Planning & Development

Functions of the Board of Adjustment

 

 

I.  FUNCTIONS OF THE BOARD OF ADJUSTMENT

 

The purpose of the Board of Adjustment is to act as a safety valve in cases of hardship imposed on individuals by the Zoning Ordinance. If it were possible for the City Council to write a perfect zoning ordinance which would meet the needs of High Point while at the same time avoiding hardship in individual cases, there would be no need for this board. However, since it is impossible to write a zoning ordinance that will work perfectly, the Board of Adjustment is an essential part of the zoning enforcement mechanism.

 

The Board is a "quasi-judicial" administrative body operating on a level between the enforcement officers and the courts. If there were no Board, every appeal from a Building Inspector's denial of permit would have to be taken either to the courts (in the form of a suit for writ of mandamus ordering issuance of a permit) or to the governing body (in the form of a request for a change of zone or other amendment).

 

Statutory Powers and Duties

In the enabling legislation passed by the North Carolina General Assembly which authorizes cities to adopt zoning ordinances, the responsibilities of the Board of Adjustment are set forth as follows:

 

Interpretation

Hear and decide appeals from any decision made by an administrative official, charged with the enforcement of any zoning ordinance.

1. Interpret the zoning maps and pass on disputed district boundary lines. (High Point Zoning Ordinance does not grant this power to the Board).

Variances

Vary or modify provisions of the zoning ordinance where by reason of topographical condition or because of other unusual circumstances the strict application of the ordinance would result in exceptional practical difficulty or undue hardship.

 

Special Exceptions

The Board may permit special exceptions to the zoning regulations. (High Point Zoning Ordinance does not grant this power to the Board.

 

Ordinance Interpretation

This function of the Board involves:

1. Interpreting meaning of parts of the ordinance which are unclear.
2. Applying the ordinance to particular fact situations, and if necessary,
3. Correcting any mistake or abuses of discretion which the Building Inspector may have made in administering the ordinance. In exercising this power, the basic principle for the Board to keep in mind is that it must not vary the ordinance.

Granting "Variances"

A variance is a permit, which the Board may grant in certain situations, allowing a property owner to make use of his property in some way which is in conflict with the literal powers of the zoning ordinance.

 

Required Findings

North Carolina's state enabling act requires the following three findings of facts to be made before a variance is granted:

1. That there are Practical Difficulties or Unnecessary Hardships in the Way of Carrying Out the Strict Letter of the Ordinance.  Courts have developed five general rules to show whether an applicant for a variance has practical difficulties or unnecessary hardships as follows:
   1. that if he complies with the provisions of the ordinance, he can receive no reasonable return from, or make no reasonable use of, his property;
   2. that the hardship results from the application of the ordinance to his property;
   3. that the hardship of which he complains is suffered by his property directly, and not merely by others;
   4. that the hardship is not the result of his own actions, and,
   5. that the hardship is peculiar to the property of the applicant.
      The burden of proving these conditions exist is on the applicant.
      
      
2. That the Variance Is in Harmony With the General Purposes and Intent of the Ordinance and Preserves Its Spirit.

The Board is required by statute to make a finding that the variance is "in harmony with the general purpose and intent" of the ordinance and that it preserves its "spirit".

 

The usual cases in which courts have held that a variance is in conflict with the "spirit" of the ordinance fall into two classes:

1.  
   • Those in which the applicant seeks to expand or extend a nonconforming use, and
   • Those in which he seeks a use variance, a variance permitting him to use his property for a purpose forbidden by the zoning regulation.

1. That in the Granting of the Variance the Public Safety and Welfare Have Been Assured and Substantial Justice Has Been Done.

Most of the court cases concerning this finding have dealt with the question of whether the variance would threaten the public safety and welfare of the surrounding area or alter the character of the neighborhood in such a way as to create substantial injustice.

 

Recommending Zoning Amendments To The City Council

The Board of Adjustment has both the authority and the responsibility to make recommendations on zoning amendments to the City Council whenever it encounters situations in which the ordinance does not seem to be working.

II.        LEGAL ASPECTS OF BOARD OF ADJUSTMENT PROCEDURES

 

Judicial Review of Administrative Action

Both Procedural and substantive requirements are imposed on the Board by the courts.

