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June 2023 BOA Agenda Packet June 27, 2023, 5:30 PM I. Call Meeting to Order (Chair Cameron Moore) II. Approval of May 23, 2023 Minutes (Attendees at May Meeting – Vice Chair William Mitchell, Michael J. Keenan Sr., Richard Kern, Ed Trice) III. Old Items of Business Case BOA-979 – James A. Wicker, applicant, on behalf of Khalid Saleh, property owner, is requesting a variance of 19’ from the 6’ maximum height requirement for a freestanding sign in the Special Highway Overlay District per section 3.5.3(D)(6) of the New Hanover County Unified Development Ordinance. The property is zoned B-2, Regional Business District and is located at 7650 Market Street. This item was continued from the May 23, 2023 meeting. IV. Regular Items of Business V. Other Business Adoption of Rules and Procedures VI. Adjourn MEMBERS OF THE BOARD Cameron Moore, Chair | William Mitchell, Vice Chair Michael Keenan, Sr. BOARD ALTERNATES Richard Kern | Michael Sanclimenti | Ed Trice Rebekah Roth, Director of Planning & Land Use | Karen Richards, Deputy County Attorney NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, CONFERENCE ROOM 139 WILMINGTON NC 28403 BOA-979 1 of 5 VARIANCE REQUEST BOARD OF ADJUSTMENT June 27, 2023 CASE: BOA-979 PETITIONER: James A. Wicker, applicant, on behalf of Khalid Saleh, property owner. REQUEST: Variance of 19’ from the 6’ maximum height requirement for a freestanding sign in the Special Highway Overlay District per section 3.5.3(D)(6) of the New Hanover County Unified Development Ordinance. LOCATION: 7650 Market Street PID: R03600-005-037-000 ZONING: B-2, Regional Business District ACREAGE: 1.44 Acres BACKGROUND AND ORDINANCE CONSIDERATIONS: The applicant is requesting a variance from the Special Highway Overlay District (SHOD) signage requirements limiting freestanding signs to a height of 6’ to allow a permitted and constructed 25’ sign to remain on the property in its current location. The SHOD was adopted as an overlay district on certain road corridors beginning in 1986 with the intent to protect the natural beauty and scenic vistas that exist along interstate highways and other specially designated roadways that serve as major accessways and gateways into unincorporated New Hanover County. Currently, the SHOD is located along I-40/N College Road north of Martin Luther King, Jr. Parkway, I-140, and Market Street from the Torchwood Boulevard/Bayshore Drive intersection north to the Pender County line. The SHOD contains requirements for setbacks, outside storage, parking and loading, lot coverage, and signage that are in addition to or supersede the requirements of the base zoning district applied to the property. Figure 1: Location of SHOD District Along Roadways in Northern New Hanover County BOA-979 2 of 5 The subject parcel is located along Market Street in the Bayshore area, approximately a third of a mile north of the intersection of Market Street and Torchwood Boulevard/Bayshore Drive. Construction of a Convenience Store with Fuel Sales, which is a use by-right in the B-2 district, is nearing completion on the site. Figure 2: General Vicinity of Subject Site with Zoning Districts and SHOD Boundary Section 3.5.3 D of the UDO details the SHOD district standards, which prescribe a limitation on height and area of freestanding sign: 3.5.3. SPECIAL HIGHWAY OVERLAY (SHOD) DISTRICT D. SHOD District Standards 6. Signs: Signs shall comply with Section 5.6, Signs, except that only one freestanding ground sign that does not exceed 6 feet in height and a maximum surface area of 150 square feet is allowed within the 100-foot setback. No outdoor advertising signs are permitted. A conceptual review for the project was presented to the Technical Review Committee (TRC) on May 13, 2020 and a formal application was submitted for the October 21, 2020 TRC agenda. Planning staff comments for both submittals indicated to the applicant that the development was subject to SHOD requirements, including the requirements that signage in the SHOD is limited to one freestanding ground sign that is less than 6 feet in height and 150 square feet in area. In a written response to the TRC comments provided at the October 21, 2020 TRC meeting, the applicant acknowledged that the sign was subject to the SHOD requirements, and noted that the submitted drawings were revised to include a note addressing the sign restrictions and that this was to be permitted by others. This footnote was subsequently included in revised drawing sets submitted to the county and dated December 15, 2020 and March 11, 2021. Site BOA-979 3 of 5 Figure 3: Portion of Submitted Site Drawings Dated December 15, 2020 of which Footnote 12 Acknowledges SHOD Signage Regulations. A building permit for construction of the convenience store and fuel canopy was applied for on March 9, 2022, and received zoning approval on March 18, 2022 and ultimately a building permit on May 5, 2022. The civil construction drawings submitted with this building permit application, dated February 14, 2022, also contain a footnote regarding the freestanding sign which acknowledges the height and area restrictions and refers permitting duties to be conducted by others. The application