(a) The board ofcommissioners may provide for the appointment and compensation, if any, of aboard of adjustment consisting of at least five members, each to be appointedfor three years. In appointing the original members of the board, or in fillingvacancies caused by the expiration of the terms of existing members, the boardof commissioners may appoint some members for less than three years to the endthat thereafter the terms of all members do not expire at the same time. Theboard of commissioners may provide for the appointment and compensation, ifany, of alternate members to serve on the board in the absence or temporarydisqualification of any regular member or to fill a vacancy pending appointmentof a member. Alternate members shall be appointed for the same term, at thesame time, and in the same manner as regular members. Each alternate member,while attending any regular or special meeting of the board and serving onbehalf of a regular member, has and may exercise all the powers and duties of aregular member. If the board of commissioners does not zone the entireterritorial jurisdiction of the county, each designated zoning area shall haveat least one resident as a member of the board of adjustment.
A county may designate aplanning board or the board of county commissioners to perform any or all ofthe duties of a board of adjustment in addition to its other duties.
(b) A zoning ordinanceor those provisions of a unified development ordinance adopted pursuant to theauthority granted in this Part shall provide that the board of adjustment shallhear and decide appeals from and review any order, requirement, decision, ordetermination made by an administrative official charged with the enforcementof that ordinance. Any person aggrieved or any officer, department, board, orbureau of the county may take an appeal. Appeals shall be taken within timesprescribed by the board of adjustment by general rule, by filing with theofficer from whom the appeal is taken and with the board of adjustment a noticeof appeal, specifying the grounds thereof. The officer from whom the appeal istaken shall forthwith transmit to the board all the papers constituting therecord upon which action appealed from was taken. An appeal stays allproceedings in furtherance of the action appealed from, unless the officer fromwhom the appeal is taken certifies to the board of adjustment, after notice ofappeal has been filed with him, that because of facts stated in the certificatea stay would, in his opinion, cause imminent peril to life or property or thatbecause the violation charged is transitory in nature a stay would seriouslyinterfere with enforcement of the ordinance. In that case proceedings may notbe stayed except by a restraining order, which may be granted by the board ofadjustment or by a court of record on application, on notice to the officerfrom whom the appeal is taken and on due cause shown. The board of adjustmentshall fix a reasonable time for the hearing of the appeal, give due notice ofthe appeal to the parties, and decide the appeal within a reasonable time. Theboard of adjustment may reverse or affirm, in whole or in part, or may modifythe order, requirement, decision, or determination appealed from, and shallmake any order, requirement, decision, or determination that in its opinionought to be made in the circumstances. To this end the board has all of thepowers of the officer from whom the appeal is taken.
(c) The zoningordinance may provide that the board of adjustment may permit specialexceptions to the zoning regulations in specified classes of cases orsituations as provided in subsection (d) of this section, not includingvariances in permitted uses, and that the board may use special and conditionaluse permits, all to be in accordance with the principles, conditions,safeguards, and procedures specified in the ordinance. The ordinance may alsoauthorize the board to interpret zoning maps and pass upon disputed questionsof lot lines or district boundary lines and similar questions that may arise inthe administration of the ordinance. The board shall hear and decide allmatters referred to it or upon which it is required to pass under the zoningordinance.
(d) When practicaldifficulties or unnecessary hardships would result from carrying out the strictletter of a zoning ordinance, the board of adjustment shall have the power tovary or modify any regulation or provision of the ordinance so that the spiritof the ordinance is observed, public safety and welfare secured, andsubstantial justice done. No change in permitted uses may be authorized byvariance. Appropriate conditions, which must be reasonably related to thecondition or circumstance that gives rise to the need for a variance, may be imposedon any approval issued by the board.
