/denial of a
variance.
A copy of the Session Law can be found in Attachment 2.
2. Analysis
As required under Section 2.8.5 of the UDO, the Planning Director is required to:
`cause an analysis to be made of the application and, based upon that analysis,
prepare a recommendation for consideration by the Planning Board and the Board of
County Commissioners'.
The amendments are necessary to ensure our process is consistent with recent changes
in State Law.
It should be noted staff is not proposing modifications of existing notification standards.
State law, for example, requires we notify adjacent property owners of a hearing by the
BOA on a variance, appeal, or special use permit 10 days prior to said meeting via first
class mail.
The County currently sends this notice via certified mail 15 days prior to the hearing. We
will not be changing this requirement as part of this amendment process.
2
91
3. Comprehensive Plan Linkage (i.e. Principles, Goals and Objectives)
N/A
4. New Statutes and Rules
Session Law 2013-126 An Act To Clarify And Modernize Statutes Regarding Zoning
Board of Adjustment (included in Attachment 2)
C. PROCESS
1. TIMEFRAME/MILESTONES/DEADLINES
a. BOCC Authorization to Proceed
September 5, 2013
b. Quarterly Public Hearing
November 25, 2013
c. BOCC Updates/Checkpoints
November 5, 2013 — Approve legal advertisement for the November 25, 2013
Quarterly Public Hearing.
October 2, 2013 — Planning Board Ordinance Review Committee (ORC) (BOCC
members can read agenda materials)
November 25, 2013 — Quarterly Public Hearing
January 23, 2014 - Receive Planning Board recommendation.
d. Other
2. PUBLIC INVOLVEMENT PROGRAM
Mission/Scope: Public Hearing process consistent with NC State Statutes and
Orange County ordinance requirements
a. Planning Board Review:
October 2, 2013 - Ordinance Review Committee (ORC).
This item was reviewed at the October 2, 2013 ORC meeting where there
were no comments from Board members.
December 4, 2013 — Recommendation
b. Advisory Boards-
3
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c. Local Government Review:
d. Notice Requirements
Legal advertisement will be published in accordance with the provisions of the
UDO.
e. Outreach:
❑ General Public:
❑ Small Area Plan Workgroup:
❑ Other:
3. FISCAL IMPACT
Modification of existing language will not require the outlay of additional funds by the
County. Processing of the amendment shall be handled by staff utilizing existing
budgeted funds.
Costs of mailings and/or legal notices shall continue to be offset by application fees
for various projects acted upon by the BOA.
D. AMENDMENT IMPLICATIONS
Language within the UDO will be consistent with recent modifications to State law.
E. SPECIFIC AMENDMENT LANGUAGE
Please refer to Attachment 3.
Primary Staff Contact:
Michael D. Harvey
Planning
(919) 245-2597
mharvey @orangecountync.gov
4
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Attachment 2 93
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2013
SESSION LAW 2013-126
HOUSE BILL 276
AN ACT TO CLARIFY AND MODERNIZE STATUTES REGARDING ZONING BOARDS
OF ADJUSTMENT.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 160A-388 reads as rewritten:
"§ 160A-388. Board of adjustment.
(a) Composition and Duties. — The eity eettfleil—zoning or unified development
ordinance may provide for the appointment and compensation of a board of adjustment
consisting of five or more members, each to be appointed for three years. In appointing the
original m,,m, efs of stte . b,.af , members or in the filling of vacancies caused by the expiration
of the terms of existing members, the cif council may appoint certain members for less than
three years tad so that ef-the terms of all members shall not expire at the same
time. The council may, i1i 48 E i8efeti6fl., may appoint and provide compensation for alternate
members to serve on the board in the absence or temporary disqualification of any regular
member or to fill a vacancy pending appointment of a member. Alternate members shall be
appointed for the same term, at the same time, and in the same manner as regular members.
