(A) Types of appeals. The Town Board of Adjustment shall hear and decide all appeals from any order, requirement, decision, or determination made by the Floodplain Administrator. In deciding appeals, it may hear both those based upon an allegedly improper or erroneous interpretation of this chapter and those based upon alleged hardship resulting from strict interpretation of this chapter.
(B) Procedure for filing appeals. No appeal shall be heard by the Board of Adjustment unless notice thereof is filed within 30 days after the interested party receives notice of the order, requirement, decision, or determination by the Floodplain Administrator. The applicant must file his or her application for a hearing with the Floodplain Administrator, who shall act as clerk for the Board of Adjustment in received this notice. All applications shall be made upon the form specified for that purpose, and all information required thereon shall be complete before an appeal shall be considered as having been filed.
(C) Hearings. Hearings shall be conducted as follows.
(1) Time. After receipts of notice of appeal, the Board Chairperson shall schedule the time for a hearing, which shall be at a regular or special meeting within 31 days from the filing of such notice of appeal.
(2) Notice of hearing. The Board of Adjustment shall mail notices of the hearing to the affected parties to the action appealed from, and to such other persons as the Floodplain Administrator shall direct, at least five days prior to the hearing. Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal, and the time and place of the hearing.
(3) Conduct of hearing.
(a) Any party may appear in person or by agent or by attorney at the hearing.
(b) The order of business for the hearing shall be as follows:
1. The Chairperson, or such person as he or she shall direct, shall give a preliminary statement of the case;
2. The applicant shall present the argument in support of his or her application;
3. Persons opposed to granting the application shall present the argument against the application;
4. Both sides will be permitted to present rebuttals to opposing testimony; and
5. The Chairperson shall summarize the evidence, which has been presented, giving the patties opportunity to make objections or corrections.
(c) Witnesses may be called and factual evidence may be submitted, but the Board of Adjustment shall not be limited to consideration of only such evidence as would be admissible in a court of law. The Board of Adjustment may view the premises before arriving at a decision. All witnesses before the Board of Adjustment shall be placed under oath and the opposing party may cross examine them.
(D) Rehearings. An application for a rehearing may be made in the same manner as provided for an original hearing. Evidence in support of the application shall initially be limited to that which is necessary to enable the Board of Adjustment to determine whether there has been a substantial change in the facts, evidence, or conditions in the case. The application for rehearing shall be denied by the Board of Adjustment if, from the record, it finds that there has been no substantial change in facts, evidence, or conditions. If the Board of Adjustment finds that there has been a change, it shall thereupon treat the request in the same manner as any other application.
(E) Decisions. Decisions shall be made in the following manner.
(1) Time. A decision by the Board of Adjustment shall be made within 30 days from the time of hearing.
(2) Form. Written notice by certified or registered mail of the decision in a case shall be given to the applicant by the Floodplain Administrator as soon as practical after the case is decided. Also, written notice shall be given to owners of the subject property, if not the applicant, and to other persons who have made written request for such notice. The final decision of the Board of Adjustment shall be shown in the record of the case as entered in the minutes of the Board of Adjustment and signed by the Floodplain Administrator and the Chairperson upon approval of the minutes of the Board of Adjustment. Such record shall show the reasons for the determination, with summary of the evidence introduced and the findings of fact made by the Board of Adjustment. Where a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the appeal was based and which the Board of Adjustment finds to exist. The decision may reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination appeal from. The record shall state in detail what, if any, conditions, and safeguards are imposed by the Board of Adjustment in connection with the granting of a variance.
(3) Expiration of permits. Unless otherwise specified, any order or decision of the Board of Adjustment granting a variance shall expire if a floodplain development permit, building permit, or certificate of occupancy for such use is not obtained by the applicant within one year from the date of the decision.
(4) Voting. The concurring vote of four-fifths of the members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision, or determination of the Floodplain Administrator; to decide in favor of the applicant any matter upon which the Board of Adjustment is required by this subchapter to pass; or to grant a variance from the provisions of this subchapter.
(5) Public record of decisions. The decisions of the Board of Adjustment, as filed in its minutes, shall be a public record, available for inspection at all reasonable times.
(F) Appeals from decision of Board of Adjustment.
(1) Appeals from the Board of Adjustment may be taken to the courts pursuant to G.S. § 160A-388 as same is effective on and after January 1, 2010 in accordance Session Law 2009-421.
(2) Every final decision granting or denying a permit under this part shall be subject to review by the superior court of the county, with the right of jury trial at the election of the party seeking review. The time and manner of election of a jury trial shall be governed by G.S. 1A-1, Rule 38(b) of the Rules of Civil Procedure. Pending the final disposition of an appeal, no action shall be taken that would be unlawful in the absence of a permit issued under this part.
(2013 Code, Ch. 21)