for the freestanding sign was submitted on January 13, 2023 and subsequently received zoning approval on January 26, 2023, with the permit being issued on January 30, 2023. However, the site drawings included with this application did not adhere to the SHOD district requirements set forth in the UDO nor referred to during previous TRC or staff reviews. The sign was inadvertently given permit approval for a 25’ tall sign and was constructed at this height, out of compliance with the SHOD regulations. Proposed Sign Location with Footnote Reference from Submitted Drawings Text Accompanying Footnote 12 BOA-979 4 of 5 Figure 4: Sign Drawing Submitted with Permit Application in January 2023 Staff was made aware of this error upon preparing to conduct a final inspection on the sign, which was called in to be performed on March 7, 2023. After consultation with legal staff, it was determined that the sign would have to be brought into compliance with the SHOD regulations, despite being given permit approval in error. Options to bring the sign into compliance include reducing the sign height to the required 6’ dimension, moving it outside of the 100’ setback line, appealing the decision that the sign is out of compliance, or requesting a variance to allow the sign to remain as constructed. The applicant has elected to pursue the option of requesting a variance from the SHOD signage regulations in order to achieve compliance. The applicant contends that a variance is necessary due to hardship created through the development review process as detailed within their submitted application. In summary, the applicant is requesting a variance of 19’ from the 6’ height limitation on freestanding signs in the SHOD in order to allow the permitted and constructed 25’ sign to remain on the property in its current location. BOA-979 5 of 5 BOARD OF ADJUSTMENT POWER AND DUTY: The Board of Adjustment has the authority to authorize variances from the terms of the Unified Development Ordinance where, due to special conditions, a literal enforcement of the regulations would result in unnecessary hardship. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with the Unified Development Ordinance. A concurring vote of four-fifths (4/5) of the voting members of the Board shall be necessary to grant a variance. A variance shall not be granted by the Board unless and until the following findings are made: 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. 2. 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. 3. 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. 4. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. ACTION NEEDED (Choose one): 1. Motion to approve the variance request based on the findings of fact (with or without conditions) 2. Motion to table the item in order to receive additional information or documentation (Specify). 3. Motion to deny the variance request based on specific negative findings in any of the 4 categories above. Case: BOA-979 a? a BER�E\G :' �j Vicinity Map Address: 7650 Market Street Request of variance of 19' from the 6' maximum height requirement for a freestanding sign in the Special Highway Overlay District per section 3.5.3(0)(6) of the New Hanover County Unified Development Ordinance. Applicant: James A. Wicker New Hanover County Zoning Board of Adjustment June 27, 2023 ........ Case: BOA-979 Zoning Map Address: 7650 Market Street Request of variance of 19' from the 6' maximum height requirement for a freestanding sign in the Special Highway Overlay District per section 3.5.3(0)(6) of the New Hanover County Unified Development Ordinance. Applicant: James A. Wicker New Hanover County Zoning Board of Adjustment June 27, 2023 Case: BOA-979 Aerial Map Address: 7650 Market Street Request of variance of 19' from the 6' maximum height requirement for a freestanding sign in the Special Highway Overlay District per section 3.5.3(0)(6) of the New Hanover County Unified Development Ordinance. Applicant: James A. Wicker New Hanover County Zoning Board of Adjustment June 27, 2023 MEMBERS OF THE BOARD Cameron Moore, Chair | William Mitchell, Vice Chair Michael Keenan, Sr. BOARD ALTERNATES Richard Kern | Michael Sanclimenti | Ed Trice Rebekah Roth, Director of Planning & Land Use | Karen Richards, Deputy County Attorney NEW HANOVER COUNTY BOARD OF ADJUSTMENT 230 GOVERNMENT CENTER DRIVE, CONFERENCE ROOM 139 WILMINGTON NC 28403 ORDER TO GRANT A VARIANCE – Case BOA-979 The Board of Adjustment for New Hanover County, having held a public hearing on June 27, 2023 to consider application number BOA-979, submitted by James A. Wicker, applicant, on behalf of Khalid Saleh, property owner, a request for a variance of 19’ from the 6’ maximum height requirement for a freestanding sign in the Special Highway Overlay District per section 3.5.3(D)(6) of the New Hanover County Unified Development Ordinance and to use the property located at 7650 Market Street in a manner not permissible under the literal terms of the UDO and having heard all the evidence and arguments presented at the hearing, makes the following FINDINGS OF FACT and draws the following CONCLUSIONS: 1. It is the Board’s conclusion that, if the applicant complies with the literal terms of the ordinance, specifically the 6’ maximum height requirement for a freestanding sign in the Special Highway Overlay District per section 3.5.3(D)(6) of the New Hanover County Unified Development Ordinance, that an unnecessary hardship would/would not result. (It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.) This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. 