(e) The board ofadjustment, by a vote of four‑fifths of its members, may reverse anyorder, requirement, decision, or determination of an administrative officercharged with enforcing an ordinance adopted pursuant to this Part, or maydecide in favor of the applicant a matter upon which the board is required topass under the ordinance, or may grant a variance from the provisions of theordinance. For the purposes of this subsection, vacant positions on the board andmembers who are disqualified from voting on a quasi‑judicial matter shallnot be considered "members of the board" for calculation of therequisite supermajority if there are no qualified alternates available to takethe place of such members.
(e1) A member of theboard or any other body exercising quasi‑judicial functions pursuant tothis Article shall not participate in or vote on any quasi‑judicialmatter in a manner that would violate affected persons' constitutional rightsto an impartial decision maker. Impermissible conflicts include, but are notlimited to, a member having a fixed opinion prior to hearing the matter that isnot susceptible to change, undisclosed ex parte communications, a closefamilial, business, or other associational relationship with an affectedperson, or a financial interest in the outcome of the matter. If an objectionis raised to a member's participation and that member does not recuse himselfor herself, the remaining members shall by majority vote rule on the objection.
(e2) Each decision of theboard is subject to review by the superior court by proceedings in the natureof certiorari. Any petition for review by the superior court shall be filedwith the clerk of superior court within 30 days after the decision of the boardis filed in such office as the ordinance specifies, or after a written copythereof is delivered to every aggrieved party who has filed a written requestfor such copy with the secretary or chairman of the board at the time of itshearing of the case, whichever is later. The decision of the board may bedelivered to the aggrieved party either by personal service or by registeredmail or certified mail return receipt requested.
(f) The chairman ofthe board of adjustment or any member temporarily acting as chairman may in hisofficial capacity administer oaths to witnesses in any matter coming before theboard.
(g) The board ofadjustment may subpoena witnesses and compel the production of evidence. If aperson fails or refuses to obey a subpoena issued pursuant to this subsection,the board of adjustment may apply to the General Court of Justice for an orderrequiring that its order be obeyed, and the court shall have jurisdiction toissue these orders after notice to all proper parties. No testimony of anywitness before the board of adjustment pursuant to a subpoena issued inexercise of the power conferred by this subsection may be used against thewitness in the trial of any civil or criminal action other than a prosecutionfor false swearing committed on the examination. Any person who, while underoath during a proceeding before the board of adjustment, willfully swearsfalsely, is guilty of a Class 1 misdemeanor. (1959, c. 1006, s. 1; 1965, c. 194, s. 4; 1967, c.1208, ss. 5‑7; 1973, c. 822, s. 1; 1979, c. 611, s. 4; c. 635; 1981, c.891, s. 8; 1985, c. 397, s. 1; 2005‑418, s. 8(b); 2009‑421, s. 6.)
(a) The board ofcommissioners may provide for the appointment and compensation, if any, of aboard of adjustment consisting of at least five members, each to be appointedfor three years. In appointing the original members of the board, or in fillingvacancies caused by the expiration of the terms of existing members, the boardof commissioners may appoint some members for less than three years to the endthat thereafter the terms of all members do not expire at the same time. Theboard of commissioners may provide for the appointment and compensation, ifany, of alternate members to serve on the board in the absence or temporarydisqualification of any regular member or to fill a vacancy pending appointmentof a member. Alternate members shall be appointed for the same term, at thesame time, and in the same manner as regular members. Each alternate member,while attending any regular or special meeting of the board and serving onbehalf of a regular member, has and may exercise all the powers and duties of aregular member. If the board of commissioners does not zone the entireterritorial jurisdiction of the county, each designated zoning area shall haveat least one resident as a member of the board of adjustment.
A county may designate aplanning board or the board of county commissioners to perform any or all ofthe duties of a board of adjustment in addition to its other duties.