 

Procedural Requirements

1. The Board is required to conduct their meetings in such a way that interested parties have an opportunity to be heard and are otherwise fairly treated.
2. The Board is required to make its findings of fact based upon evidence that is legally sufficient in terms of both quantity and quality.
3. The Board must make a record of its proceedings that is adequate to allow a reviewing court to determine whether the other requirements have been complied with.

Substantive Requirement

The Board must find facts which lead reasonably to the conclusions they reach and that in making a final decision on the merits, the Board apply the correct principles of law.

 

Open Meeting Law

Meetings must be open to the public in accordance with the Open Meeting Law. No part of the meeting can be conducted in an executive session in order to weigh evidence before making a finding.

 

Notice

North Carolina law does not require a notice to the public or neighboring landowners. However, the Board's Rules of Procedure call for a newspaper notice to be published for two consecutive days at last five days prior to the meeting. This notice shall include all facts concerning the appeal and the time and place of the hearing. In addition, copies of the agenda are sent to the neighboring landowners.

 

Right To Present Evidence

A party to a Board of Adjustment hearing must be allowed to present evidence to meet his burden of proof and must also be permitted to present evidence by way of explanation or rebuttal. The Board is not required to listen to evidence that is incompetent, irrelevant, immaterial, or unduly repetitious.

 

Cross-examination

Cross-examination of adverse witnesses is a fundamental right in a hearing before the Board. If such a witness is not cross-examined by a participant, the Board has the duty to satisfy itself of the accuracy of testimony.

 

Voting

The enabling act for cities provides: The concurring vote of four-fifths of the members of the Board shall be necessary to reverse any order, requirement, decision, or determination of an administrative official charged with the enforcement of an ordinance adopted pursuant to this article, or to decide in favor of the applicant in any matter upon which it is required to pass under any ordinance, or to grant a variance from provisions of the ordinance.

An essential element of a fair hearing is that the decision be made by an impartial tribunal. A Board member may have to disqualify himself from participation if his vote is likely to be challenged on the basis of prejudice or conflict of interest. However, since a four-fifths vote is needed to approve an appeal, the disqualification of members often results in the inability to obtain the necessary four-fifths vote of the Board. To avoid this problem, members of the Board can be excused from voting only for the reasons set forth in the Rules of Procedure.

 

Rules of Evidence

1. The Board shall follow the rules of evidence as applied in the trial division of the General Court of Justice, except that when evidence is not reasonably available under rules to show relevant facts, they may be shown by the most reliable and substantial evidence available.
2. The Board may not rely on unsworn testimony with respect to crucial findings of fact.
3. The Board may not rely on hearsay evidence with respect to crucial findings of fact.
   The following items all constitute hearsay evidence:
   1. A statement by the applicant that he consulted all of his neighbors, and that they favored his applications.
   2. Letters by the applicant's neighbors stating they favor the proposed use; and
   3. Sworn affidavits by the neighbors stating they favor the proposed use.
4. The Board is not to allow or rely on a witness's statements based on how he thinks, or feels, or believes, unless he is recognized as an expert by the Chairman. Only what is known as fact is to be submitted with respect to the finding of fact.

Record of The Board of Adjustment Hearings

The decisions of the Board are to be in writing. Because fact finding, the drawing of conclusions, and the interpretation of the Zoning Ordinance are important responsibilities of the Board, each decision shall be preceded by the Board's finding of fact, conclusions, and ordinance interpretations. The minutes are to carefully record all the procedural aspects of the meeting, such as number and names of Board members present, what witnesses were heard, whether they were sworn, whether parties were represented by counsel, whether cross-examination of witnesses was requested and allowed, and any other event at the hearing that had any impact on the outcome. Also, the vote of each member of the Board shall be recorded in the minutes.

Documentary and physical evidence of any kind admitted by the Board at the hearing are to be retained and made part of the permanent record of the case.

The record is to consist of three parts:

1. The written discussion, findings of fact, and ordinance interpretation;
2. The minutes, containing a summary of what happened at the hearing and what evidence was presented as well as a record of the vote; and
3. A compilation of documentary and other physical evidence.

III. BIBLIOGRAPHY

1. Brough, Michael B. and Phillip P. Green, Jr., The Zoning Board of Adjustment in North Carolina, Institute of Government, University of North Carolina at Chapel Hill, Chapel Hill, North Carolina, 1978
2. North Carolina Municipal Zoning Enabling Act
3. The City of High Point Development Ordinance