WSMU_MNTA_WSWP Ordinance_20210826 (3)

ARTICLE XII Board of Adjustment
12A Establishment of Board of Adjustment
A Board of Adjustment is hereby established. Said board shall consist of nine
(9) regular members and two (2) alternate members. Members of the Board
of Adjustment shall be appointed by the Board of Commissioners of the City
of Mount Airy. Terms are staggered so that some terms expire each year.
Members and alternate members may be reappointed for any number of
successive terms.
All members shall have equal rights, privileges and duties in all matters.
The concurring vote of four -fifths (4/5ths) of the board shall be necessary to
grant a Variance. 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. 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 if there are no qualified
alternates available to take the place of such members.
The Chair of the Board of Adjustment, or in his/her absence the acting Chair,
may appoint the alternates to sit for any regular members in case of the
absence or disqualification of any regular members. In such case, the
alternate members shall have the same powers and duties of the regular
members they are replacing during such time. In no case, however, shall
more than nine (9) regular members or combination of regular members and
the alternate members be empowered to vote on any matter that comes
before the board.
12.2 Proceedings of the Board of Adjustment
The Board of Adjustment shall elect a Chair and a Vice -Chair from its
members who shall serve for one (1) year or until re-elected or until their
successors are elected. The board shall appoint a Secretary, who may be
municipal officer, an employee of the City, or a member of the Board of
Adjustment. The board shall adopt rules and by-laws in accordance with the
provisions of this Ordinance and Chapter 160D of the General Statutes of
North Carolina. Meetings of the board shall be held at the call of the Chair
12-1

and at such other times as the board may determine. The Chair, or in his
absence the Vice -Chair, may administer oaths and compel the attendance of
witnesses by Subpoena. All meetings of the board shall be open to the public.
12.3 Appeals, Hearings and Notice
An Appeal from the decision of the Zoning Administrator may be taken by the
aggrieved party to the Board of Adjustment. Such Appeal shall be taken
within thirty (30) days by filing with the Zoning Administrator a notice of
Appeal specifying the grounds thereof. The Zoning Administrator shall
forthwith transmit to the board all papers constituting the record upon which
the action appealed from was taken. The Board of Adjustment shall fix a
reasonable time for hearing the Appeal, give public notice thereof, as well as
due notice to the parties in interest and decide the same within a reasonable
time. At the hearing, any party may appear in person or by agent or
attorney.
On all Appeals, application and other matters brought before the Board of
Adjustment, said board shall inform in writing all the parties involved of its
decision and the reasons thereof.
12.4 Stay of Proceedings
An Appeal stays all legal proceedings in furtherance of the action appealed
from, unless the Zoning Administrator certifies to the Board of Adjustment
after the Notice of Appeal shall have been filed with him, that by reason of
facts stated in the certificate a stay would, in his opinion, cause imminent
peril to life and property. In such case, proceedings shall not be stayed
otherwise than by a restraining order which may be granted by the Board of
Adjustment or by a court or record on application, on notice to the Zoning
Administrator, on due cause shown.
12.5 Powers and Duties of the Board of Adjustment
The Board of Adjustment shall have the following powers and duties.
A. Administrative Review
To hear and decide Appeals where it is alleged there is error in any
order, requirement, decision or determination made by the Zoning
Administrator in the enforcement of this Ordinance.
12-2

B. Change -in -Kind of Non -Conforming Use
The board may permit change in use from one non -conforming use to
another as provided for in Section 11.5.
C. Zoning Permits with Vested Rights
To hear and decide Zoning Permits with Vested Rights in accordance
with Article XIV of this Ordinance.
D. Special Use Permits
To hear and decide, in particular cases, and subject to appropriate
conditions and safeguards, permits for special uses as authorized by
Article VI. In granting a Special Use Permit, the board shall make the
following affirmative findings:
1. The use requested is among those listed as an eligible special use in
the zoning district in which the subject property is located.
2. That the special use will not materially endanger the public health
or safety if located where proposed and developed according to the
plan as proposed;
3. That the special use meets all required conditions and
specifications;
4. That the special use will not substantially injure the value of
adjoining or abutting property or that the use is a public necessity;
and,
5. That the location and character of the special use if developed
according to the plan as proposed 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 City and its environs.
All Special Use Permit applications within Historic Landmarks and
Preservation Overlay Districts shall be reviewed by the Historic
Preservation Commission at its next regular meeting after the
application has been submitted in accordance with the requirements of
this Ordinance. The Historic Preservation Commission shall forward its
comments and recommendations within forty-five (45) days of the filing
of the application to the Board of Adjustment.
12-3