Each alternate
member serving on behalf of any regular member has all
the powers and duties of a regular member. The ordinance may designate a planning
board or governing board to perform any et: all the duties of a board of adjustment in
addition to its other des-duties and may create and designate specialized boards to hear
technical appeals.
al Provisions of Ordinance. — The zoning or unified development ordinance may
provide that the board of adjustment hear and decide special and conditional use permits,
requests for variances, and appeals of decisions of administrative officials charged with
enforcement of the ordinance. As used in this section, the term "decision" includes any final
and binding order, requirement, or determination. The board of adjustment shall follow
quasi-judicial procedures when deciding appeals and requests for variances and special and
conditional use permits. The board shall hear and decide all matters upon which it is required to
pass under any statute or ordinance that regulates land use or development.
a2 Notice of Hearing. — Notice of hearings conducted pursuant to this section shall be
mailed to the person or entity whose appeal, application, or request is the subject of the hearin&
to the owner of the property that is the subject of the hearing if the owner did not initiate the
hearing, to the owners of all parcels of land abutting the parcel of land that is the subject of the
hearing, and to any other persons entitled to receive notice as provided by the zoning or unified
development ordinance. In the absence of evidence to the contrary, the city may rely on the
county tax listing to determine owners of property entitled to mailed notice. The notice must be
deposited in the mail at least 10 days, but not more than 25 days, prior to the date of the
hearing. Within that same time period, the city shall also prominently post a notice of the
hearing on the site that is the subject of the hearing or on an adjacent street or highway
right-of-way_
(b)
III 11 111111111111111 1 Return t6 hda
* H 2 7 6 - V - 6 *
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appealed fFemwas taken. An appeal stays all pt:eeeedifigs in fitt4hetunee of t4e aetion appea
aftet: fietiee of appeal has been filed w44 him, t4at beeattse of faets stated ifl the eel4ifieat
t e appeal is-taken.
Appeals. - The board of adjustment shall hear and decide meals decisions of
administrative officials charged with enforcement of the zoning or unified development
ordinance and may hear meals arising out of any other ordinance that regulates land use or
development,pursuant to all of the following_
Any person who has standing under G.S. 160A-393(d) or the city may
appeal a decision to the board of adjustment. An meal is taken by filing a
notice of meal with the city clerk. The notice of meal shall state the
grounds for the meal.
The official who made the decision shall give written notice to the owner of
the property that is the subject of the decision and to the party who sought
the decision, if different from the owner. The written notice shall be
delivered by personal delivery, electronic mail, or by first-class mail.
The owner or other party shall have 30 days from receipt of the written
notice within which to file an meal. Any other person with standing to
appeal shall have 30 days from receipt from any source of actual or
constructive notice of the decision within which to file an meal.
It shall be conclusively presumed that all persons with standing to meal
have constructive notice of the decision from the date a sign containing the
words "Zoning Decision" or "Subdivision Decision" in letters at least six
inches high and identifying the means to contact an official for information
about the decision is prominently-posted on the property that is the subject of
the decision, provided the sign remains on the property for at least 10 days.
Posting of signs is not the only form of constructive notice. Any such
posting shall be the responsibility of the landowner or aplicant. Verification
of the posting shall be provided to the official who made the decision.
Absent an ordinance provision to the contrary, posting of signs shall not be
required.
The official who made the decision shall transmit to the board all documents
and exhibits constituting the record upon which the action apealed from is
taken. The official shall also provide a copy of the record to the apellant
and to the owner of the property that is the subject of the meal if the
appellant is not the owner.
An meal of a notice of violation or other enforcement order stays
enforcement of the action apealed from unless the official who made the
decision certifies to the board of adjustment after notice of meal has been
filed that because of the facts stated in an affidavit, a stay would cause
imminent peril to life or property or because the violation is transitory in
nature, a stay would seriously interfere with enforcement of the ordinance.
In that case, enforcement proceedings shall not be stayed except by a
restraining order, which may be granted by a court. If enforcement
proceedings are not stayed, the apellant may file with the official a request
for an expedited hearing of the meal, and the board of adjustment shall
Page 2 Session Law 2013-126 SL201 `� �'
95
meet to hear the appeal within 15 days after such a request is filed.