2. It is the Board’s conclusion that the hardship of which the applicant complains results/does not result from unique circumstances related to the subject 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.) This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. 3. It is the Board’s conclusion that the hardship did/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.) This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. 4. It is the Board’s conclusion that, if granted, the variance will/will not be consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved. This conclusion is based on the following FINDINGS OF FACT: • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. • _______________________________________________________________________. THEREFORE, on the basis of all the foregoing, IT IS ORDERED that the application for a VARIANCE from the New Hanover County Unified Development Ordinance to allow an increase of 5’ from the 50’ maximum building height requirement per section 3.4.10(D)(3) of the New Hanover County Unified Development Ordinance be GRANTED/DENIED, subject to the following conditions, if any: ORDERED this 27th day of June, 2023. ____________________________________ Cameron Moore, Vice Chair Attest: ________________________________ Kenneth Vafier, Executive Secretary to the Board PO Box 1546 / 1078 S. Main St. / Mt. Airy, NC 27030 / O: 336-789-4074 / © 2021 by K&D Signs LLC Customer Signature:Date: Current Image Sam's Mart - 7650 Market Street, Wilmington, NC 28411 P.01 Designer: Dustin Bledsoe Project: 21-1852 Rev#: Date: 12/15/2021 18’ ENLARGED VIEW OF SIGN AREA Proposed Layout PO Box 1546 / 1078 S. Main St. / Mt. Airy, NC 27030 / O: 336-789-4074 / © 2021 by K&D Signs LLC Customer Signature:Date: Sam's Mart - 7650 Market Street, Wilmington, NC 28411 P.04 Designer: Dustin Bledsoe Project: 21-1852 Rev#: Date: 12/15/2021 ID Sign PO Box 1546 / 1078 S. Main St. / Mt. Airy, NC 27030 / O: 336-789-4074 / © 2021 by K&D Signs LLC Customer Signature:Date: Sam's Mart - 7650 Market Street, Wilmington, NC 28411 P.11 Designer: Dustin Bledsoe Project: 21-1852 Rev#: Date: 12/15/2021 6.56 6.56 3.94 3.94 1.95 1.95 1.95 133.10 Sq Ft 25’ OAH Rules of Procedure New Hanover County Board of Adjustment The New Hanover County Board of Adjustment, realizing that rules and regulations are necessary for the orderly and proper discharge of its business and duties, adopts these rules of procedure to expedite the handling of matters coming before the Board. 1. General Rules The Board of Adjustment shall be governed by the terms of Chapter 160D of the General Statutes of North Carolina and by the terms of the New Hanover County Unified Development Ordinance (UDO), adopted by the New Hanover County Board of Commissioners on February 3, 2020 , and any subsequent amendments thereto; and the New Hanover County Committee Policy: “Policy and Procedures for Appointments to County Boards, Commissions, Committees and Authorities”, adopted by the Board of Commissioners on February 21, 2011 and all revisions thereto. (Amended 11/22/83). 2. Officers and Duties A. Chairperson – The Chairperson shall be elected by majority vote of the membership of the Board from among its members. The Chairperson’s term of office shall be for one year, and until a successor is elected, beginning on November 1st, and the Chairperson shall be eligible for re-election. Subject to these rules, the Chairperson shall decide upon all points of order and procedure, unless directed otherwise by a majority of the Board in session at the time. B. Vice-Chairperson – A Vice-Chairperson shall be elected by the Board from among its members in the same manner and for the same term as the Chairperson. The Vice- Chairperson shall serve as acting Chairperson in the absence of the Chairperson, and at such times shall have the same powers and duties as the Chairperson. C. Secretary – The New Hanover County Planning & Land Use Director or designee shall serve as Secretary of the Board of Adjustment. The Secretary, subject to the direction of the Chairperson and the Board, shall be responsible for the conduct of all correspondence of the Board, and shall be responsible for keeping, in a permanent volume, the minutes of every meeting of the Board. These minutes shall record all important facts pertaining to each meeting and hearing, every action taken by the Board, and all votes of members of the Board upon any matter, indicating the names of absentees or those failing to vote. All minutes shall be filed in the Planning and Land Use Department and become public record. The Secretary shall not be eligible to vote upon any matter. (Amended 3/22/89). 