In granting a Special Use Permit, the board may impose such additional
restrictions and requirements upon such Permit as it may deem
necessary in order that the purpose and intent of this Ordinance are
served, public welfare secured and substantial justice done. If all
requirements and conditions are accepted by the applicant, the board
shall authorize the issuance of the Special Use Permit, otherwise the
Permit shall be denied. Any Special Use Permit so authorized shall be
perpetually binding upon the property included in such Permit unless
subsequently changed or amended by the board, as provided for in this
Article.
The board may change or amend any Special Use Permit, after a public
hearing and subject to the same consideration as provided for in this
Article for the original issuance of Special Use Permit.
No proposal to amend or change any Special Use Permit shall be
considered within three (3) months of the date of the original
authorization of such Permit or within three (3) months of hearing of
any previous proposal to amend or change any such Permit.
E. Variances
When unnecessary hardships would result from carrying out the strict
letter of the Zoning Ordinance, the Board of Adjustment shall vary any
of the 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.
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 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.
12-4

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.
No change in permitted uses may be authorized by a Variance.
Appropriate conditions may be imposed on any Variance, provided that
the conditions are reasonably related to the Variance.
F. Variances from Watershed Overlay District Requirements
The Board of Adjustment may authorize Variances from the specific
requirements of the Watershed Overlay Districts in the same manner
and subject to the same procedures and requirements of this Ordinance
for authorizing other Variances, provided that:
1. A notice be mailed by first class mail to all other local governments
having watershed regulation jurisdiction within the particular
watershed where the Variance is requested and to each entity using
that water supply for consumption.
2. If the variance request is for a Major Variance as defined herein,
the following procedure shall apply. If the Board of Adjustment
decides in favor of granting the Major Variance, the board shall
then prepare a preliminary record of the hearing and submit it to
the North Carolina Environmental Commission (EMC) for review
and action. If the board does not decide in favor or granting the
Major Variances such unfavorable action shall constitute denial.
3. In the event of a favorable action by the board on a Major Variance,
the board shall cause the record of their hearing to be promptly
submitted to the EMC. The record of the hearing shall include but
not be limited to:
a) The Variance application;
b) The hearing notices;
c) The evidence presented;
d) Motions, offers of proof, objections to evidence, and rulings on
them;
e) Findings and exception; and
f) The action of the Board including any conditions proposed.
12-5

4. If the EMC approves the Major Variance or approves with
conditions or stipulations added, the EMC shall prepare a decision,
which authorizes the Board of Adjustment to issue a final decision,
which would include any conditions or stipulations, added by the
EMC. If the EMC denies the Major Variance, then the EMC shall
prepare and transmit it to the Board of Adjustment. The board
shall then prepare a final decision denying the Major Variance.
G. Interpretation of the Watershed Boundaries
The Board of Adjustment shall have the power to make adjustments to
the exterior boundary of Watershed Overlay Districts by removing all or
part of a piece of property from a Watershed Overlay District where it
finds that all or part of such property actually lies outside the drainage
area of such watershed. In any case where there is a dispute as to
whether a property or any part of a property that is shown on the
Official Zoning Map as being in a watershed overlay district actually
drains to that watershed, the Board of Adjustment shall, upon appeal by
the owner, make a determination as to the facts of the matter as it
affects the subject property.
In determining whether a property or part of a property drains to the
watershed as indicated on the Map, the Board of Adjustment shall base
its determination on actual field conditions of the property as
determined by topographical conditions. In making its determination,
the Board of Adjustment may require the appellant to produce relevant
expert testimony and exhibits.
After hearing such appeal, the board shall find that the subject property
(all or part) is either in the designated watershed or out of the
designated watershed. If the board shall find that the subject property
is out of the designated watershed, the board shall order the Map to be
adjusted to show the subject property to be outside the designated
watershed. In making such order, the Board of Adjustment shall
designate the watershed in which the subject property is located. If such
designation causes the subject property to be located in another
watershed overlay district, the order shall cause the Map to be adjusted
to show the same.
12-6

H. Variance from Flood Damage Prevention Overlay District Requirements
The board may authorize Variances from the specific requirements of
the Flood Damage Prevention Overlay District in the same manner and
subject to the same procedures and requirements of this Ordinance for
authorizing other Variances.
1. In passing upon such Variances, the board shall consider all
technical evaluations and relevant factors, and:
• The danger that materials may be swept onto other lands to
the injury of others;
• The danger to life and property due to flooding or erosion
damage;
• The susceptibility of the proposed facility and its contents to
flood damage and the effect of such damage on the individual
owner;
• The importance of the services provided by the proposed
facility to the community;
• The necessity to the facility of a waterfront location, where
applicable;
• The availability of alternative locations, not subject to flooding
or erosion damage, for the proposed facility;
• The compatibility of the proposed use with existing and
anticipated development;
• The relationship of the proposed use to the Comprehensive
Plan and Floodplain Management Program for that area;
• The safety of access to the property in times of flood for
ordinary and emergency vehicles;
• The expected heights, velocity, duration, rate of rise and
sediment transport of the floodwaters and effects of wave
action if applicable, expected at the site; and
• The costs of providing governmental services during and after
flood conditions, including maintenance and repair of public
12-7