Notwithstanding the fore _going, appeals of decisions_ granting a permit or
otherwise affirming that a proposed use of property is consistent with the
ordinance shall not stay the further review of an application for permits or
permissions to use such property, in these situations the appellant may
request and the board may grant a stay of a final decision of permit
applications or building permits affected by the issue being appealed.
(77,) Subject to the provisions of subdivision (6) of this subsection, the board of
adjustment shall hear and decide the meal within a reasonable time.
The official who made the decision shall be present at the hearing as a
witness. The appellant shall not be limited at the hearing to matters stated in
the notice of appeal. If any party or the city would be unduly_prejudiced by
the presentation of matters not presented in the notice of meal, the board
shall continue the hearing. The board of adjustment may reverse or affirm,
wholly or partly, or may modify the decision appealed from and shall make
any order, requirement, decision, or determination that ought to be made.
The board shall have all the powers of the official who made the decision.
(99,) When hearing an meal pursuant to G.S. 160A-400.9(e) or any other meal
in the nature of certiorari, the hearing shall be based on the record below and
the scope of review shall be as provided in G.S. 160A-393(k).
10 The parties to an meal that has been made under this subsection may agree
to mediation or other forms of alternative dispute resolution. The ordinance
may set standards and procedures to facilitate and manage such voluntary
alternative dispute resolution.
(c) Special and Conditional Use Permits. - The zoning ordinance may provide that the
board of adjustment may PewsPesilexeeptiento toe zoning zeglatie esified-
vat:ia-nees i e 11 ad„s°s and*4a* d may-tt�hear and decide special and conditional
use pefmits, all to b, pR its in accordance with t4e pt:ifieiples, eenditiens, sRfepat: '
standards and procedures specified in the ordinance. Reasonable and appropriate conditions
may be imposed upon these permits.T-he ,,..a;,,,nee m also ,,,Aot:ize toe boat:d to iN*°fpr°*
(d) Variances. - When pt:aetieal di ffiettities or unnecessary hardships would result from
carrying out the strict letter of a zoning ordinance, the board of adjustment shall have toe pov,°r
wary e�odify any of the r° alai, ns of toe ,,..a;,,,nee t4at provisions of the
ordinance upon a showing of all of the following
(1) Unnecessary 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_
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 the general public, may not be the basis for
granting a variance.
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.
The requested variance is consistent with the spifitspirit, purpose, and intent
of the efdifianee shall be obse ,°a, ordinance, such that public safety and
,v,el f e s°,.,,..°a safety is secured, and substantial justice his achieved.
No change in permitted uses may be authorized by variance. mate-eenditiens;Leh
v,fia-n°° may be imposed o n any appfoval isstted by toe b,,af Appropriate conditions may be
imposed on any variance, provided that the conditions are reasonably related to the variance.
Any other ordinance that regulates land use or development may provide for variances
consistent with the provisions of this subsection.
SL2013-126 Session Law 2013-126 1 `� �'
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(e) Voting
The concurring vote of four-fifths of�nem of the board shall be
necessary to reyet:se any ^"aec�e"it:emefit, decision,-et: deteffflinirtion of
any administrative e=ieial eh-at:ge , ,it>, toe exfet:eeinex* of an et:d,iafiee
adopted pttre t-to-t4is Pat4, et: to dee .ae in f of t o plieant-a*r,
matter en v�ieh it is ze"ired to pass tm ,,,.a;, anee, of to grant-a
vase° f e toe r s of toe ^rdifia ee—grant a variance. A majority
of the members shall be required to decide any other quasi-judicial matter or
to determine an meal made in the nature of certiorari. For the purposes of
this subsection, vacant positions on the board and members who are
disqualified from voting on a quasi-judicial matter shall not be considered
"membet:s of toe >,,,at4 members of the board for calculation of the requisite
majority if there are no qualified alternates available to take
the place of such members.
