AN ORDINANCE PROVIDING FOR ADMINISTRATION OF THE TOWN OF DUCK;
PROVIDING FOR THE FORM OF ORDINANCES; AUTHORIZING THE CREATION OF REGULATORY TEMPLATES; AND ESTABLISHING A PLANNING BOARD AND BOARD OF ADJUSTMENT FOR THE TOWN
Ordinance No. 02-02
WHEREAS, pursuant to N.C. Gen. Stat. §160A-146 a town council may create, change, abolish, and consolidate offices, positions, departments, boards, commissions, and agencies of the town government and generally organize and reorganize the town government in order to promote the orderly and efficient administration of town affairs; and
WHEREAS, pursuant to N.C. Gen. Stat. §160A-361 a town may by ordinance create or designate a planning board to make various studies of the town, determine objectives to be sought in the development of the town, prepare and adopt plans for achieving such objectives, develop and recommend policies and ordinances to carry out plans in an orderly and efficient manner; and
WHEREAS, pursuant to N.C. Gen. Stat. §160A-388 the town council may provide for the appointment of a board of adjustment to hear and decide appeals from and review any order, requirement, decision , or determination made by an administrative official charged with the enforcement of a zoning ordinance adopted by the town; and
WHEREAS, the town council finds and determines that the adoption of this ordinance is necessary and expedient.
NOW, THEREFORE, BE IT ORDAINED by the Town Council for the Town of Duck, North Carolina as follows:
ARTICLE I. IN GENERAL
Section 1. Ordinances.
(a) Proposal in writing; approval of form by town attorney. Every ordinance amending or repealing any ordinance and every new ordinance shall be proposed in writing, signed by the council member presenting the same, and approved as to form by the town attorney.
(b) Procedure when amending or adding to this Code. Every ordinance introduced, if it proposes to amend or repeal any existing portion an existing ordinance, shall show by proper reference the ordinance, article, division and section proposed to be amended. In addition to such indication thereof, as may be contained in the text of such proposed ordinance, the same shall be shown in concise form above the ordinance.
(c) Filing after passage. Every ordinance passed by the council shall be immediately filed by the town clerk in a book provided for that purpose.
Section 2. Regulatory templates.
(a) Authority to permit. The council may, from time to time, authorize the printing of templates containing certain regulatory ordinances applicable within the town which ordinances should be brought to the attention of tourists, visitors and temporary residents of the town.
(b) Duty of town manager. Upon approval of the content of the regulatory ordinances to be printed on such template, the town manager shall cause to be printed in a permanent unerasable material in sufficient quantity to be posted in all rental properties, hotel rooms and units located within the town. The town manager shall distribute such templates, as from time to time may be authorized and printed, to individual owners, agents and realtors of rental properties in the town in sufficient quantities for the placement of the same in each hotel room or each rental cottage and unit located in the town.
(c) Duties of owners, agents, etc., of hotels, cottages, etc. Each owner, realtor or agent of rental cottages and units and each hotel owner or operator, receiving such templates shall cause one (1) template to be placed and maintained in a prominent position or place so as to be easily noticeable by the occupants thereof in each cottage, rental unit or apartment and in each hotel room or unit within fifteen (15) days of the delivery of the same to the office of such realtor, owner, operator or within fifteen (15) days of the depositing of such templates in the United States mail service, postage prepaid addressed to such realtor, owner or operator.
(d) Replacing lost, destroyed, etc., templates. Each owner, realtor, agent or operator shall, in the event any of such templates are lost or destroyed, notify the town manager who shall issue a replacement template which shall be posted within fifteen (15) days of such loss or destruction.
Section 3. Authorization for town manager to enter into certain contracts.
The town manager shall be authorized to enter into contracts for repair work requiring an estimated expenditure of public money in an amount not greater than twenty-five thousand dollars ($25,000.00), and for the purchase of apparatus, supplies, materials or equipment requiring an estimated expenditure of public money in any amount; provided however, that such expenditure shall not be made in an amount greater than that which has previously been budgeted and approved by the town council. Provided, further, that the town manager shall comply with all the requirements of law for the letting of public contracts and for purchases utilizing public funds. It is further provided that upon compliance with this section, the town manager shall have full authority to bind the town in such contract or purchase.
Section 4. Signing and countersigning of checks, etc.
(a) The finance officer of the town, is authorized to sign all such checks, drafts or other financial instruments as required by subsection (b) of section 159-25 of the General Statutes and the council shall designate another town officer or council member authorized to countersign all such checks, drafts and other financial instruments.
(b) In the event of the temporary absence or disability of the finance officer, financial instruments of the nature above-described shall be signed by the town manager acting as finance officer.
Section 5. Authorization for town manager to dispose of certain personal property.