(b) A zoning ordinanceor those provisions of a unified development ordinance adopted pursuant to theauthority granted in this Part shall provide that the board of adjustment shallhear and decide appeals from and review any order, requirement, decision, ordetermination made by an administrative official charged with the enforcementof that ordinance. Any person aggrieved or any officer, department, board, orbureau of the county may take an appeal. Appeals shall be taken within timesprescribed by the board of adjustment by general rule, by filing with theofficer from whom the appeal is taken and with the board of adjustment a noticeof appeal, specifying the grounds thereof. The officer from whom the appeal istaken shall forthwith transmit to the board all the papers constituting therecord upon which action appealed from was taken. An appeal stays allproceedings in furtherance of the action appealed from, unless the officer fromwhom the appeal is taken certifies to the board of adjustment, after notice ofappeal has been filed with him, that because of facts stated in the certificatea stay would, in his opinion, cause imminent peril to life or property or thatbecause the violation charged is transitory in nature a stay would seriouslyinterfere with enforcement of the ordinance. In that case proceedings may notbe stayed except by a restraining order, which may be granted by the board ofadjustment or by a court of record on application, on notice to the officerfrom whom the appeal is taken and on due cause shown. The board of adjustmentshall fix a reasonable time for the hearing of the appeal, give due notice ofthe appeal to the parties, and decide the appeal within a reasonable time. Theboard of adjustment may reverse or affirm, in whole or in part, or may modifythe order, requirement, decision, or determination appealed from, and shallmake any order, requirement, decision, or determination that in its opinionought to be made in the circumstances. To this end the board has all of thepowers of the officer from whom the appeal is taken.
(c) The zoningordinance may provide that the board of adjustment may permit specialexceptions to the zoning regulations in specified classes of cases orsituations as provided in subsection (d) of this section, not includingvariances in permitted uses, and that the board may use special and conditionaluse permits, all to be in accordance with the principles, conditions,safeguards, and procedures specified in the ordinance. The ordinance may alsoauthorize the board to interpret zoning maps and pass upon disputed questionsof lot lines or district boundary lines and similar questions that may arise inthe administration of the ordinance. The board shall hear and decide allmatters referred to it or upon which it is required to pass under the zoningordinance.
(d) When practicaldifficulties or unnecessary hardships would result from carrying out the strictletter of a zoning ordinance, the board of adjustment shall have the power tovary or modify any regulation or provision of the ordinance so that the spiritof the ordinance is observed, public safety and welfare secured, andsubstantial justice done. No change in permitted uses may be authorized byvariance. Appropriate conditions, which must be reasonably related to thecondition or circumstance that gives rise to the need for a variance, may be imposedon any approval issued by the board.
(e) The board ofadjustment, by a vote of four‑fifths of its members, may reverse anyorder, requirement, decision, or determination of an administrative officercharged with enforcing an ordinance adopted pursuant to this Part, or maydecide in favor of the applicant a matter upon which the board is required topass under the ordinance, or may grant a variance from the provisions of theordinance. For the purposes of this subsection, vacant positions on the board andmembers who are disqualified from voting on a quasi‑judicial matter shallnot be considered "members of the board" for calculation of therequisite supermajority if there are no qualified alternates available to takethe place of such members.
(e1) A member of theboard or any other body exercising quasi‑judicial functions pursuant tothis Article shall not participate in or vote on any quasi‑judicialmatter in a manner that would violate affected persons' constitutional rightsto an impartial decision maker. Impermissible conflicts include, but are notlimited to, a member having a fixed opinion prior to hearing the matter that isnot susceptible to change, undisclosed ex parte communications, a closefamilial, business, or other associational relationship with an affectedperson, or a financial interest in the outcome of the matter. If an objectionis raised to a member's participation and that member does not recuse himselfor herself, the remaining members shall by majority vote rule on the objection.
(e2) Each decision of theboard is subject to review by the superior court by proceedings in the natureof certiorari. Any petition for review by the superior court shall be filedwith the clerk of superior court within 30 days after the decision of the boardis filed in such office as the ordinance specifies, or after a written copythereof is delivered to every aggrieved party who has filed a written requestfor such copy with the secretary or chairman of the board at the time of itshearing of the case, whichever is later. The decision of the board may bedelivered to the aggrieved party either by personal service or by registeredmail or certified mail return receipt requested.