3. Meetings A. Regular Meetings: Regular meetings of the Board of Adjustment shall be held once a month on the fourth Tuesday of the month in the Lucie Harrell Conference Room of the New Hanover County Government Center, 230 Government Center Drive, Wilmington, North Carolina, provided that upon direction of the Chairperson or a majority of the Board, any meeting may be held at any other place in the County. B. Special Meetings: Special meetings of the Board of Adjustment may be called at any time by the Chairperson or by a majority of the Board. The Chairperson or Secretary shall give written notice stating the meeting time, place, and items to be considered to each board member and the Sunshine List at least forty-eight (48) hours before the meeting. Notice shall also be posted on the County website and on the Board’s principal bulletin board located at the New Hanover County Government Center. C. Cancellation of Meetings: Whenever there is no business for the Board, the Chairperson may dispense with a regular meeting by giving notice to all members of the Board, not less than twenty-four (24) hours prior to the time set for the meeting. D. Quorum: A quorum shall consist of four-fifths (4/5) of the membership of the Board. E. Vote: The concurring vote of four-fifths (4/5) of the Board shall be necessary to grant a variance or reasonable accommodation. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal 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 under G.S. 160D- 109(d) shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members. F. Conduct of Meetings: 1. All meetings shall be open to the public. 2. The order of business at regular meetings shall be as follows: a. Call to order b. Pledge of Allegiance c. Correction and approval of the minutes of the previous meeting d. Oaths taken by all persons planning on presenting evidence or testimony e. Hearings for consideration of unfinished cases f. Hearings for consideration of new cases g. Staff, Board, or citizens’ reports h. Items by Secretary i. Items by Chairperson G. Hearings: The order of public hearings shall be as follows: 1. The Chairperson shall introduce the case; 2. The Secretary shall give a brief presentation on the case; 3. The applicant may present arguments and relevant evidence in support of his or her case or application; [3/22/89] 4. Parties or persons with standing who are opposed to granting the application may present arguments and relevant evidence against the application; [3/22/89] 5. If the hearing is in conjunction with an appeal, the County official from whom the appeal is taken may present relevant evidence in support of the appealed order, requirement, decision or determination; [3/22/89] 6. All parties to the proceeding shall be permitted to cross-examine witnesses and present rebuttals to opposing testimony; and [3/22/89] 7. The Chairperson may summarize the evidence which has been presented, giving the parties an opportunity to make objections or corrections. The Board may, in its discretion, call and examine witnesses to obtain additional facts in the matter before arriving at a determination of the case, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law. (Amended 11/22/83 & 3/22/89) 4. Responsibility of Board of Adjustment Members A. Membership on the Board of Adjustment shall be governed by the terms of Section 160D-302, of the General Statutes of North Carolina and Article 10 of the New Hanover County Unified Development Ordinance. (Amended 11/22/83). B. Members of the Board may be removed with or without cause by the Board of County Commissioners. (Amended 3/22/89). C. Whenever any Board member shall incur three unexcused absences, said Board member’s failure to attend shall be reported by the Chairperson to the Chair of the Board of Commissioners. Such unexcused absences on the part of any Board member may, at the election of the Chair of the Board of County Commissioners, be deemed to constitute resignation on the part of the Board member from the Board of Adjustment. Excused absences are defined as absences caused by events beyond one’s control and are subject to approval by the Board of Adjustment. . (Amended 11/22/83). D. No Board member shall take part in the hearing, consideration or decision of any case in which any of the following conflicts of interests, as outlined in N.C.G.S. 160D-109, apply: a. The outcome of the matter is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the Board member; b. The applicant is a person with whom the Board member has a close familial, business, or other associational relationship; c. The Board member has a fixed opinion prior to hearing the matter that is not susceptible to change; or The Board member has taken part in undisclosed ex-parte communication. E. No Board member shall vote on any matter deciding an application or appeal unless he or she shall have attended the public hearing on that application or appeal. Board members may individually visit the premises that is the subject of the application or appeal. Should a Board member receive an unsolicited comment from a party or member of the public concerning the case while visiting the premises, the Board member shall inform the person seeking to comment that discussing a case prior to the hearing is prohibited and shall disclose at the hearing the substance and source of any such unsolicited comment. (Amended 3/22/89). 