The town manager shall be authorized to dispose of personal property after determining that the item or group of items to be disposed of has a fair market value not to exceed five thousand dollars ($5,000.00); that the property is no longer necessary for the conduct of public business; and, that sound property management principles and financial considerations indicate that the interests of the town would best be served by disposing of the property. It is further provided that upon compliance with this section, the town manager shall have full authority to dispose of surplus personal property.
ARTICLE II. OFFICERS AND EMPLOYEES
DIVISION 1. TOWN MANAGER
Section 6. Appointment; residency; powers, duties and responsibility generally.
The town manager shall be appointed by and serves at the pleasure of the council and need not be a resident of the town. The town manager shall be responsible for and supervise the operation of all departments of the town and shall have the powers and duties as set out in Section 7 of this ordinance.
Section 7. Powers and duties.
The town manager shall be the chief administrative officer of the town and with exception of the town attorney shall be responsible to the town council for administering all municipal affairs and shall have the following powers and duties:
(1) The town manager shall nominate all town officers, department heads and employees with the exception of the town attorney and town clerk, to the town council.
(2) The town manager shall direct and supervise the administration of all departments, offices and agencies of the town with the exception of the town attorney, subject to the general direction and control of the council.
(3) The town manager shall attend all meetings of the council and recommend any measures deemed expedient.
(4) The town manager shall cooperate with and provide liaison with the chief of police in seeing that the laws of the State of North Carolina, the town charter and the ordinances, resolutions and regulations of the council are faithfully executed within the town.
(5) The town manager shall prepare and submit the annual budget and capital program to the council.
(6) The town manager shall annually submit to the town council and make available to the public a complete report on the finances and administrative activities of the town as of the end of each fiscal year.
(7) The town manager shall make any other reports that the council may require concerning the operations of town departments, offices and agencies subject to the direction and control of the town manager.
(8) The town manager shall perform any other duties that may be required or authorized by the council.
DIVISION 2. TOWN ATTORNEY
Section 8. Appointment.
At the first meeting of the council after their election and qualification, or as soon thereafter as possible, they shall proceed to appoint a town attorney.
Section 9. Duties generally.
(a) It shall be the duty of the town attorney to:
(1) Prosecute and defend suits against the town;
(2) Advise the mayor, council members, town manager or any other officer of the town in regard to matters connected with the town's business;
(3) Attend meetings of the council when requested to do so by the council;
(4) Draw such deeds, contracts, bonds, notes and other legal papers as may be required for the proper conduct of the town's business;
(5) Draw all ordinances granting franchises;
(6) Approve all ordinances as to form.
(b) The duties of the town attorney specifically exclude advising the police department of the town, except as the town attorney may be retained on a case-by-case basis.
DIVISION 3. TOWN CLERK
Section 10. Position established; duties.
The position of town clerk is hereby established and the duties thereof shall be as follows, to:
(1) Give notice of meetings of the council;
(2) Keep a journal of the proceedings of the council;
(3) Be the custodian of all town records; and
(4) Perform any other duties that may be required by law or the council.
ARTICLE III. BOARDS, COMMISSIONS AND COMMITTEES
DIVISION 1. PLANNING BOARD
Section 11. Established; jurisdiction.
There is hereby established a board known as the Duck Planning Board, hereinafter referred to as the planning board, whose jurisdiction shall include the area within the corporate limits of the town.
Section 12. Composition; terms; vacancies; attendance of members.
The planning board shall be composed of five (5) members, who shall be real property owners of the town and shall be appointed by the council. The members shall be appointed for a term of three (3) years; provided that for the initial appointment of members, two (2) shall be appointed for a term of three (3) years, two (2) shall be appointed for a term of two (2) years and one (1) shall be appointed for a term of one (1) year.. Vacancies occurring for reasons other than expiration of terms shall be filled as they occur for the period of the unexpired term. Faithful attendance at the meetings of the planning board is considered a prerequisite for the maintenance of membership on the planning board.
Section 13. Chairman; officers; rules; records; meetings; quorum.
The planning board shall elect a chairman and create and fill such offices as it may determine. The term of the chairman and other officers shall be one (1) year, with eligibility for reelection. The planning board shall adopt rules for transaction of its resolutions, discussions, findings, and recommendations, which record shall be a public record. The planning board shall hold at least one (1) meeting monthly, and all of its meetings shall be open to the public. There shall be a quorum of three (3) members for the purpose of taking any official action required by this division.
Section 14. Powers and duties.