(f) The chairman ofthe board of adjustment or any member temporarily acting as chairman may in hisofficial capacity administer oaths to witnesses in any matter coming before theboard.
(g) The board ofadjustment may subpoena witnesses and compel the production of evidence. If aperson fails or refuses to obey a subpoena issued pursuant to this subsection,the board of adjustment may apply to the General Court of Justice for an orderrequiring that its order be obeyed, and the court shall have jurisdiction toissue these orders after notice to all proper parties. No testimony of anywitness before the board of adjustment pursuant to a subpoena issued inexercise of the power conferred by this subsection may be used against thewitness in the trial of any civil or criminal action other than a prosecutionfor false swearing committed on the examination. Any person who, while underoath during a proceeding before the board of adjustment, willfully swearsfalsely, is guilty of a Class 1 misdemeanor. (1959, c. 1006, s. 1; 1965, c. 194, s. 4; 1967, c.1208, ss. 5‑7; 1973, c. 822, s. 1; 1979, c. 611, s. 4; c. 635; 1981, c.891, s. 8; 1985, c. 397, s. 1; 2005‑418, s. 8(b); 2009‑421, s. 6.)
(a) The board ofcommissioners may provide for the appointment and compensation, if any, of aboard of adjustment consisting of at least five members, each to be appointedfor three years. In appointing the original members of the board, or in fillingvacancies caused by the expiration of the terms of existing members, the boardof commissioners may appoint some members for less than three years to the endthat thereafter the terms of all members do not expire at the same time. Theboard of commissioners may provide for the appointment and compensation, ifany, of alternate members to serve on the board in the absence or temporarydisqualification of any regular member or to fill a vacancy pending appointmentof a member. Alternate members shall be appointed for the same term, at thesame time, and in the same manner as regular members. Each alternate member,while attending any regular or special meeting of the board and serving onbehalf of a regular member, has and may exercise all the powers and duties of aregular member. If the board of commissioners does not zone the entireterritorial jurisdiction of the county, each designated zoning area shall haveat least one resident as a member of the board of adjustment.
A county may designate aplanning board or the board of county commissioners to perform any or all ofthe duties of a board of adjustment in addition to its other duties.
(b) A zoning ordinanceor those provisions of a unified development ordinance adopted pursuant to theauthority granted in this Part shall provide that the board of adjustment shallhear and decide appeals from and review any order, requirement, decision, ordetermination made by an administrative official charged with the enforcementof that ordinance. Any person aggrieved or any officer, department, board, orbureau of the county may take an appeal. Appeals shall be taken within timesprescribed by the board of adjustment by general rule, by filing with theofficer from whom the appeal is taken and with the board of adjustment a noticeof appeal, specifying the grounds thereof. The officer from whom the appeal istaken shall forthwith transmit to the board all the papers constituting therecord upon which action appealed from was taken. An appeal stays allproceedings in furtherance of the action appealed from, unless the officer fromwhom the appeal is taken certifies to the board of adjustment, after notice ofappeal has been filed with him, that because of facts stated in the certificatea stay would, in his opinion, cause imminent peril to life or property or thatbecause the violation charged is transitory in nature a stay would seriouslyinterfere with enforcement of the ordinance. In that case proceedings may notbe stayed except by a restraining order, which may be granted by the board ofadjustment or by a court of record on application, on notice to the officerfrom whom the appeal is taken and on due cause shown. The board of adjustmentshall fix a reasonable time for the hearing of the appeal, give due notice ofthe appeal to the parties, and decide the appeal within a reasonable time. Theboard of adjustment may reverse or affirm, in whole or in part, or may modifythe order, requirement, decision, or determination appealed from, and shallmake any order, requirement, decision, or determination that in its opinionought to be made in the circumstances. To this end the board has all of thepowers of the officer from whom the appeal is taken.
