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<br /> PROCEDURES OF THE BOARD OF ADJUSTMENT
<br /> PART I MAKING A RECORD a
<br /> j
<br /> MICHAEL BROUGH Source of the Rules
<br /> No North Carolina statutes prescribe the
<br /> (u-asi-judicial Administrative Power nature of the proceedings ofisuch local admin-
<br /> The board of adjustment can be described as a istrative bodies as the board of adjustment or
<br /> quasi-judicial administrative agency. Like other
<br /> define the scope of judicial review applicable to
<br /> administrative bodies operating at the local local administrative decisions. The newly adopted
<br /> level--the planning board, the appearance commis- Administrative Procedure Act;1 which becomes effec-
<br /> sion, the historic district commiasion, the plan- rive February 1, 1976, specifically exempts from
<br /> ning department, the various enforcement divisions its coverage "counties, cities, towns, villages,
<br /> (zoning, building codes, minimum housing codes, other municipal corporations or political sub-
<br /> etc.)---the board of adjustment is involved in the divisions of the State or any agencies of such
<br /> administration and enforcement of a locally adopt- subdivisi2ns, or,-,local...units or bodies of any
<br /> ed ordinance. But the board also exercises a type kind., .." The new act also repeals all the prior
<br /> of power--quasi-judicial power--in a manner and to sections of the Genera]. Statutes that deal in
<br /> an extent that differentiates it from other adman- general with administrative agencies, several of
<br /> istrative bodies dealing with the regulation of which bad been held applicable to local admin-
<br /> development. By the grant of this type of power, istrative bodies. Consequently, one must look to
<br /> the board is authorized to interpret local ordi- the decisions of the appellate courts to find
<br /> nances, make findings of fact, and exercise limit- guidelines for administrative action by local
<br /> ed discretion in determining the rights of prop- governments.
<br /> erty owners in specific cases. The legal re-
<br /> quirements imposed on boards of adjustment as they Without statutory guidance, the courts are
<br /> exercise this quasi-judicial power is the subject forced to rely upon the state and federal con-
<br /> ( of this three-part series of memoranda, sttcations as well as the common law (judge-made
<br /> 11 law) to formulate appropriate standards for admin-
<br /> In some cases the city council or the board istrative decision-making, In the past, North
<br /> of commissioners also sits as an administrative Carolina courts most often turned to the latter
<br /> body and acts in a quasi-judicial capacity (e.g., source for inspiration and were able to draw upon
<br /> when it passes on applications for special-use a body of "established rules of procedure (i.e. ,
<br /> permits). In these situations, of course, the established by the common law courts] applicable
<br /> rules discussed below in connection with the board generally to administrative tribunals" as they
<br /> of adjustment apply to the governing body as well, sought to establish guidelines for local admin-
<br /> In addition, as the memorandum on Zoning Amend- istrative action. While many of these rules have
<br /> ments: Part 2, Substantive Requirements, dis- constitutional (due process) overtones, they are
<br /> cusses in greater detail, several courts have not yet indelibly written into the fabric of
<br /> begun to recognize that in acting upon rezoning constitutional law and therefore are subject to
<br /> applications, the local governing body is really later modification by legislative enactment, if
<br /> acting in an administrative capacity and should be such modification becomes advisable.
<br /> held to standards required of other local admin-
<br /> istrative bodies. For this reason, it is recom- Judicial Review of Administrative Action
<br /> mended that local governing bodies, when passing The courts impose both procedural and sub-
<br /> upon rezoning requests, adhere to the requirements stantive requirements on local boards of adjust-
<br /> discussed below as well as the procedural require- ment. First, from a procedural standpoint, courts
<br /> ments set out in the memorandum on Zoning Amend- require that local boards conduct their meetings
<br /> meets: Parc 1, Procedural Requirements, in such a way that interested parties have an
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