(A) Types of appeals and applications.
(1) Appeals. The Board shall hear and decide all appeals from any decision or determination made by the Zoning Administrator.
(2) Applications. All applications for variances and special use permits shall first be presented to the Zoning Administrator, who in turn shall refer the application to the Board of Adjustment. Applications for variances and special use permits must be made by a person with a property interest in the property or a contract to purchase the property.
(B) Appeals.
(1) The Board of Adjustment shall hear and decide appeals from decisions of the Town Manager.
(2) The following apply to all appeals heard by the Board of Adjustment:
(a) Any person who has standing under G.S. § 160D-406(d) or the town may appeal a decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the Town Manager. The notice of appeal shall state the grounds for the appeal.
(b) The Town Manager 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 owners. The written notice shall be delivered by personal delivery, first-class mail, or other electronic forms. If provided via electronic form, the file must be protected from further editing.
(c) 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 the receipt from any source of actual or constructive notice of the decision within which to file an appeal.
(d) 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.
(e) The Town Manager shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from are taken. The Town Manager 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.
(f) 1. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the Town Manager certifies to the Board of Adjustment 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 ordinance.
2. 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 Town Manager a request for an expedited hearing of the appeal, and the Board of Adjustment shall meet to hear the appeal within 15 days after such a request is filed.
3. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay the further review of an application for permits or permissions to use such property; in these situations the appellant may request and the Board may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.
(g) Subject to the provisions of division (B)(2)(f) above, the Board of Adjustment shall hear and decide the appeal within a reasonable time.
(h) 1. During the conduct of a hearing, any party may appear in person or by agent or by attorney at the hearing.
2. The order of business for the hearing shall be as follows:
a. The Chair, or such person as he or she shall direct, shall give a preliminary statement of the case;
b. The applicant shall present the argument in support of the appeal or application;
c. Persons opposed to granting the appeal or the application shall present their argument against the application;
d. Both sides will be permitted to present rebuttals to opposing testimony; and
e. The Chair or such person as he or she shall direct shall summarize the evidence which has been presented, giving the parties the opportunity to make objections or corrections. Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to only consideration of only such evidence as would be admissible in a court of law. The Board may place parties and witnesses under oath and the opposing party may cross-examine them. The Town Manager, or other town official who filed the notice of violation, shall be present at the hearing as a witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing. The Board of Adjustment 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 Town Manager.
(i) 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).
(j) The parties to an appeal that has been made under this division (B) 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.
(C) Hearings.
(1) Time. After receipt of notice of an appeal or an application, the Board Chairperson shall schedule a time for a hearing which shall be within 36 days from the filing of such notice of appeal or application. Any additional appeal or application shall be received not less than two weeks prior to a scheduled meeting.
(2) Notice. In any application for projects involving planned unit developments, the Board shall give notice of the hearing in a newspaper having general circulation in the county five days prior to the date of the hearing. For all other applications and appeals, the Board shall send by first class mail notices of the hearing to the affected parties and to such other persons as the Zoning Administrator shall direct, at least ten 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 or application, and the time and place of the hearing.
(3) Re-hearings. 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 to determine whether there has been a substantial change in the facts, evidence, or conditions of the case. The application for rehearing shall be denied by the Board if from the record it finds that there has been no substantial change in facts, evidence, or conditions. If the Board finds that there has been a change, it shall thereupon treat the request in the same manner as any other appeal or application.
(D) Decisions.
(1) Time. A decision by the Board shall be made within 30 days from the time of hearing.
(2) Form.
(a) Written notice by certified or registered mail of the decision in a case shall be given to the applicant or appellant by the Secretary as soon as practical after the case is decided. In addition, written notice shall be given to owners of the subject property and to other persons who have made written request for such notice. The final decision of the Board shall be shown in the record of the case as entered in the minutes of the Board and signed by the Secretary and the Chairperson upon approval of the minutes by the Board.
(b) 1. Such record shall show the reasons for the determination, with a summary of the evidence introduced and the findings of fact made by the Board. The decision on an appeal may reverse or affirm, wholly or partly, or modify the decision or determination of the Zoning Administrator. Where a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the application for the variance was based and which the Board finds to exist.
2. The record shall state in detail what, if any, conditions and safeguards are imposed by the Board in connection with the granting of a variance.
3. Where a special use permit is granted, the record shall indicate, by reference to the appropriate sections of the ordinance, that all requirements and standards for the particular special use have been met.
(3) Expiration of permits. Unless otherwise specified, any order or decision of the Board in granting a variance or a special use permit shall expire if a building permit for such use is not obtained by the applicant within six months from the date of the decision.
(4) Voting. The concurring vote of four-fifths of the members of the Board shall be necessary to reverse any decision or determination of the Zoning Administrator, or to grant a variance or to approve a special use permit.
(5) Public record of decisions. The decisions of the Board, as filed in its minutes, shall be a public record, available for inspection at all reasonable times.
(6) Variance and special use approvals run with the land.
(7) Revocations of previously approved variance and special use approvals must follow the same process as used for the approval.
(Ord. passed 10-19-1983; Ord. passed 6-8-2021)
Editor’s note:
This amendatory language was passed during a Board meeting, May 14, 2014