Board of Adjustment Information, etc.

Composition

  1. The Board of Adjustment shall consist of seven members and two alternate members of the Planning Board.
  2. Tenure. Members of the Board of Adjustment shall be appointed to serve terms of three (3) years, and until their respective successors have been appointed and qualified. The terms of the original members may be staggered so that all terms do not expire simultaneously. vacancies shall be filled for the unexpired term only.
  3. The Board of Adjustment shall elect one (1) member to serve as chair of the board and preside over its meetings and may create and fill such offices and committees as it may deem necessary. The term of the chair and other offices shall be for one (1) year, with eligibility for reelection to a second term. The chairman or any member temporarily acting as chairman is authorized to subpoena witnesses and to administer oaths to any witnesses in any matter coming before the board. 
  4. Faithful attendance at the meetings of the Board is considered a prerequisite for maintenance of membership on the Board. No member may serve more than three (3) consecutive terms or total of ten (10) years on the Board. A former member may serve for another three (3) terms or a total of ten (10) years after two (2) year consecutive waiting period. During the waiting period, the citizen may serve on another board, commission, committee or authority.

Powers and Duties

When sitting as the Board of Adjustment, the Board shall have the following powers and duties:

  1. Administrative review. To hear and decide appeals where it is alleged by applicant that there is error in any order, requirement, permit, decision, determination, or refusal made by the administrative officer in the carrying out or enforcement of any provision of this chapter. The Board may reverse or affirm, wholly or partly, or may modify the order, requirements, decision, or determination appealed from, and shall make any order, requirement, decision, or determination that in its opinion ought to be made in the premises. To this end, the Board shall have all the powers of the officer from whom the appeal is taken. An appeal to the Board of Adjustment shall be conducted in accordance with the provisions of Art. XIV, Part 1, section 17-1400.
  2. Variances. To authorize upon appeal in specific cases such variances from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship. Requests for variances shall be processed and considered in accordance with the provisions of Art. XIV, Part 1, section 17-1401, "Variances."
  3. Interpretations. The Board of Adjustment is authorized to interpret the zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions in accordance with section Art. XIV, Part, section 17-1403, "Special Exceptions."
  4. Special Exceptions. The Board of Adjustment is authorized upon appeal in specific cases special exceptions from the terms of this chapter as will not be contrary to the public interest in accordance with section Art. XIV, Part 1, section 17-1403, "Special Exceptions."
  5. Voting. The concurring vote of four-fifths of the members of the Board shall be necessary to grant a variance from the provisions of this chapter. The majority vote of the members of the Board shall be necessary to reverse any order, requirement, decision, or determination of any administrative official charged with the enforcement of this chapter, or decide in favor of the applicant any matter upon which it is required to pass under any ordinance. For the purposes of this subsection, vacant positions on the Board of Adjustment 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 supermajority. A failure to vote by a member who is physically present at the Board meeting and who has not recused or excused from the voting shall be recorded as an affirmation vote.
  6. Conflicts of interest. A member of the Board shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. If an objection is raised to a member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection. Impermissible violations of due members shall by majority vote rule on the objection. Impermissible violations of due process include, but are not limited to:
    • When the member has a direct financial interest in the outcome of the matter at issue; or
    • When the matter at issue involves the member's own official conduct; or
    • When Participation in the matter might violate the letter or spirit of a member's code of professional responsibility, or
    • When a member has such close familial, business or other ties to the applicant that the member cannot reasonably be expected to exercise sound judgment in the public interest, or
    • When a member has a fixed opinion prior to hearing the matter that is not susceptible to change, or 
    • When a member has undisclosed ex parte communications. ("Ex parte communication" means a communication with only one party or side in a disputed case.)
  7. Oaths. The Chairman or any member temporarily acting as Chairman is authorized in his or her official capacity to administer oaths to witnesses in any matter coming before the Board.
  8. Subpoenaing witnesses.
    • The Chair may subpoena witnesses: The chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be appealed to the full Board of Adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the Board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties. (See section 17-1400 Appeals).
    • Other parties may request a subpoena: To request issuance of a subpoena, persons wit standing under section 17-1400 "Appeals" (F) "Other Persons with Standing to Appeal", may make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled.
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