(A) Appeals.
(1) Standing. Any person who has standing as defined in Appendix A or the town may appeal an administrative decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the Town Clerk. The notice of appeal shall state the grounds for the appeal. A notice of appeal shall be considered filed with the Town Clerk when delivered to the Town Hall, and the date and time of filing shall be entered on the notice by the town staff.
(2) Judicial challenge. A person with standing may bring a separate and original civil action to challenge the constitutionality of the chapter or that it is ultra vires, preempted, or otherwise in excess of statutory authority without filing an appeal under division (A)(1).
(3) Notice of decision. 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.
(4) Time to appeal. The owner or other party shall have 30 days from receipt of the written notice of the determination 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 determination within which to file an appeal. 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.
(5) Record of decision. The official who made the decision shall transmit to the Board of Adjustment 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) Stays. 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 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 Unified Development Ordinance. In that case, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by the Superior Court of Brunswick County. 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 of Adjustment 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 Unified Development Ordinance shall not stay the further review of an application for development approvals to use such property; in these situations, the appellant or town may request and the Board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
(7) Alternative dispute resolution. The parties to an appeal that has been made under this division (A) may agree to mediation or other forms of alternative dispute resolution.
(B) Variances.
(1) An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application with the UDO Administrator. Applications shall be handled in the same manner as applications for development approvals.
(2) When unnecessary hardships would result from carrying out the strict letter of the Unified Development Ordinance, the Board of Adjustment shall vary any of the provisions of the Unified Development Ordinance upon a showing of all of the following:
(a) Unnecessary hardship would result from the strict application of the Unified Development 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. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
(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 Unified Development Ordinance, such that public safety is secured, and substantial justice is achieved.
(3) 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 development regulation that regulates land use or development may provide for variances from the provisions of those ordinances consistent with the provisions of this division (B).
(4) The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit, or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of this Unified Development Ordinance.
(C) Interpretations.
(1) The Board of Adjustment is authorized to interpret the zoning map and to act upon disputed questions of lot lines or district boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the UDO Administrator, they shall be handled as provided in division (A) above.
(2) An application for a map interpretation shall be submitted to the Board of Adjustment by filing a standard town appeal form with the UDO Administrator. The application shall contain sufficient information to enable the Board of Adjustment to make the necessary interpretation.
(3) Where uncertainty exists as to the boundaries of districts as shown on the Official Zoning Map, the rules of interpretation as specified in § 91.10 shall be applied. Where uncertainties continue to exist after application of the above rules, appeal may be taken to the Board of Adjustment as provided in division (A) above of this Unified Development Ordinance.
(4) Interpretations of the location of floodway and floodplain boundary lines may be made by the UDO Administrator as provided in Part I. Flood Damage Prevention of the Environmental Regulations.
(D) Requests to be heard expeditiously. As provided in §§ 91.40 through 91.43, the Board of Adjustment shall hear and decide all applications, appeals, variance requests and requests for interpretations, including map boundaries, as expeditiously as possible, consistent with the need to follow regularly established agenda procedures, provide notice in accordance with § 91.55(B), and obtain the necessary information to make sound decisions.
(E) Burden of proof in appeals and variances.
(1) When an appeal is taken to the Board of Adjustment in accordance with division (A) above, the UDO Administrator shall have the initial burden of presenting to the Board of Adjustment sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.
(2) The burden of presenting evidence sufficient to allow the Board of Adjustment to reach the conclusions set forth in division (B)(2) above, as well as the burden of persuasion on those issues, remains with the applicant seeking the variance.
(Ord. 21-1, passed 9-17-2020)