(el) A member of the board or any other body exercising quasi-judicial functions
pursuant to this Article shall not participate in or vote on any quasi-judicial matter in a manner
that would violate affected persons' constitutional rights to an impartial decision maker.
Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior
to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a
close familial, business, or other associational relationship with an affected person, or a
financial interest in the outcome of the matter. If an objection is raised to a member's
participation and that member does not recuse himself or herself, the remaining members shall
by majority vote rule on the objection.
(e2) Quasi-Judicial Decisions and Judicial Review. -
The board shall determine contested facts and make its decision within a
reasonable time. Every quasi-judicial decision shall be based upon
competent, material, and substantial evidence in the record. Each
quasi-judicial decision shall be reduced to writing and reflect the board's
determination of contested facts and their aplication to the aplicable
standards. The written decision shall be signed by the chair or other duly
authorized member of the board. A quasi-judicial decision is effective upon
filing the written decision with the clerk to the board or such other office or
official as the ordinance specifies. The decision of the board shall be
delivered by personal delivery, electronic mail, or by first-class mail to the
applicant, property owner, and to any person who has submitted a written
request for a copy, prior to the date the decision becomes effective. The
person required to provide notice shall certify that proper notice has been
made.
Every quasi-judicial decision of the >,oat:a shall be subject to review by the
superior court by proceedings in the nature of certiorari
pursuant to G.S. 160A-393. A petition for review by toe s"el et: ^^tt4 shall
be filed with the clerk of superior court v�,44i by the later of 30 days after
the decision of t4e beat:d is filed in stteh offiee as the et4inaflse speeifes-, is
effective or after a written copy thereof is given in accordance with
subdivision (1) of this subsection. When first-class mail is used to deliver
notice, three days shall be added to the time to file the delivet:ed to
evetzy oa rata. ,,�e has filed Fitter r est f r s e ,4 the
seet:etat:y et:teh. of toe i eat:d-at toe time of its t, g of the ease,
�ieheyetis-lat°c he deeisio,, of toe beat:d may be delivered to
,;t ,-ot,,..,, , ,mot-equested.
(f) Oaths. -The ehaifman chair of the board of„a:,,stm° or any member tempet:at4ly
acting as chair and the clerk to the board areis authorized in his o ffie a ,.,,raeit„ to
administer oaths to witnesses in any matter coming before the board. Any person who, while
under oath during a proceeding before the board of adjustment, willfully swears falsely is guilty
of a Class 1 misdemeanor.
(g) Subpoenas. - The board of adjustment through the chair, or in the chair's
absence anyone acting as chair, may subpoena witnesses and compel the production of
evidence. To request issuance of a subpoena, persons with standing under G.S. 160A-393(d)
Page 4 Session Law 2013-126 SL201ttrr� �'
97
may 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 he or she determines to be
relevant, reasonable in nature and scope, and not oppressive. 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 of adjustment. 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 erdel: subpoena be obeyed,
and the court shall have jurisdiction to issue these orders after notice to all proper parties.-Fe
SECTION 2.(a) G.S. 160A-388(el) is recodified as G.S. 160A-388(e)(2).
SECTION 2.(b) G.S. 160A-388(e)(2), as recodified by Section 2(a) of this act,
reads as rewritten:
"(2) A member of 4w--Aay_board of any et4ef body exercising quasi-judicial
functions pursuant to this Article shall not participate in or vote on any
quasi-judicial matter in a manner that would violate affected persons'
constitutional rights to an impartial decision maker. Impermissible e0fliqiets
violations of due process include, but are not limited to, a member having a
fixed opinion prior to hearing the matter that is not susceptible to change,
undisclosed ex parte communications, a close familial, business, or other
associational relationship with an affected person, or a financial interest in
the outcome of the matter. If an objection is raised to a member's
participation and that member does not recuse himself or herself, the
remaining members shall by majority vote rule on the objection."