utilities and facilities such as sewer, gas, electrical, and water
systems, and streets and bridges.
2. The findings listed above shall be submitted to the Board of
Adjustment in writing and included in the application for a
Variance.
3. Upon consideration of the factors listed above, and the purposes of
this Section, the board may attach such conditions to the granting
of Variances, as it deems necessary to further the purposes of this
Section.
4. Variances shall not be issued within any designated floodway if
there is any increase in flood levels during the base flood discharge.
5. Conditions for variances are as follows:
• Variances may not be issued when the Variance will render
the structure in violation of other federal, state, or local laws,
regulations, or ordinances.
• Variances shall only be issued upon a determination that the
variance is the minimum necessary, considering the flood
hazard, to afford relief.
• Variances shall only be issued upon:
- A showing of good and sufficient cause;
- A determination that failure to grant the Variance would
result in exceptional hardship; and
- A determination that the granting of a Variance will not
result in increased [flood heights, additional threats to
public safety, extraordinary public expense, create]
nuisance, cause fraud on or victimization of the public, or
conflict with existing local laws or ordinances.
6. Any applicant to whom a Variance is granted shall be given written
notice specifying the difference between the base flood elevation
and the elevation to which the structure is to be built and stating
that the cost of flood insurance will be commensurate with the
increased risk resulting from the reduced lowest flood elevation.
12-8

Such notification shall be maintained with a record of all variance
actions.
7. The Administrator shall maintain the records of all appeal actions
and report any variances to the Federal Emergency Management
Agency upon request.
I. Act on Appeals in the Historic Landmarks and Preservation Overlay
District
The board shall have the following specific powers and duties in the
Historic Landmarks and Preservation Overlay District:
1. Restoration or Reconstruction
Where it is found by the Historic Preservation Commission that an
application for a Zoning Clearance Permit covers activity
constituting an authentic restoration or reconstruction in the same
location as the original location and in the original conformation of
a structure of historic and/or architectural significance to the
Historic Landmark or District, such activity may be approved by
the Board of Adjustment following approval by the Historic
Preservation Commission, even though it does not meet
dimensional regulations.
The Board of Adjustment, in approving such authentic
reconstruction or restoration, may attach reasonable and
appropriate conditions to the approval, such that the public health,
safety and general welfare shall be protected.
In addition to any other condition the Board of Adjustment may
make regarding such authorization, any items restored,
reconstructed, or maintained on, over, or within a public sidewalk,
public alley area or other public way shall be the responsibility of
the owner, his heirs and assigns. The owner's restoration,
reconstruction, or maintenance of any such item within such area
shall constitute the owner's agreement to protect and hold the City
of Mount Airy blameless against any and all liability, cost, damage,
or expense suffered by the City of Mount Airy as a result of or
growing out of the restoration, reconstruction, or maintenance
12-g

thereof. Such items, so approved may be lawfully restored,
reconstructed, or maintained. Any such items projecting onto the
vehicular travel way of a street or alley shall be, at its lowest point,
twelve (12) feet above the travel way.
2. Parking Waiver
Where the Historic Preservation Commission, in considering an
application for a Certificate of Appropriateness, shall make a
written finding that the number of off-street parking spaces
required by this Ordinance for the building or structure for which a
Building Permit is requested would render the building
incongruous with the historic aspects of the landmark or district it
shall recommend to the Board of Adjustment a waiver, in part or in
whole, of the off-street parking requirements. The Board of
Adjustment may authorize a lesser number of off-street parking
spaces provided (a) the Board finds that the lesser number of off-
street parking spaces will not create problems due to increased on -
street parking, and (b) will not constitute a threat to the public
safety.
3. Appeal from Granting or Denial of Certificate of Appropriateness
An Appeal may be taken to the Board of Adjustment from the
Commission's action in granting or denying an application for a
Certificate of Appropriateness. Such appeal may be taken by any
aggrieved party, shall be taken within times prescribed by the
Historic Preservation Commission by general rule, and shall be in
the nature of certiorari.
Any appeal from the Board of Adjustment's decision in any case shall be
heard by the Superior Court of Surry County.
12.6 Appeals from the Board of Adjustment
Any person or persons, jointly or severally, aggrieved by any decision of the
board, any taxpayer, or any officer, department, board or bureau of the
jurisdiction of this Ordinance may, within thirty (30) days after the filing of
the decision in the office of the board, but not thereafter, present to a court of
competent jurisdiction a petition duly verified setting forth that such decision
is illegal, in whole or part, specifying the ground of illegality, whereupon such
12-10

decision of said board shall be subject to review by certiorari as provided by
law.
12-11