(a) It shall be the duty of the planning board to prepare plans and to coordinate the plans of the town and those of others so as to bring about a coordinated and harmonious development of the area. The planning board is hereby designated as the planning agency for the preparation of a zoning plan for the town under the authority of G.S. §160A-387. In addition, the planning board is empowered
(1) Acquire and maintain in current form such basic information and materials as are necessary to an understanding of past trends, present conditions and forces at work to cause changes in these conditions;
(2) Prepare and, from time to time, amend and revise a comprehensive and coordinated plan for the physical development of the area. The comprehensive plan shall be the planning board's recommendations to the town council for the development of the town including, among other things, the general location, character and extent of streets, bridges, parkways, playgrounds, parks and other public ways, grounds and open spaces; the general location and extent of public utilities and terminals, whether publicly or privately owned or operated, for water, light, sanitation, transportation, communication, power and other purposes; the removal, relocation, widening, narrowing, vacating, abandonment, change of use or extension of any of the foregoing ways, buildings, grounds, open spaces, property, utilities or terminals; and the most desirable pattern of land use within the area;
(3) Establish principles and policies for guiding action in the development of the area. The planning board may prepare a capital improvements program and report its recommendations to the council upon the extent, location and design of all public structures and facilities, on the acquisition and disposal of public properties and on the establishment of building lines, mapped street lines and proposals to change existing street lines in order to insure that the goals of the comprehensive plan are furthered by a coordinated and efficient expenditure of public funds;
(4) Prepare and recommend ordinances promoting orderly development of the area along the lines indicated in the comprehensive plan including a zoning ordinance and subdivision regulations. The planning board may initiate, from time to time, proposals for amendment of the zoning ordinance and of subdivision regulations based upon its studies and comprehensive plan. In addition, it shall review and make recommendations to the council concerning all proposed amendments to the zoning ordinance and subdivision regulations;
(5) Determine whether specific proposed developments referred to it by governmental or private agencies in the area conform to the principles and requirements of the comprehensive plan for the area and to make recommendations concerning them;
(6) Keep the council and the general public informed and advised as to these matters;
(7) Make any other recommendations which it sees fit for improving the development of the area;
(8) Perform any other duties which may lawfully be assigned to it.
(b) The planning board is authorized to appoint such committees and to authorize such expenditures as it may see fit, subject to limitation of funds provided for the planning board by the council in the town's annual budget.
(c) The planning board may set up special committees to assist it in the study of specific questions and problems.
DIVISION 2. BOARD OF ADJUSTMENT
Section 15. Board of adjustment established.
A board of adjustment is hereby established. The word "board" when used in this article shall be construed to mean the board of adjustment. The board shall have five (5) regular members and two (2) alternates who shall own real property in the town and shall be appointed by the town council. The term of office shall be for a period of three (3) years. Vacancies shall be filled for the unexpired term only. Members may be removed for cause by the town council upon written charges and after public hearing. The members of the board may be compensated according to a schedule adopted by the town council from time to time.
Section 16. Chairman of the board.
The board shall elect a chairman and create and fill such offices as it may determine. The term of the chairman and other officers shall be one (1) year, with eligibility for reelection. The board shall adopt rules for transaction of its resolutions, discussions, findings, and recommendations, which record shall be a public record.
Section 17. Meetings of the board.
All meetings of the board shall be held at a regular place and shall be open to the public. A quorum of five (5) members shall be present at the designated meeting place before a vote is taken or final disposition is made of any appeal or variance application upon which the board is required to pass. The board shall keep minutes of its proceedings, showing the vote of each member upon each question or, if absent or failing to vote, an indication of that fact. The final disposition of appeals shall be by recorded resolution indicating the reasons of the board. All of the minutes, deliberations and records of the board shall be a public record. In the event a regular member shall be absent, an alternate member shall be notified to serve in the place of the regular member.
Section 18. Powers and duties of the board of adjustment.
The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirement, decision or determination of the zoning administrator or building inspector, or to decide in favor of the applicant any matter upon which it is required to pass under this chapter or to affect any variation of this chapter.
(a) Administrative review and interpretation.
(1) The board of adjustment may hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter.
The board of adjustment shall hear and decide appeals and review any order, requirements, decision or determination made by an administrative official charged with the enforcement of the zoning ordinance for the Town of Duck. An appeal may be taken by a person aggrieved or by an officer, department, board or bureau of the municipality. The appeal, specifying its grounds, shall be filed with the board of adjustment and the officer from whom the appeal is taken within thirty (30) days of the action. The officer from whom the appeal is taken shall promptly transmit to the board of adjustment all papers constituting the record upon which the appealed action was taken.
An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment that such a stay would cause imminent peril to life or property, or would freeze a violation that would otherwise be transitory in nature. In such a case, proceedings shall not be stayed except by a restraining order granted by the board of adjustment or a court of record, upon application with notice to the officer from whom the appeal is taken.
In exercising the above-mentioned powers, the board of adjustment may, so long as the action is in conformity with the terms of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination that in its opinion ought to be made, and so shall have the powers of the administrative official from whom the appeal is taken.
