BOARD OF ADJUSTMENT WORKSHOP APRIL 11, 2014

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1 BOARD OF ADJUSTMENT WORKSHOP APRIL 11, 2014 NC Department of Commerce Division of Community Assistance Western Regional Office Western Carolina University Department of Political Science Local Government Training Program NC Division of Community Assistance Contact Information NC Department of Commerce Division of Community Assistance Western Regional Office 31 College Place, Building B Asheville, NC Phone: Fax: ksmith@nccommerce.com (Karen Smith) vfaust@nccommerce.com (Ginny Faust) rhancock@nccommerce.com (Ron Hancock) kcarter@nccommerce.com (Kristy Carter) Web: assistance/communityplanning/regional office services/western 1

2 Local Government Training Program Contact Information Vickey Wade, Director, LGTP Department of Political Science and Public Affairs Western Carolina University Cullowhee, NC Phone: (NC Only) Fax: Web: With thanks to: UNC-Chapel Hill School of Government Faculty Richard D. Ducker Associate Professor of Public Law and Government Adam Lovelady Assistant Professor of Public Administration and Government David W. Owens Gladys Hall Coates Professor of Public Law and Government Knapp-Sanders Building Campus Box 3330 UNC-Chapel Hill, Chapel Hill, NC Phone: Fax: Web: 2

3 Today s Program 5 Board of Adjustment Functions Types of Cases & Standards for Review Quasi-judicial Hearing Procedures Variance Scenario Lunch Group Discussion on Variance Scenario Adam Lovelady Various Topics Questions and Answers 6 Board of Adjustment Functions 3

4 Board of Adjustment Functions 7 Statutory Authority Government Roles in Zoning Legislative vs. Quasi-judicial Decisions Board of Adjustment Duties Board of Adjustment Statutory Authority 8 Cities/Towns North Carolina General Statutes, Chapter 160A, Article 19 - Planning & Regulation of Development, Part 3 Zoning, 160A Board of Adjustment Counties North Carolina General Statutes, Chapter 153A, Article 18 - Planning & Regulation of Development, Part 3 Zoning, 153A Board of Adjustment 4

5 Government Roles in Zoning 9 Participants Governing Board Primary Role Legislative Planning Board Advisory Board of Adjustment Quasi-judicial Staff Administrative Quasi-judicial Decision What is it? 10 NCGS 160A-393, Appeals in the Nature of Certiorari, defines a quasi-judicial decision as: A decision involving the finding of facts regarding a specific application of an ordinance and the exercise of discretion when applying the standards of the ordinance. Quasi-judicial decisions include decisions involving variances, conditional and special use permits, and appeals of administrative determinations. 5

6 Legislative vs. Quasi-judicial Decisions 11 Differences related to: Notice of hearing Type of hearing Speakers at hearing Evidence Findings Standards for decisions Conditions Time to initiate judicial review Conflicts of interest Board of Adjustment Duties 12 Primary Role / Decisions: Quasi-judicial Hear appeals of zoning decisions Consider variances from ordinance standards May review conditional/special use permits May hear appeals and/or variances under other ordinances (Water Supply Watershed, Historic Preservation, Minimum Housing, etc.) Other Roles / Decisions: Advisory May recommend ordinance review/amendments May have other assigned duties 6

7 TYPES OF CASES & STANDARDS FOR REVIEW 14 The Perfect Zoning Ordinance 7

8 Never needs to change The Asheville City Plan, Addresses every possible situation 16 8

9 Is easy for officials to administer 17 Keeps all constituents happy, all of the time 18 9

10 19 Why Have a Board of Adjustment? Zoning ordinances change over time Interpretations Communication with planning and governing boards Zoning ordinances can t address everything Variances Conditional use permits Not every decision is clear or made correctly Interpretations Appeals The board of adjustment provides citizens with due process Without the BOA 20 Zoning Dispute LOCAL GOVERNING BOARD Request for a change of zone Request for an ordinance amendment COURTS Suit Writ of Mandamus 10

11 Types of Cases 21 Appeals Conditional (or Special) Use Permits Variances Other Duties Recommend zoning ordinance review/amendments May hear appeals and/or variances under other ordinances Other duties as assigned by governing board Changes to BOA Statutes 22 HB 276 An Act To Clarify and Modernize Statutes Regarding Zoning Boards of Adjustment Applies to all quasi-judicial decisions made on or after October 1, 2013, regardless of which Board is taking action (i.e. BOA, Planning Board, Governing Board) Minor changes: clarify and modernize wording; improve organization 11

12 Changes to BOA Statutes 23 Made major changes regarding: Variances Voting Appeals of staff decisions Quasi-judicial hearing procedures: Uniform requirements for mail and posted notice Hearing process (standards for subpoenas) When decisions effective; clarifies how documented 24 Appeals 12