(c) The zoningordinance may provide that the board of adjustment may permit specialexceptions to the zoning regulations in specified classes of cases orsituations as provided in subsection (d) of this section, not includingvariances in permitted uses, and that the board may use special and conditionaluse permits, all to be in accordance with the principles, conditions,safeguards, and procedures specified in the ordinance. The ordinance may alsoauthorize the board to interpret zoning maps and pass upon disputed questionsof lot lines or district boundary lines and similar questions that may arise inthe administration of the ordinance. The board shall hear and decide allmatters referred to it or upon which it is required to pass under the zoningordinance.
(d) When practicaldifficulties or unnecessary hardships would result from carrying out the strictletter of a zoning ordinance, the board of adjustment shall have the power tovary or modify any regulation or provision of the ordinance so that the spiritof the ordinance is observed, public safety and welfare secured, andsubstantial justice done. No change in permitted uses may be authorized byvariance. Appropriate conditions, which must be reasonably related to thecondition or circumstance that gives rise to the need for a variance, may be imposedon any approval issued by the board.
(e) The board ofadjustment, by a vote of four‑fifths of its members, may reverse anyorder, requirement, decision, or determination of an administrative officercharged with enforcing an ordinance adopted pursuant to this Part, or maydecide in favor of the applicant a matter upon which the board is required topass under the ordinance, or may grant a variance from the provisions of theordinance. For the purposes of this subsection, vacant positions on the board andmembers who are disqualified from voting on a quasi‑judicial matter shallnot be considered "members of the board" for calculation of therequisite supermajority if there are no qualified alternates available to takethe place of such members.
(e1) A member of theboard or any other body exercising quasi‑judicial functions pursuant tothis Article shall not participate in or vote on any quasi‑judicialmatter in a manner that would violate affected persons' constitutional rightsto an impartial decision maker. Impermissible conflicts include, but are notlimited to, a member having a fixed opinion prior to hearing the matter that isnot susceptible to change, undisclosed ex parte communications, a closefamilial, business, or other associational relationship with an affectedperson, or a financial interest in the outcome of the matter. If an objectionis raised to a member's participation and that member does not recuse himselfor herself, the remaining members shall by majority vote rule on the objection.
(e2) Each decision of theboard is subject to review by the superior court by proceedings in the natureof certiorari. Any petition for review by the superior court shall be filedwith the clerk of superior court within 30 days after the decision of the boardis filed in such office as the ordinance specifies, or after a written copythereof is delivered to every aggrieved party who has filed a written requestfor such copy with the secretary or chairman of the board at the time of itshearing of the case, whichever is later. The decision of the board may bedelivered to the aggrieved party either by personal service or by registeredmail or certified mail return receipt requested.
(f) The chairman ofthe board of adjustment or any member temporarily acting as chairman may in hisofficial capacity administer oaths to witnesses in any matter coming before theboard.
(g) The board ofadjustment may subpoena witnesses and compel the production of evidence. If aperson fails or refuses to obey a subpoena issued pursuant to this subsection,the board of adjustment may apply to the General Court of Justice for an orderrequiring that its order be obeyed, and the court shall have jurisdiction toissue these orders after notice to all proper parties. No testimony of anywitness before the board of adjustment pursuant to a subpoena issued inexercise of the power conferred by this subsection may be used against thewitness in the trial of any civil or criminal action other than a prosecutionfor false swearing committed on the examination. Any person who, while underoath during a proceeding before the board of adjustment, willfully swearsfalsely, is guilty of a Class 1 misdemeanor. (1959, c. 1006, s. 1; 1965, c. 194, s. 4; 1967, c.1208, ss. 5‑7; 1973, c. 822, s. 1; 1979, c. 611, s. 4; c. 635; 1981, c.891, s. 8; 1985, c. 397, s. 1; 2005‑418, s. 8(b); 2009‑421, s. 6.)