(2) Interpretation. The board of adjustment shall interpret the zoning map and pass on questions of lot lines or district boundary lines and similar questions that may arise in the administration of this chapter.
(b) Variances: conditions covering applications, procedures, fee. The board of adjustment may authorize upon application in specific cases a variance from the requirements of this chapter. A variance shall be issued only when the findings set out in subsection (b)(1) are made.
(1) A variance shall not be granted unless the board of adjustment makes all of the following findings:
a. Enforcement of the strict letter of this chapter creates an unnecessary hardship for the applicant. In order for the board of adjustment to find that practical difficulties or unnecessary hardships exist, the applicant for a variance must show:
1. That if he/she complies with the provisions of this chapter, he/she can secure no reasonable return from, or make no reasonable use of, his/her property;
2. That the practical difficulty or unnecessary hardship results from the application of the chapter to his/her property;
3. That the practical difficulty or unnecessary hardship of which he/she complains is suffered by his/her property directly, and not others;
4. That the practical difficulty or unnecessary hardship is not the result of his/her own actions; and
5. That the practical difficulty or unnecessary hardship is peculiar to the applicant's property.
b. The requested variance is in harmony with the general purpose and intent of the zoning ordinance for the Town of Duck and preserves the spirit of the zoning ordinance; and
c. In granting the variance, the public safety and welfare have been assured and substantial justice has been done.
(2) A written application for a variance shall be submitted indicating the following:
a. What variance is required?
b. Describe the unnecessary hardship created for the applicant's property by the strict enforcement of the zoning ordinance for the Town of Duck.
c. Explain how the land can be used if the variance is not granted.
d. Explain how the land can be used if the variance is granted.
e. Explain how the unnecessary hardship is not the result of the applicant's own actions.
f. Explain how the unnecessary hardship is based upon conditions peculiar to the applicant's property.
g. Explain how the requested variance is in harmony with the general purpose and intent of this chapter and protects the spirit of this chapter.
h. Will the variance, if granted, allow an increase or extension of an existing nonconforming use?
i. Will the variance, if granted, allow a use otherwise prohibited in the zoning district containing the property?
(3) In granting a variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of the zoning ordinance of the Town of Duck and punishable as provided by the zoning ordinance.
(4) Under no circumstances shall the board of adjustment grant a variance to allow a use either expressly or by implication not permissible under the terms of this chapter in the district involved.
(5) A variance that is granted shall be the minimum variance that will make possible the reasonable use of the land, building or structure.
(6) No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.
(7) A public hearing shall be held to hear arguments and evidence in support of and opposition to the variance request. Any party may appear in person or be represented by an agent or an attorney.
(8) Public notice of the hearing to consider the variance shall be advertised at least fifteen (15) days in advance of the public hearing. The owner of the property for which the variance is sought or his/her agent shall be notified by mail. Notice of the hearing shall be posted on the property for which the variance is sought at least fifteen (15) days prior to the public hearing.
(9) The written application shall include a listing of the names and addresses of all abutting property owners and the owners of property immediately across the street from the property affected being the subject of the variance application. The list shall be supplied by the applicant and shall be current according to the most recent tax listing abstract as filed in the office of the Dare County Tax Supervisor. The Planning Department shall give written notice, including the date and time of the public hearing at which the application will be considered, to the owners as contained in said listing. Notice shall be sent by registered or certified mail to the last known address of such owner as appears on the list supplied by the applicant.
(10) 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 administrative official charged with the enforcement of this chapter, or to decide in favor of the applicant any matter upon which it is required to pass under any ordinance, or to grant a variance from the provisions of this chapter.
(11) The chairman of the board of adjustment, or any member temporarily acting as chairman, is authorized in his/her official capacity to administer oaths to witnesses in any matter coming before the board.
(c) Fees. A fee in accordance with the regularly adopted fee schedule of the Town of Duck shall be paid to the town for each application for an appeal, interpretation or variance request to cover the administrative expenses involved.
Section 19. Appeals from decision of the board of adjustment.
Any appeal from a decision of the board of adjustment to superior court shall be taken within thirty (30) days after the decision is filed in the office of the town clerk of the Town of Duck or after a copy of the decision is delivered to the appellant by registered mail, whichever is later. The zoning administrator shall file decisions of the board of adjustment in the office of the town clerk and shall send a copy by certified mail to the appellant after a decision is rendered.
PART II. This ordinance shall be in full force and effect from and after the 1st day of May, 2002 effective upon its adoption.
s/Paul F. Keller
Paul F. Keller, Mayor
s/Donald I. McRee, Jr.
APPROVED AS TO FORM:
s/Donald I. McRee, Jr.
Date adopted: May 1, 2002
Motion to adopt by: Councillor Schwarz
Vote: 5 AYES 0 NAYS