5. Annual Report to Planning Board and County Commissioners The Board shall prepare and submit in January of every year, to the Board of County Commissioners and the New Hanover County Planning Board a report of its activities for the prior year. Such a report shall contain a statement of the number of cases heard and a summary of the action taken, along with any other matters which the Board deems appropriate for inclusion in such report. (Amended 11/22/83). 6. Amendments These rules may, within the limits allowed by law, be amended at any time by an affirmative vote of not less than four-fifths (4/5) of the members of the Board. Rules of Procedure New Hanover County Zoning Board of Adjustment New Hanover County North Carolina The New Hanover County Board of Adjustment, realizing that rules and regulations are necessary for the orderly and proper discharge of its business and duties, adopts these rules of procedure to expedite the handling of matters coming before the Board. 1. General Rules The Board of Adjustment shall be governed by the terms of Chapter 160D Section 153A, Article 18, Part 3, of the General Statutes of North Carolina and by the terms of Article XII of the New Hanover County Unified Development Ordinance (UDO), adopted by the New Hanover County Board of Commissioners on February 3, 2020 Zoning Ordinance as adopted October 15, 1969, and any subsequent amendments thereto; and the New Hanover County Committee Policy: “Policy and Procedures for Appointments to County Boards, Commissions, Committees and Authorities”, adopted by the Board of Commissioners on February 21, 2011 and all revisions thereto. (Amended 11/22/83). 2. Officers and Duties A. Chairman Chairperson – The Chairman Chairperson shall be elected by majority vote of the membership of the Board from among its members. His The Chairperson’s term of office shall be for one year, and until his a successor is elected, beginning on November 1st, and the Chairman Chairperson shall be eligible for re-election. Subject to these rules, the Chairman Chairperson shall decide upon all points of order and procedure, unless directed otherwise by a majority of the Board in session at the time. The Chairman shall appoint any committee found necessary to investigate any matter before the Board. B. Vice-Chairman Chairperson – A Vice-Chairman Chairperson shall be elected by the Board from among its members in the same manner and for the same term as the ChairmanChairperson. He The Vice-Chairperson shall serve as acting Chairman Chairperson in the absence of the ChairmanChairperson, and at such times he shall have the same powers and duties as the ChairmanChairperson. C. Secretary – The New Hanover County Planning & Land Use Director of Inspections or designee shall serve as Executive Secretary of the Board of Adjustment. In the absence of the Inspections Director, the Chief Zoning Enforcement Officer shall serve as the Executive Secretary. The Executive Secretary, subject to the direction of the Chairman Chairperson and the Board of Adjustment, shall be responsible for the conduct of all correspondence of the Board, and shall be responsible for keeping, in a permanent volume, the minutes of every meeting of the Board. These minutes shall record all important facts pertaining to each meeting and hearing, every action taken by the Board, and all votes of members of the Board upon any matter, indicating the names of absentees or those failing to vote. shall advise the Board on technical aspects of zoning, advise the Board regarding specific aspects of the appeal or request, keep all records and conduct all correspondence of the Board. The Secretary shall keep minutes of each Board meeting, and shall keep a record of all important facts pertaining to each meeting and hearing, every action by the Board and the votes of all members upon any matter, indicating the names of absentees or those failing to vote. All minutes shall be filed in the Office of the Building InspectorPlanning and Land Use Department and become public record. The Executive Secretary shall not be eligible to vote upon any matter. (Amended 3/22/89). 3. Meetings A. Regular Meetings: Regular meetings of the Board of Adjustment shall be held once a month on the fourth Tuesday of the month in the Lucie Harrell Conference Room of the New Hanover County Government Center, 230 Government Center Drive, Wilmington, North Carolina, provided that upon direction of the Chairperson or a majority of the Board, any meeting may be held at any other place in the County. B. Special Meetings: Special meetings of the Board of Adjustment may be called at any time by the Chairperson or by a majority of the Board. The Chairperson or Secretary shall give written notice stating the meeting time, place, and items to be considered to each board member and the Sunshine List at least forty-eight (48) hours before the meeting. Notice shall also be posted on the County website and on the Board’s principal bulletin board located at the New Hanover County Government Center. C. Cancellation of Meetings: Whenever there is no business for the Board, the Chairperson may dispense with a regular meeting by giving notice to all members of the Board, not less than twenty-four (24) hours prior to the time set for the meeting. D. Quorum: A quorum shall consist of four-fifths (4/5) of the membership of the Board. E. Vote: The concurring vote of four-fifths (4/5) of the Board shall be necessary to grant a variance or reasonable accommodation. