Zoning Board of Adjustment

The Zoning Board of Adjustment in the Town of Highlands

Zoning Board of Adjustment

The Zoning Board is an administrative body, established under the same authority of the General Statutes as the Zoning Ordinance, whose function is to provide relief where a strict interpretation of the Zoning Ordinance would create a hardship. The Board is a "quasijudicial" body meaning that in some respects it is similar to a court of law composed of five laymen who are appointed to three year terms by the Town Board of Commissioners.

The Zoning Board's function is to:

Hear appeals of decisions of the Zoning Administrator, or in some cases make interpretations of the Ordinance or the Zoning Map
Grant Special Use Permits
Hear applications for variances

Appeals and Interpretation

Section 602.2(B) provides that any decision of the Zoning Administrator is subject to appeal by an applicant for a Zoning Certificate, or by any affected property owner or citizen; appeals must be taken within 30 days of the decision, and must be filed on the appropriate form. The General Statutes also authorize the Board, usually in connection with denial of a permit, to interpret parts of the Ordinance that are unclear, or to apply the Ordinance to particular situations. In exercising this authority, the Board is not permitted to vary the Ordinance, only to interpret and apply the Ordinance to a particular case; it is the responsibility of the Town Board of Commissioners to amend the Ordinance.

Another type of very specific authority the Board has under this category in Section 602.2(A) is interpretation of the Zoning Map in disputes involving lot lines or district boundary lines.

Special Use Permits

While most Zoning Certificates are issued by the Zoning Administrator, either prior to or in conjunction with a Building Permit, the General Statutes empower the Zoning Board to permit, in individual cases, certain exceptional uses that are authorized only under stated conditions; these are generally uses which might have a significant impact on the community, and in our Ordinance are as follows:

Section 501.1

All new commercial construction, additions to existing commercial buildings, and remodeling of existing commercial buildings which would result in an increase in the number of
business occupants in the buildings.
Crafts fairs, flea markets, and other similar transient retail businesses.
Places of entertainment, including indoor theaters, dance halls, skating rinks, and bowling alleys.
Hotels and motels.
Restaurants. (See Section 507)
Automotive and heavy machinery sales and service centers or stations.
Service or fuel stations.
Private schools not accredited by the State of N.C. and not offering a full time academic curriculum.
Day care centers (as defined in Section 802).
Multifamily dwellings of any kind. (See Section 502)
Private social clubs. (See Section 503)
Tourist homes. (See Section 504)
Self service storage facilities. (See Section 505)
Flammable liquid storage facilities. (See Section 506)
Churches and other places of public worship.

The Zoning Board is required to grant a Special Use Permit if the following findings are made [Section 501.3(D)]:

The use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved;
The use meets all required conditions and specifications;
The use will not substantially injure the value of adjoining or abutting property or, in the alternative, the use is a public necessity; and
The location and character of the use, as developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the plan of development of the Town and its environs.

In addition to these four general conditions, some special uses have additional specific requirements (Sections 502 through 506), which are considered as part of Finding No. 2, that the use meets all required conditions and specifications.

The Zoning Board may, in issuing a Special Use Permit, designate additional conditions and requirements in connection with the application to ensure that the use will be "harmonious with the area in which it is proposed to be located and with the spirit of the Ordinance." These conditions are binding upon the original applicant, and also run with the land and are binding upon the applicant's heirs, successors, or assigns.

Vested Rights

Pursuant to G. S. 160A385.1, the Town amended its Zoning Ordinance on September 18, 1991, to permit an applicant for a Special Use Permit to also apply to establish a "vested right." A vested right permits a property owner to complete a development regardless of any zoning action of the Town, and remains vested for two (2) years. (See Section 501.7)

Appearance Commission

On February 20, 1991, the Board adopted Article 900 of the Zoning Ordinance, which created an Appearance Commission; the Article originally had a "sunset" clause of two years, but it was made a permanent part of the Ordinance on February 3, 1993. Section 803.5 requires applicants for Special Use Permits to first submit applications to the Appearance Commission for review and recommendation; the Commission's report is then sent to the Zoning Board with the application. Special Uses which do not involve any change in the appearance of a building or premises are exempt from the requirement.

Under the State enabling legislation, the Commission's power is limited to review and recommendation only, and the Zoning Board is specifically prohibited from denying an application on the basis of a negative recommendation from the Commission. The purpose of the review process is to encourage applicants to consider the impact of their project on the appearance of the Town. The Appearance Commission is asked to consider such factors as "building design, relationship of building to site, relationship of project to adjoining area, landscape and site treatment, signs, lights, street hardware, miscellaneous structures, maintenance, and any other considerations it feels reasonably affect the appearance of the project."

The Appearance Commission meets when there are applications on the fourth Monday of every month at 7:00 p.m. in the conference room of the Town Hall. Applications are available from the Zoning Administrator at the Town Office, and should be prepared in conjunction with the Special Use Permit application in order to avoid unnecessary duplication in the preparation of plans.