13 Interpretation: What is it? 25 Wording, meaning, and intent of an ordinance. Applied to the facts of a case. Appeal Example 26 The petitioner is challenging a recent staff decision that identified a proposed business use as an Animal Shelter which is not listed as a permitted use in the CZ-1 zoning districts. The petitioner is, argues that Shelters are indeed allowed in the CZ-1 zoning district and his animal shelter should therefore be allowed. 13

14 Appeals of Staff Decisions 27 Need an official staff determination. Procedural concerns (staff). Appellant must have standing. Each case is considered on its own merits. Interpretations may establish precedents. Advisory opinions cannot be given. The more gray areas an ordinance includes, the more interpretations will be needed. Appeals of Staff Decisions 28 Voting: Simple Majority Interpretation Handout: 14

15 29 Conditional Use Permits The Name Game 30 Conditional Use Permit (CUP) = Special Use Permit (SUP) = They are the same thing. 15

16 CUP What is it? 31 Ordinance says yes to the use, but only if conditions are met. In other words, the use is not permitted by right. It is common for governing boards to issue CUPs. Process remains the same. Simple majority vote. EXAMPLE Burke County Communication Towers In allowed districts, communication towers of 75 feet or more require that a Conditional Use Permit be granted by the Board of Adjustment. CUP Standards for Review 32 Two Types of Standards for Review in the Zoning Ordinance GENERAL SPECIFIC Apply to all cases seeking a CUP. Apply to specific cases seeking a CUP, as written in the zoning ordinance. Allows for discretion. Examples: Lot sizes, buffering, landscaping, setbacks, signage, parking, ingress/egress. 16

17 33 Common Themes CUP Standards for Review Protects public health, safety, and welfare. Ensures that standards in the ordinance are met. The value of adjoining or abutting property is not substantially injured. The use is a public necessity. The location and character of the use is in harmony with the area. Findings Required: City of Shelby 34 Specific Standards 1. The property is within the zoning jurisdiction of the City of Shelby, and 2. The application is complete, and 3. The proposed use complies with all of the requirements of the zoning ordinance, and General Standards 4. The use will not materially endanger the public health or safety, and 5. The use will not substantially injure the value of adjoining or abutting property, and 6. The use will be in harmony with the area in which it is to be located, and 7. The use will be in general conformity with the land development plan and other plans officially adopted by the city council. 17

18 Stanley County Standards 35 General Standards A. Maintain or enhance the public health, safety and general welfare if located where proposed, and developed and operated according to the plan submitted; B. Maintain or enhance the value of contiguous property (unless the use is a public necessity, in which case the use need not do so); (certified appraisal etc ) C. Assure the adequacy of : (attach supporting documents as needed) a) Sewerage disposal facilities, b) Solid waste and water, c) Police, fire and rescue squad protection, d) Transportation systems, within and around the site; and, Predefined (Specific) Standards See each individual conditional use listed in Section 650 of the Stanly County Zoning Ordinance CUP Salvage Yard 18

19 CUP Standards - Salvage Yard 37 Application is complete. The proposed use is among those listed in the Table of Permissible Uses as a conditional use. The conditions proposed meet or exceed the minimum requirements of this ordinance. The conditional use will not endanger the public health or safety. The conditional use will not injure the value of adjoining or abutting property and will be in harmony with the area in which it is located. The conditional use will be in conformity with the Land Use Plan and other officially adopted plans. The conditional use will not exceed the county s ability to provide adequate public facilities. 38 The conditional use will not endanger the public health or safety. The use will not injure the value of adjoining or abutting property and will be in harmony with the area. The conditional use will be in conformity with the Land Use Plan and other officially adopted plans. The conditional use will not exceed the county s ability to provide adequate public facilities. 1. Applicant must secure all state permits necessary for the operation of a salvage yard and must remain in compliance with state and local regulations. 2. There will be no hazardous material, trash, or waste product kept on the site. The adjacent properties are zoned heavy manufacturing and the parcels are located in an established industrial park, so the proposed development should have no negative impact on adjoining property. This request is consistent with officially adopted plans. [Insert appropriate references to address why the request is or is not consistent] The proposed use will not exceed the county's ability to provide adequate public facilities. 19