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal 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 under G.S. 160D- 109(d) shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members. F. Conduct of Meetings: 1. All meetings shall be open to the public. 2. The order of business at regular meetings shall be as follows: a. Call to order b. Pledge of Allegiance c. Correction and approval of the minutes of the previous meeting d. Oaths taken by all persons planning on presenting evidence or testimony e. Hearings for consideration of unfinished cases f. Hearings for consideration of new cases g. Staff, Board, or citizens’ reports h. Items by Secretary i. Items by Chairperson G. Hearings: The order of public hearings shall be as follows: 1. The Chairperson shall introduce the case; 2. The Secretary shall give a brief presentation on the case; 3. The applicant may present arguments and relevant evidence in support of his or her case or application; [3/22/89] 4. Parties or persons with standing who are opposed to granting the application may present arguments and relevant evidence against the application; [3/22/89] 5. If the hearing is in conjunction with an appeal, the County official from whom the appeal is taken may present relevant evidence in support of the appealed order, requirement, decision or determination; [3/22/89] 6. All parties to the proceeding shall be permitted to cross-examine witnesses and present rebuttals to opposing testimony; and [3/22/89] 7. The Chairperson may summarize the evidence which has been presented, giving the parties an opportunity to make objections or corrections. The Board may, in its discretion, call and examine witnesses to obtain additional facts in the matter before arriving at a determination of the case, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law. (Amended 11/22/83 & 3/22/89) 3.4. Responsibility of Board of Adjustment Members A. Membership on the Board of Adjustment shall be governed by the terms of Section 153A-345160D-302, of the General Statutes of North Carolina and Article XII 10 of the New Hanover County Zoning Unified Development Ordinance. (Amended 11/22/83). B. Members of the Board may be removed for with or without cause, by the Board of County Commissioners. (Amended 3/22/89). C. Whenever any Board member shall incur three unexcused absences, said Board member’s failure to attend shall be reported by the Chairperson to the Chair of the Board of Commissioners. Such unexcused absences on the part of any Board member may, at the election of the Chair of the Board of County Commissioners, be deemed to constitute resignation on the part of the Board member from the Board of Adjustment. Excused absences are defined as absences caused by events beyond one’s control and are subject to approval by the Board of Adjustment. If an appointee has unexcused absences which constitute more than 25% of the Board meetings in any calendar year which he or she is required to attend pursuant to his or her appointment, he or she may be asked to resign. Excused absences are defined as absences caused by events beyond one’s control. If the individual refuses to resign when asked, he or she may be dismissed by action of the Board of County Commissioners subject to state or local law. A calendar year is to be defined as a 12 month period beginning on the date of appointment. (Amended 11/22/83). D. No Board member shall take part in the hearing, consideration or determination decision of any case in which any of the following conflicts of interests, as outlined in N.C.G.S. 160D-109, apply: a. The outcome of the matter is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the Board member; b. The applicant is a person with whom the Board member has a close familial, business, or other associational relationship; c. The Board member has a fixed opinion prior to hearing the matter that is not susceptible to change; or D. The Board member has taken part in undisclosed ex-parte communication. he or she is personally or financially interested. E. No Board member shall vote on any matter deciding an application or appeal unless he or she shall have attended the public hearing on that application or appeal. F. Board members may individually visit the premises that is the subject of the application or appeal. Should a Board member receive an unsolicited comment from a party or member of the public concerning the case while visiting the premises, the Board member shall inform the person seeking to comment that discussing a case prior to the hearing is prohibited and shall disclose at the hearing the substance and source of any such unsolicited comment. No Board member shall discuss any case with any parties thereto prior to the public hearing on that case; provided however, that members may receive and/or seek information pertaining to the case from any other member of the Board, the Chief Zoning Enforcement Officer, or its Executive Secretary prior to the hearing. (Amended 3/22/89). G. Members of the Board will not express individual opinions on the proper judgment of any case with any parties thereto prior to its determination of that case. Violation of this rule shall be cause for dismissal from the Board. 