All applications before the Planning Board must be made one week in advance of their monthly meeting (i.e., by the third Monday each month); applications made after that deadline will only be considered by majority vote of the Board at the meeting.

Variances

The Zoning Board's major function is the granting of variances from the Zoning Ordinance. A variance is a permit which the Board may grant in certain situations enabling a property owner to make use of his property in a way that conflicts with the literal provisions of the ordinance. The Zoning Board does not, however, have unlimited discretion in deciding whether to grant a variance. The Board's authority is defined by the State enabling act, which requires the Board to reach three general conclusions before granting a variance.

The first conclusion is:

(1)"There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the Ordinance." The Town's Zoning Ordinance specifies that the five following conditions exist in order to determine that there are practical difficulties or unnecessary hardships:
1. (a) If he complies with the provisions of the Ordinance, the applicant can secure no reasonable return from, nor make reasonable use of, his property. Merely proving that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the Board in granting a variance. Moreover, the Board shall consider whether the variance is the minimum possible deviation from the terms of the Ordinance that will make possible the reasonable use of his property.
2. (b) The hardship results from the application of the Ordinance to the property rather than from other factors such as deed restrictions or other hardship.
3. (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.
4. (d) The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates the Ordinance, or who purchases the property after the effective date of the Ordinance, and then comes to the Board for relief.
5. (e) The hardship is peculiar to the applicant's property, rather than the result of conditions that are widespread. 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.

The other two conclusions the Board must reach are:
1. (2) If "The variance is in harmony with the general purpose and intent of the Ordinance and preserves its spirit." That is, the applicant is not seeking to establish, to expand, or to extend in area a nonconforming use. Moreover, the existence of a nonconforming use in the same or in any other zoning district shall not constitute a reason for granting the requested variance.
2. (3) "In the granting of the variance, the public safety and welfare have been assured and substantial justice has been done."

The Board shall not grant a variance if it finds that doing so would alter the essential character of the neighborhood, materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, or general welfare.

As with Special Use Permits, the Zoning Board may designate additional conditions and requirements in connection with granting a variance which are binding on the applicant.

Watershed Amendments

Effective October 1, 1993, the Town has amended its Zoning Ordinance to implement requirements of the Watershed Protection Act of 1989. Variances from these requirements in most cases, built-upon limits and buffer areas in watershed overlay districts are classified either as major or minor variances. A major variance is basically "the relaxation, by a factor of more than ten (10) percent, of any management requirement that takes the form of a numerical standard." In other words, if a required buffer is 50 feet, and a request for a variance is received proposing a buffer of less than 45 feet, then the variance is considered a major one.

In the case of a major variance, the Zoning Board hears the case according to the foregoing procedure. If the Board decides in favor of granting the variance, however, it only becomes effective if also approved by the Environmental Management Commission, according to procedures outlined in the Zoning Ordinance. The applicant should be aware that major variances will require a longer period of time to be decided, and possibly additional application fees required by the Environmental Management Commission.

Meetings

The Zoning Board meets in the conference room of the Town Hall Building in Highlands on the second Wednesday of every month. Meetings are held at 5:30 p.m. year-round, and are conducted according to Rules of Procedure which the Board has adopted. Although not as formal as a court of law, the Zoning Board must make its findings in a proper and legal manner; testimony is sworn, evidence is taken, and exhibits are submitted. Any Board member has the right to question an applicant, and all meetings are open to the public. Any member of the public may attend the hearing and shall be allotted reasonable time in which to offer testimony and/or recommendations concerning the application. Following the hearing, a ruling is prepared granting or denying the application.

Applications

Applications for Appeals, Special Use Permits, and Variances must be made on the proper form, which is available from the Zoning Administrator at the Town Office. In general, Special Use Permit applications must include detailed site plans, elevations and floor plans, and a complete and detailed description of the use proposed. Variance applications must also include a written summary of the facts the applicants intends to show and the arguments he intends to make to convince the Board that it can property grant the variance. Any documentation must be submitted at the same time as the application in order to give Zoning Board members the opportunity to study the case prior to the meetings. Board members may not, however, discuss any case with the applicant prior to the public hearing.

An application fee of $100.00 covers the expense of advertising the public hearing in The Highlander newspaper at least seven days prior to the hearing. The deadline for application is posted in the lobby of the Town Hall.

Appeals

Every decision of the Zoning Board is subject to review by Macon County Superior Court. Appeals must be filed within 30 days of the ruling and as provided by law.

For Further Information

Copies of the Zoning Ordinance are available at the Town Office at a nominal charge, as are copies of applications for Appeals, Special Use Permits, and Variances. For more information, call Josh Ward, Planning & Development Code Enforcement Officer, at (828) 526-5266 or 526-2118.