The Planning and Zoning Appeals Board shall have the following powers and duties in conducting quasi-judicial hearings and making decisions on applications for various items.
(A) Powers and duties. The Planning and Zoning Appeals Board shall hear and decide requests for variances and appeals of decisions of administrative officials charged with enforcement of the ordinance. As used in this section, the term “decision” includes any final and binding order, requirement, or determination. The Planning and Zoning Appeals Board shall follow quasi-judicial procedures when deciding appeals and requests for variances. The Board shall hear and decide all matters upon which it is required to pass under any statute or ordinance that regulates land use or development.
(B) Notice of hearing. Notice of hearings conducted pursuant to this section shall be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the zoning or unified development ordinance. In the absence of evidence to the contrary, the city may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the city shall also prominently post a notice of the hearing on the site that is the subject of the hearing, or on an adjacent street or highway right-of-way.
(C) Variances.
(1) When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Planning and Zoning Appeals Board shall vary any of the provisions of the ordinance, upon a showing of all of the following:
(a) 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.
(b) 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 general public, may not be the basis for granting a variance.
(c) 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.
(d) 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.
(2) No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this division.
(D) Appeals. The Planning and Zoning Appeals Board shall hear and decide appeals from decisions of administrative officials charged with enforcement of the zoning or unified development ordinance, and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:
(1) Any person who has standing under G.S. 160D-14-2(d) or the city may appeal a decision to the Planning and Zoning Appeals Board. An appeal is taken by filing a notice of appeal with the City Clerk. The notice of appeal shall state the grounds for the appeal.
(2) The official who made the decision shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.
(3) The owner or other party shall have 30 days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have 30 days from receipt from any source of actual or constructive notice of the decision within which to file an appeal. In the absence of evidence to the contrary, notice pursuant to G.S. 160D-4-3(b) given by first class mail shall be deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.
(4) It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign containing the words “Zoning Decision” or “Subdivision Decision,” in letters at least six inches high, and identifying the means to contact an official for information about the decision, is prominently posted on the property that is the subject of the decision, provided the sign remains on the property for at least ten days. Posting of signs is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision. Absent an ordinance provision to the contrary, posting of signs shall not be required.
(5) The official who made the decision shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.
(6) An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from, unless the official who made the decision certifies to the Planning and Zoning Appeals Board, after notice of appeal has been filed, that because of the facts stated in an affidavit, a stay would cause imminent peril to life or property, or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the Planning and Zoning Appeals Board shall meet to hear the appeal within 15 days after the request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay the further review of an application for development approvals or permission to use such property; in these situations the appellant or the city may request and the Board may grant a stay of a final decision on permit applications or building permits affected by the issue being appealed.
(7) Subject to the provisions of division (D)(6), the Planning and Zoning Appeals Board shall hear and decide the appeal within a reasonable time.
(8) The official who made the decision shall be present at the hearing as a witness. If the official who made the decision is no longer employed by the city then their successor shall attend as witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the city would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing. The Planning and Zoning Appeals Board may reverse or affirm, wholly or partly, or may modify the decision appealed from, and shall make any order, requirement, decision, or determination that ought to be made. The Board shall have all the powers of the official who made the decision.
(9) When hearing an appeal pursuant to G.S. 160A-400.9(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in G.S. 160A-393(k).
(10) The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
(Ord. 18-30, passed 9-4-18; Am. Ord. 21-26, passed 7-12-21)