20 Reasonable and Appropriate Conditions 39 CUP may have conditions placed upon it under the following circumstances. Must be reasonable and appropriate, must relate to testimony. Specific to the development proposal. Allow the board to make the findings that enable the board to grant the permit. A permit may be considered void if one or more of the conditions are not met. Conditions run with the land. Conditions Salvage Yard 40 That the two lots be recombined into one lot. Hazardous waste or trash and waste shall not be stored or disposed of on this site. No portions of the operation, including stockpile material, will be visible from Caratoke Highway to the greatest extent practicable consistent with Land Use Policy CA1 regarding appearance of development along Caratoke Highway. The two driveways shown on 176 Windchaser Way are within nine feet of each other used a section of their UDO for support. No stockpile exceed 25 feet in height. 20

21 41 Variances Variance: What is it? 42 A variance grants relief from the ordinance in cases of hardship - those cases where the rules of the zoning ordinance fail to fit a particular situation. Allows a property owner to make use of his/her property, even though it may conflict with the ordinance. 21

22 Unnecessary Hardships 43 Mismatch Dealing with the Mismatch 44 Unnecessary Hardships Mismatch Apply the Variance Standards to the Situation Yes to the 4 TESTS 22

23 First Test (Standard) Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate no reasonable use can be made of the property. What is unnecessary hardship? Second Test (Standard) Hardship must be peculiar to property. What makes something peculiar? 23

24 Third Test (Standard) The hardship did not result from actions taken by the applicant or the property owner, i.e. selfcreated. What is a self-created hardship? Fourth Test (Standard) The requested variance is consistent with spirit, purpose, intent of ordinance; such that public safety is secured and substantial justice is achieved. What is spirit, purpose, and intent? How do you know public safety is secured and substantial justice is achieved? 24

25 Variance Voting 49 4/5 supermajority Only consider Board members eligible to vote to compute supermajority. 50 Variance Example Zoning Ordinance Dimensional Requirements for R-B Business District Ordinance Standards Actual Dimensions Minimum Lot Size: 20,000 sqft Lot size: 20,100 sqft Minimum Lot Width 100 ft minimum mean lot size Mean lot width 102 sqft Front Setback: Greatest of: --60 ft from center of 19/ ft from edge of right of way Applicable Setback: 60 ft from center of 19/23 Need a variance to go 3 feet into front setback. Rear Setback: 20 feet Rear setback: 20 ft Side Setback: 10 feet Side setback 10 ft Coverage: Not greater that 50% of total lot area Building size: less than 50% of total lot area Other: Height and parking Other: Meets other requirements 25

26 Variance Example - Cont d Ft Rear Setback 10 Ft Side Setback 10 Ft Side Setback Buildable Area 60 Ft Front Setback US HWY 19 / 23 South Variance Guiding Rules & Reminders 52 BOA cannot rewrite the ordinance - may vary the application of the ordinance in a particular case. If an ordinance standard causes hardship throughout the community the BOA should recommend a zoning amendment. Appropriate conditions may be imposed, provided they are reasonably related to variance. Variances can expire if it is a condition or a standard in the ordinance. Variances should not be granted freely. May have variance for any development regulation, consistent with these provisions. 26

27 QUASI-JUDICIAL HEARING PROCEDURES Topics 54 Housekeeping Hearing Notice Subpoenas Conflicts of Interest Collecting Evidence Making Decisions After the Meeting Building a Record 27

28 Housekeeping 55 Bylaws / Rules of Procedure Quorum - majority vs. 4/5ths. Ordinance(s) Be familiar with local ordinance(s). Housekeeping 56 ETJ members Proportional representation Equal rights and privileges? Alternate members ETJ inside and outside members Open meetings law May not deliberate in private 28

29 Hearing Notice 57 Uniform mail and posted notice for all quasi-judicial hearings Mail to owner and abutting owners 10 to 25 days prior to hearing; good idea to include those across a right-of-way Prominently post site (or adjacent street or highway ROW) within same time frame as above No published notice required Not a concern for general public Still must do published notice if required by local ordinance Put verification of notice provided in file Conflicts of Interest 58 Legal right to impartial decision-maker Must avoid actual and perceived conflicts of interest Conflicts addressed in recodified G.S. 160A-388(e)(2) [cities]; 2013 amendments to Statutes repeal county language; 160A-388 now applies to counties Slight change in wording: Impermissible violations of due process Why is this important? Public trust Don t duck responsibility to vote 29

30 Meeting Format 59 Swearing in / administering oaths Only sworn testimony can / should be used in making a decision Oaths can be administered by Chair, anyone acting as Chair, or Clerk to Board (changed 2013) Using scripts and forms Helps citizens understand; you to remember Provides an outline Collecting Evidence 60 Board member packets Ex parte communication All communication outside the presence of the other party Site visits 30