SECTION 3.(a) G.S. 153A-345 is repealed except that any local modification to
that section in effect on September 30, 2013, shall be treated as a local modification to
G.S. 160A-388 from October 1, 2013, through June 30, 2015.
SECTION 3.(b) Article 18 of Chapter 153A of the General Statutes is amended by
adding a new section to read:
153A-345.1. Board of adiustment.
(aa,) The provisions of G.S. 160A-388 are applicable to counties.
(b,) For the purposes of this section, as used in G.S. 160A-388, the term "city council" is
deemed to refer to the board of county commissioners, and the terms "city" or "municipality"
are deemed to refer to the county.
(c,) If a board of county commissioners does not zone the entire territorial jurisdiction of
the county, each designated zoning area shall, if practicable, have at least one resident as a
member of the board of adjustment; otherwise, the provisions of G.S. 153A-25 regarding
qualifications for appointive office shall apply to board of adjustment appointments."
SECTION 4. G.S. 160A-381(c)reads as rewritten:
"(c) The regulations may also provide that the board of adjustment, the planning board,
or the city council may issue special use permits or conditional use permits in the classes of
cases or situations and in accordance with the principles, conditions, safeguards, and
procedures specified therein and may impose reasonable and appropriate conditions and
safeguards upon these permits. When deciding special use permits or conditional use permits,
the city council or planning board shall follow quasi-judicial procedures. Notice of hearings on
special or conditional use permit applications shall be as provided in G.S. 160A-388(a2). No
vote greater than a majority vote shall be required for the city council or planning board to
issue such permits. For the purposes of this section, vacant positions on the board and members
who are disqualified from voting on a quasi-judicial matter shall not be considered "members
of the board" for calculation of the requisite majority. Every such decision of the city council or
planning board shall be subject to review of the superior court in the nature of certiorari in
accordance with G.S. 160A-388.
Where appropriate, such conditions may include requirements that street and utility
rights-of-way be dedicated to the public and that provision be made of recreational space and
facilities."
SECTION 5. G.S. 153A-340(cl)reads as rewritten:
SL2013-126 Session Law 2013-126 1 `� �'
98
"(cl) The regulations may also provide that the board of adjustment, the planning board,
or the board of commissioners may issue special use permits or conditional use permits in the
classes of cases or situations and in accordance with the principles, conditions, safeguards, and
procedures specified therein and may impose reasonable and appropriate conditions and
safeguards upon these permits. Where appropriate, the conditions may include requirements
that street and utility rights-of-way be dedicated to the public and that recreational space be
provided. When deciding special use permits or conditional use permits, the board of county
commissioners or planning board shall follow quasi-judicial procedures. Notice of hearings on
special or conditional use permit aplications shall be as provided in G.S. 160A-388(a2). No
vote greater than a majority vote shall be required for the board of county commissioners or
planning board to issue such permits. For the purposes of this section, vacant positions on the
board and members who are disqualified from voting on a quasi-judicial matter shall not be
considered "members of the board" for calculation of the requisite majority. Every such
decision of the board of county commissioners or planning board shall be subject to review of
the superior court in the nature of certiorari consistent with G.S. 153A-345."
SECTION 6. G.S. 153A-44 reads as rewritten:
"§ 153A-44. Members excused from voting.
The board may excuse a member from voting, but only upon questions involving the
member's own financial interest or official conduct or on matters on which the member is
prohibited from voting under G.S. 14-234, 153A-340(g), or 153A 3^- el- 6I A-388(e)(2).
For purposes of this section, the question of the compensation and allowances of members of
the board does not involve a member's own financial interest or official conduct."
SECTION 7. G.S. 153A-336(a)reads as rewritten:
"(a) When a subdivision ordinance adopted under this Part provides that the decision
whether to approve or deny a preliminary or final subdivision plat is to be made by a board of
commissioners or a planning board, other than a planning board comprised solely of members
of a county planning staff, and the ordinance authorizes the board of commissioners or
planning board to make a quasi-judicial decision in deciding whether to approve the
subdivision plat, then that quasi-judicial decision of the board of commissioners or planning
board shall be subject to review by the superior court by proceedings in the nature of certiorari.