4. Meetings A. Meetings – Meetings of the Board may be called at any time by the Chairman and at such other times as the Board may determine. Notice of meetings to hear appeals shall be published once a week for two (2) successive calendar weeks in the local newspaper. Special meetings of the Board may be called by or at the request of the Chairman or any two members. For special meetings, the Board shall cause written notice of the meeting stating its purpose: (a) To be posted on the principal bulletin board of the Board, or if the Board has no such bulletin board, at the door of its usual meeting room; and (b) to be mailed or delivered to each newspaper, wire service, radio station and television station, which has filed a written request for notice with the Secretary to the Board or with some person designated by the Board. The Board shall also cause notice to be mailed or delivered to any person, in addition to the representatives of the media listed above, who has filed a written request with the clerk, secretary or other person designated by the Board. This notice shall be posted and mailed or delivered at least 48 hours before the time of the meeting. The Board may require each newspaper, wire service, radio station and television station submitting a written request for notice to renew the request annually. The Commission may charge a fee to persons other than the media, who request notice, of ten dollars ($10.00) per calendar year, and may require them to renew their requests quarterly. (Amended 11/22/83). B. Quorum - A quorum shall consist of four-fifths (4/5) of the membership of the Board. The concurring vote of four-fifths (4/5) of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of any County official acting under the authority of an ordinance for the which the Board is the designated appellant review forum; to decide in favor of the applicant any matter which it is required to pass under such ordinances; or to effect any variation form the terms of the ordinances. (Amended 3/22/89). C. Conduct of Meetings – All meetings shall be open to the public, subject to these rules. The order of business shall be as follows: (a) roll call; (b) reading of minutes of previous meetings; (c) hearing of cases; (d) reports of committees; (e) unfinished business; (f) new business; (g) consideration and determination of cases heard previously. (8/24/82). 5. Appeals and Applications A. Types of Appeals – The Board shall hear and decide all appeals from and review any order, requirement, decision, or determination made by any County official acting under the authority or an ordinance for which the Board is the designated appellant forum. Any person aggrieved of such officer, department, board or bureau of the County may appeal. The Board does not have appellant jurisdiction on matters relating to the enforcement of the North Carolina Building Code. In deciding appeals, it may hear both those based upon an allegedly improper or erroneous interpretation of an ordinance and those based upon alleged hardships resulting from strict interpretation of the Zoning Ordinance. (Amended 3/22/89). B. Procedure for Filing Appeals – No appeal shall be heard by the Board unless notice thereof is filed within fourteen (14) days after the interested party or parties receive notice of the order, requirement, decision or determination by the County official. For appeals of building permits, constructive receipt of notice is deemed to have occurred the day following its issuance. All applications for the hearings shall be filed with the Chief Zoning Enforcement Officer. All applications shall be made upon the form furnished for that purpose, and all required information shall be provided thereon before an appeal or an application shall be considered as having been filed. The filing deadline shall be 4:00 p.m. sixteen (16) calendar days prior to the regularly scheduled meeting. Any resident of the area of zoning jurisdiction may appeal from any order or act of the County official pertaining to enforcement of the Zoning Ordinance. Any public or private, profit or non-profit corporation shall append to the appeal the corporate resolution which authorizes the appeal. This resolution shall state the name of the person authorized to act for the corporation, shall be signed by the President, attested by the Secretary, and shall bear the corporate seal. (Amended 5/22/84 & 3/22/89). C. Fees – No application or notice of appeal shall be considered as having been completed until there has been paid to the County of New Hanover a filing fee established by the County Commissioners to cover the cost of providing notice and such further investigation or verification of the application as is necessary. (Amended 8/2/82 – County Commissioners). D. Hearings – (1) Time – The Board shall meet once a month on a regular day of a regular week. Completed applications for hearings shall be scheduled for the first regularly scheduled hearing which occurs sixteen (16) calendar days after