The Zoning Board of Adjustment shall have the following powers and duties:
(a) Appeals of administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Administrator in the enforcement of this chapter.
(1) An appeal from the decision of the Administrator may be taken to the Board of Adjustment by any person aggrieved or affected by such decision. The appeal shall be taken within 30 days from receipt of written notice by filing with the Zoning Board of Adjustment a notice of appeal specifying the grounds thereof. In the absence of evidence to the contrary, notice pursuant to G.S. § 160D-403(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.
(2) The Administrator shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.
(3) An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed unless the official who made the decision certifies to the 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 ordinance. 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 Board shall meet to hear the appeal within 15 days after such a 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 development regulation shall not stay the further review of an application for development approvals to use such property; in these situations the appellant or local government may request and the Board may grant a stay of a final decision of development approval applications, including building permits affected by the issue appealed.
(b) Special use permits. To hear and decide special use permits to the terms of this chapter upon which the Board of Adjustment is required to pass under this chapter. To decide such questions as are involved in determining whether a special use permit should be granted. To grant special use permits with such conditions and safeguards as are appropriate under this chapter, or to deny special use permits when not in harmony with the intent of this chapter. A special use permit may be granted by the Board of Adjustment only after a hearing:
(1) The Board of Adjustment is empowered to grant the special use permit and that the granting of the special use permit will not adversely affect the public interest.
(2) Before any special use permit shall be issued, the Board shall make written findings certifying compliance with all specific rules governing the individual development and that satisfactory provision and arrangement has been made concerning the following wherever applicable:
a. Ingress and egress to property and proposed structure with particular reference to automotive and pedestrian safety, convenience, traffic flow and control, and access in case of fire or catastrophe.
b. Refuse and service areas, with particular reference to the items in a. and b. above.
c. Off-street parking and loading areas where required with particular attention to the items in a. above and to the economic, noise, glare or odor effects of the special use on adjoining properties and generally in the district.
d. Utilities, with reference to location, availability and compatibility.
e. Screening and buffering, with reference to type, dimensions, and character.
f. Signs, if any, and proposed exterior lighting, with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district.
g. Required yards and other open spaces.
h. General compatibility with adjacent property and other property in the district.
(3) The Board of Adjustment shall request the Canton Planning Board to review and make recommendations concerning the special use permit relative to the following considerations:
a. Relation of the special use to applicable elements of the planning program.
b. Appearance of the special use relative to location, structure and design.
(4) Reasonable and appropriate conditions and safeguards may be imposed upon these permits. The Zoning Board of Adjustment must not impose conditions on special use permits that the local government does not otherwise have statutory authority to impose. Further, the Board shall obtain the landowner's and/or applicant's written consent to the conditions related to any special use permit granted under these regulations.
(5) The Zoning Board of Adjustment may provide that defined minor modifications to special use permits, that do not involve a change in uses permitted or the density of overall development permitted, may be reviewed and approved administratively (Section 9-4097(b)). Any other modification or revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit. Any modifications approved shall only be applicable to those properties whose applicants/landowners provide written consent for the modification.
(c) Variances. To authorize upon appeal in specific cases such variances from the terms of the chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the chapter will, in an individual case, result in practical difficulty or unnecessary hardship; so that the spirit of the chapter shall be observed, public safety and welfare secured, and substantial justice done.
(1) The existence of a nonconforming use of neighboring land, building, or structures in the same district or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variance. The fact that property may be utilized more profitably will not be considered adequate to justify the Board in granting a variance.
(2) The variance may be granted in such individual case of unnecessary hardship upon a finding by the Board of Adjustment that all of the following conditions exist:
a. There are extraordinary and exceptional conditions pertaining to the particular place or property in question because of its size, shape, or topography that are not applicable to other lands or structures in the same district.
b. Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the district in which the property is located.
c. A literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located.
d. The requested variance will be in harmony with the purpose and intent of this chapter and will not be injurious to the neighborhood or to the general welfare.
e. The special circumstances are not the result of the actions of the applicant or the property owner.
f. The variance requested is the minimum variance that will make possible the legal use of the land, building, or structure.
g. The variance is not a request to permit a use of land, building, or structure which is not permitted by right or by special use permit in the district involved.
(3) No change in permitted uses may be authorized by variance.
(4) Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.
(As Amended by Ord. of 6/24/21)