The provisions of G.S. 153A-340(f), 153A 345(e4,160A-388(e2�(21, and 153A-349 shall
apply to those appeals."
SECTION 8. G.S. 153A-340(cl)reads as rewritten:
"(cl) The regulations may also provide that the board of adjustment, the planning board,
or the board of commissioners may issue special use permits or conditional use permits in the
classes of cases or situations and in accordance with the principles, conditions, safeguards, and
procedures specified therein and may impose reasonable and appropriate conditions and
safeguards upon these permits. Where appropriate, the conditions may include requirements
that street and utility rights-of-way be dedicated to the public and that recreational space be
provided. When deciding special use permits or conditional use permits, the board of county
commissioners or planning board shall follow quasi-judicial procedures. No vote greater than a
majority vote shall be required for the board of county commissioners or planning board to
issue such permits. For the purposes of this section, vacant positions on the board and members
who are disqualified from voting on a quasi-judicial matter shall not be considered "members
of the board" for calculation of the requisite majority. Every such decision of the board of
county commissioners or planning board shall be subject to review of the superior court in the
nature of certiorari consistent with G.S.153A G.S. 160A-388."
SECTION 9. G.S. 153A-349(c)is repealed.
SECTION 10. G.S. 153A-349.8(c) reads as rewritten:
"(c) If the developer fails to cure the material breach within the time given, then the local
government unilaterally may terminate or modify the development agreement; provided, the
notice of termination or modification may be appealed to the board of adjustment in the manner
provided by G.S. 153 }G.S. 160A-388(bl)."
SECTION 11. G.S. 160A-75 reads as rewritten:
"§ 160A-75. Voting.
No member shall be excused from voting except upon matters involving the consideration
of the member's own financial interest or official conduct or on matters on which the member is
prohibited from voting under G.S. 14-234, 160A-381(d), or 160A 388(el 160A-388(e)(2). In
all other cases, a failure to vote by a member who is physically present in the council chamber,
Page 6 Session Law 2013-126 SL201 `� �'
99
or who has withdrawn without being excused by a majority vote of the remaining members
present, shall be recorded as an affirmative vote. The question of the compensation and
allowances of members of the council is not a matter involving a member's own financial
interest or official conduct.
An affirmative vote equal to a majority of all the members of the council not excused from
voting on the question in issue, including the mayor's vote in case of an equal division, shall be
required to adopt an ordinance, take any action having the effect of an ordinance, authorize or
commit the expenditure of public funds, or make, ratify, or authorize any contract on behalf of
the city. In addition, no ordinance nor any action having the effect of any ordinance may be
finally adopted on the date on which it is introduced except by an affirmative vote equal to or
greater than two thirds of all the actual membership of the council, excluding vacant seats and
not including the mayor unless the mayor has the right to vote on all questions before the
council. For purposes of this section, an ordinance shall be deemed to have been introduced on
the date the subject matter is first voted on by the council."
SECTION 12. G.S. 160A-377(a)reads as rewritten:
"(a) When a subdivision ordinance adopted under this Part provides that the decision
whether to approve or deny a preliminary or final subdivision plat is to be made by a city
council or a planning board, other than a planning board comprised solely of members of a city
planning staff, and the ordinance authorizes the council or planning board to make a
quasi-judicial decision in deciding whether to approve the subdivision plat, then that
quasi-judicial decision of the council or planning board shall be subject to review by the
superior court by proceedings in the nature of certiorari. The provisions of G.S. 160A-381(c),
160A 388(e2) 160A-388(e2)(2), and 160A-393 shall apply to those appeals."
SECTION 13. G.S. 160A-393(c)(3)reads as rewritten:
"(3) Set forth with particularity the allegations and facts, if any, in support of
allegations that, as the result of impermissible conflict as described in
160A 388(e *G.S. 160A-388(e)(2), or locally adopted conflict rules,
the decision-making body was not sufficiently impartial to comply with due
process principles."