31 Collecting Evidence 61 Standing Who has the right to participate in a hearing? Special damages Additional guidance on standing is in G.S. 160A-393 (same language applies to counties) regarding appeals of quasi-judicial decisions to court. Parties and Witnesses Collecting Evidence 62 Type of evidence Competent, material, and substantial * evidence needed Findings can t be based on conjecture Expert vs. lay person opinion G.S. 160A-393 and G.S. 153A-349 SOG Law Blog What evidence to admit? * 1963 N.C. Supreme Court Case - Jarrell v. Board of Adjustment 31

32 Collecting Evidence 63 Hearsay A statement made outside of a hearing that a party wants to use as evidence. Admissible, but crucial findings cannot be based on hearsay alone. Petitions and affidavits are considered hearsay. Time limits for speakers Can t be used as in other board meetings. Can limit repetitious or irrelevant testimony. Collecting Evidence 64 Cross-examination and rebuttal Parties have right to cross-examine witnesses. Parties also have right to present rebuttal evidence. Burden of proof Applicant/appellant has burden initially. Burden shifts to opponents if applicant demonstrates compliance with specific standards. Exhibits Application, maps and other documentation should be entered into the record and become part of the case file. Exhibits should be identified in minutes. 32

33 Making Decisions 65 Deliberation May close the hearing or leave it open in case board members want to seek clarification of evidence or ask additional questions. Must be done in public per the Open Meetings Law. Vote may occur at the same meeting or at a future meeting. Findings of Fact and Conclusions of Law Board must determine what facts support the findings it must make. Written findings of fact are required; board must document basis for its decision. Board uses the facts to draw conclusions as to whether and how ordinance standards have been met. Making Decisions 66 Finding of Fact Example: The applicant installed the swimming pool and deck in May of 2010 without a permit and located them closer than 10 feet from the property line. 33

34 Making Decisions 67 Conclusion of Law Example: Any hardship suffered by the applicant due to the application of the ordinance is self-imposed because the applicant knew or should have known that the zoning regulations prohibited him from locating the deck within the required setback. Making Decisions 68 Findings of Fact Additional Information Format? Who prepares them? When are they prepared? When does board or board chair approve them? 34

35 Making Decisions 69 Decisions Forms can be helpful in guiding board members through the steps needed to make decisions. Stating specific reasons for decisions is important, particularly in the case of application denials. Making Decisions 70 Decisions Forms can be helpful in guiding board members through the steps needed to make decisions. Stating specific reasons for decisions is important, particularly in the case of application denials. 35

36 Making Decisions 71 Precedents Each case is decided on its own merits. Similar facts should result in similar decisions. Slight differences in facts can yield different decisions. If so, board must explain. Participation in continued hearings Member may miss part of hearing but still vote; good idea to state policy in by-laws. Full access to record required: minutes, exhibits, tape, etc. After the Meeting 72 Complete findings of fact. Prepare a written decision (order). Notify those affected/interested in decision. 36

37 Quasi-judicial Decisions 73 Must be in writing, signed by Chair or other official specified by Ordinance SOG staff advises against using Minutes instead of separate decision document Made in reasonable time (time frame not specified in Statutes) Decision becomes effective when filed with Clerk to Board, or whomever ordinance specifies (date stamp) Quasi-judicial Decisions 74 Delivery of decision to applicant, owner, anyone who submitted written request for copy prior to effective decision date; can also request copy at hearing 1. Personal delivery First class mail (add 3 days to time to file petition for review by superior court) SOG staff favors using both and first class, so there is paper trail (put copy of letter in file) 37

38 Quasi-judicial Decisions 75 The person required to provide notice certifies that proper notice has been made Every decision subject to review by superior court in nature of certiorari pursuant to G.S. 160A days to file for review by superior court Building a Record 76 Complete record required Detailed minutes are necessary. Tape recording not required but may be helpful. The record should: Summarize the facts presented State the findings of fact and conclusions Include the decision, plus the vote recorded by board member name. 38

39 Building a Record 77 If BOA decision appealed, Superior Court must be able to answer the following questions from the record alone: What action was requested of the board (appeal, variance, conditional use permit, etc.)? What sections of the ordinance are relevant? What procedures were followed at the hearing? What evidence was presented or considered? How did the board interpret the ordinance or other matters of law? What was the final decision; on what findings of fact and conclusions did that decision rest? 78 Materials, Tools and Extras For copies of today s training materials: Go to the DCA Training Library website: Scroll down to Board of Adjustment Training Materials, and click on the appropriate training date. 39

40 QUESTIONS? 40

ARTICLE 3. ZONING AND PERMITTING PROCEDURES

SANFORD-BROADWAY-LEE COUNTY UNIFIED DEVELOPMENT ORDINANCE ARTICLE 3. ZONING AND PERMITTING PROCEDURES Summary: This Article describes how to obtain a permit under the Unified Development Ordinance. It