receipt of the application. Hearings may be scheduled or rescheduled to a later date upon request of the applicant and approved by the Board Chairman. (Amended 3/22/89). (2) Notice – The Board shall give public notice of all hearings by all the following means: (a) by publishing or advertising notice of the hearing in a newspaper of general circulation in the County of New Hanover once a week for two (2) successive calendar weeks; (b) by mailing notices of the hearing to the parties to the action at least one (1) week prior to the hearing; and (c) by mailing notices of the hearing to the residents of all properties adjoining any portion of the property which is the subject of the action at least one (1) week prior to the hearing. All such notices shall state the location of the building or lot, the general nature of the question involved, and the time and place of the hearing. (3) Conduct of Hearing – Any party may appear in person or by agent or by attorney at the hearing. The order of business for each hearing shall be as follows: (a) the Chairman, or such person as the Chairman shall direct, shall give a preliminary statement of the case; (b) the applicant may present arguments and relevant evidence in support of his or her case or application; (Amended 3/22/89) (c) persons opposed to granting the application may present argument and relevant evidence against the application; (Amended 3/22/89) (d) the County official from whom the appeal is taken, may present relevant evidence in support of the appealed order, requirement, decision or determination; (Amended 3/22/89) (e) all parties to the proceeding shall be permitted to present rebuttals to opposing testimony; and (Amended 3/22/89) (f) the Chairman may summarize the evidence which has been presented, giving the parties an opportunity to make objections or corrections. Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law. The Board may, in its discretion, view the premises and call and examine witnesses to obtain additional facts in the matter before arriving at a determination of the case. All witnesses before the Board shall be place under oath and the opposing party may cross-examine them. (Amended 11/22/83 & 3/22/89). (4) Re-hearings – An application for a rehearing may be made in the same manner as provided for an original hearing. Evidence in support of the application shall initially be limited to that which is necessary to enable the Board to determine whether there has been substantial change in the facts, evidence or conditions in the case. A rehearing shall be denied by the Board if in its judgment there has been no substantial change in the facts, evidence or conditions in the case. If the Board finds that there has been such a change, it shall thereupon treat the request in the same manner as any other application. E. Decisions - (1) Time – Decision by the Board shall be made not more than thirty days from the time of the hearing. (2) Form – Written notice of the decision in a case shall be given to the applicant by the Executive Secretary as soon as practicable after the cases have been decided. The final decision of the Board shall be shown in the record of the case as entered in the minutes of the Board and the Executive Secretary upon approval of the minutes by the Board. The record shall show the reasons for the decision, with a summary of evidence introduced and the findings of fact made by the Board. (a) Variances – Where a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the appeal was based and which the Board finds to exist. The decision may reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from. The record shall state in detail what, if any, conditions and safeguards are imposed by the Board in connection with the granting of a variance. (Amended 11/22/83). (3) Expiration of permits – Unless otherwise specified, any order or decision of the Board granting a variance or a special use permit shall expire if a building permit or certificate of occupancy for such use is not obtained by the applicant within two (2) years from the date of the decision. (Amended 3/22/94). (4) Voting at Hearings - the concurring vote of four-fifths (4/5) of the members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the County official; to decide in favor of the applicant any matter which it is required to pass under the zoning ordinance; or to effect any variation in such ordinance. (5) Public Record of Decision – The decisions of the Board as filed in its minutes shall be a public record, available for inspection at all reasonable time. 6.5. Annual Report to Planning Commission Board and County Commissioners The Board shall prepare and submit in January of every year, to the Board of County Commissioners and the New Hanover County Planning Board a report of its activities for the prior year then ending. Such a report shall contain a statement of the number of cases heard and a summary of the action taken, along with any other matters which the Board deems appropriate for inclusion in such report. (Amended 11/22/83). 7.6. Amendments These rules may, within the limits allowed by law, be amended at any time by an affirmative vote of not less than four-fifths (4/5) of the members of the Board.