SECTION 14. G.S. 160A-3930)(2)reads as rewritten:
"(2) Whether, as a result of impermissible conflict as described in
160A 388(e *G.S. 160A-388(e)(2), or locally adopted conflict rules,
the decision-making body was not sufficiently impartial to comply with due
process principles."
SECTION 15. This act becomes effective October 1, 2013, and applies to actions
taken on or after that date by any board of adjustment.
In the General Assembly read three times and ratified this the 10 ' day of June,
2013.
s/ Daniel J. Forest
President of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Pat McCrory
Governor
Approved 4:20 p.m. this 19th day of June, 2013
SL2013-126 Session Law 2013-126 1 `� �'
100
ATTACHMENT 3
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 Stfikethfettgh 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:
htip: / /oran eg countync .gov/planning /Ordinances.asp
Return to Agenda
Article 2: Procedures 101
Section 2.10: Variances
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 requirements licable to
the specific CZD district and all approved conditions.
The applicant shall comply with all requirements established !,Vlhe CZD
Ordinance. Only those uses and structures included in the ZD Ordinance and
improved site plan shall be allowed on the subject prope
(H) Zoning Atl \sll n
Following aCZD district by the Board of Co ty Commissioners, the
subject proentified on the Zoning Atlas y the appropria te district
designation(1) Alterations ed CZD
(1) Except as provided Section 6.7.2 r MPD -CZ projects, changes to approved
plans and conditions o evelop nit shall be treated as changes to the zoning
atlas and shall be proces d a an amendment to such as contained in this
Article.
(2) The Planning ^Planni pp ve minor changes without going through the
amendment panni Director, at his /her discretion, may elect not
to allow a ny pinor cha e and will forward the detailed application
for changes to oard and oard of County Commissioners for
consideration with the proc ures outlined herein.
/Hearing nge is one that will not:
ter the basic relationship of the propose development to adjacent
operty,
ter the approved land uses,
rease the density or intensity of development, an or
crease the off - street parking ratio or reduce the buffe ards 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 Amendm t in
Section 2.8.6. Notice of the public hearing shall follow the procedures in Section 2.8.7.
SECTION 1
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 prastieal
d+ltiess. 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,
Language is recommended for deletion in order to be consistent with recent modificaitons to State law.
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Article 2: Procedures 102
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 where p4:, at
d ities- sFunnecessary 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 annlinant and ore net suffered in nnmmnn with other proem y similarly
logAtAdU n necessary 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.
Nil
{G;(B) The hardship results from conditions that are preculiar to the property, such as location,
size, or topography. Hardships resulting from personal circumstances, as well as
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 VaFiaRG8, if appFe yerl will net substantially interfere with n
njuFe the Fights of otheFs whose pmper-ty would be affeGted by approval of the VaFIaRG8.
MI. ice\ The �yo rionne is in hormnn�y with onrJ ser�yes the nenerol intent onrJ ni �rnnse of this
�° /,v, 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 iustify the granting of a variance shall not
be regarded as a self- created hardship.
TEL
will he si �fferey^I by o foil ire of the Rnoryi of ArJii Istment to grant a -yarianneThe 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 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.
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Article 2: Procedures 103
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 :4
(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.
4 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.
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Article 2: Procedures 104
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.
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Article 2: Procedures 105
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.
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Article 2: Procedures 106
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.
(B) 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.
(C) 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.
(D) 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.
(E) 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.
(F) 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
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Article 2: Procedures 107
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
GIGAR 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.
2.11.1 Generally
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 Stay on Further Proceedings
(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.
s Staff is recon-unending existing language referencing `public health, safety, general welfare' as well as `substantial
justice' be deleted as this wording does not appear in the Statute.
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Article 2: Procedures 108
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 deteFFnines certifies to the Board of Adjustment in
an affidavidt either:
(1) That in the opinion of the Planning Direntnr a stay would pause imminent peril to
life andipr pmpeFt. 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.)(C) In either instance, the Planning Director shall place in the determination facts to support
the conclusion if (B)(1) and /or (B)(2) are invoked.
ip(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 Findings 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 Requirements
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.
6 Staff is adding new language consistent with changes in State law.
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Article 2: Procedures 109
Section 2.12: Board of Adjustment
2.12.2 Quasi - Judicial Proceedi
(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 Testimony
(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 request 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.
MLI 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.
{3)(5) 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 L( 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:.
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Article 2: Procedures 110
Section 2.13: Exempt Subdivisions
(C) A majority 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. 9
(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 placed in
a newspaper of general circulation in Orange County. The notice shall appear once a
week for two consecutive weeks, the first insertion to be not less than ten days nor more
than 25 days prior to the meeting date. In computing the notice period, the day of
publication is not to be included, but the day of the hearing is to be included.
(B) In the case of application for a Class B Special Use permit or variance the Planning
Director shall give written notice by certified mail to adjacent property owners. This
notice shall be given not less than 15 days prior to the meeting date. Adjacent property
owners are those whose property lies within 500 feet of the affected property and whom
are currently listed as property owners in the Orange County tax records.
(C) The Planning Director shall post on the affected property a notice of the Board meeting at
least ten days prior to the meeting date.
(D) In the case of an appeal of a Stop Work Order issued by the Planning Director, the
Planning Director shall give written notice by certified mail to the property owner, and /or
person(s) engaged in the alleged violation. Notification of adjacent property owners,
posting of property, and publication of a hearing notice is not required.
2.13.1 General
(A) Persons proposing d and that st itute a subdivision must request a
determina n pt subdivision status with the Director. Activities that
constitute a sion are found in Section 7.2.1.
Simple majority vote is now all that is necessary to approve a SUP or act on an appeal.
s 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.
9 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.
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Article 2: Procedures 111
Section 2.25: Appeals
Public Hearing Required
(1) The EIS, along with all comments received during the review period, all be
presented for public hearing concurrently with the development pr ect.
(2) If a public hearing before the Board of County Commissioner s not required for
approval of the development project, then a special heari shall be scheduled.
hearing shall take place no later than 30 days after e close of the public
revi period or receipt of comments from the State learinghouse, whichever is
later.
(C) Notice of Public He ing
(1) Notice of the pub i hearing to review th IS and receive public comment shall
be published at leas ice in a news per of general circulation in the county,
stating the time and pI e of the h ring.
(2) Said notice shall appear in ' newspaper for two successive weeks with the
first notice appearing not le n ten nor more than 25 days before the date set
for the public hearing. I omputi the notice period, the day of publication is
not to be included, b he day of the Baring is to be included.
(D) Board of County Com i sioners Action
(1) The Board o ounty Commissioners shall rec 've the EIS and all comments as
informati only. The information presented may used only to determine
compl' ce with specific development standards est Iished in this Ordinance.
(2) N action shall be taken on the development project unti er the EIS has been
resented to the Board of County Commissioners.
(E) Ef ct on Other Permits and Actions
Construction or installation of any major development project shall not comm e e until
subsequent to the filing of a Finding of No Significant Impact or acceptance of th final
EIS by the Board of County Commissioners.
212.26.1 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.
222.26.2 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.
10 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.
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Article 2: Procedures 112
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.
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Article 2: Procedures 113
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
pai4yany 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)).
22552.26.5 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 a44)�-any person who
has standing as detailed within NCGS 160A -393 (d) agg4e _- ^°r +„ 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.
22572.26.7 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.
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(A)
(B)
(C)
(D)
Article 2: Procedures 114
Section 2.26: Appeals
Soil Erosion and Sedimentation Control
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.
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.
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 413.0118.
Appeal of Erosion Control Plan if Disapproval Based on Applicant's Past
Performance
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Article 2: Procedures 115
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.
22592.26.9 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-.2-g-.142.26.10 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-.2-g-.142.26.11 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.
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