(A) Types of appeals. The Board of Adjustment shall hear and decide all appeals from and review any order, requirements, decision, or determination made by the Zoning Administrator. The officer making the determination shall give written notice to the owner of the property that is the subject of the determination and to the party who sought the determination, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail. The notice shall be delivered to the last address listed for the owner of the affected property on the county tax abstract and to the address provided in the application or request for a determination if the party seeking the determination is different from the owner. The official who made the decision (or his/her successor if no longer employed) shall appear as a witness in the appeal. It shall also hear and decide all matters referred to it or on which the zoning code requires it to pass. In deciding appeals the Board may hear both those based on an allegedly improper or erroneous interpretation of the code and those based on alleged hardship resulting from strict interpretation of the code. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the Board of Adjustment and any subsequent appeal in accordance with G.S. § 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, 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 development regulation. In that case, enforcement proceedings are not 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 any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the 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.
(B) Procedure for filing appeals. No appeal shall be heard by the Board of Adjustment unless a complete application for an appeal hearing is filed within 30 days after the interested party or parties receive notice of the final order, requirement, decision, or determination by the Zoning Administrator. Any other person with standing to appeal has 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 given pursuant to G.S. § 160D-403(b) by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service. The applicant must file his application for a hearing with the Town Clerk, who shall act as clerk for the Board in receiving this notice. All applications shall be made on the form furnished for that purpose, and all information required thereon shall be completed before an appeal may be considered as having been filed. All applications shall be accompanied by a filing fee according to the town’s schedule of fees maintained in the office of the Town Clerk.
(C) Quasi-judicial hearing.
(1) Time. After a complete application for a quasi-judicial decision is received by the Town Clerk, the Board Chairman shall schedule the time for a hearing, which shall be a regular or special meeting within 45 days from the receipt of a complete application. For special use permits, once a complete application has been received, the application shall be placed on the agenda for the next regularly scheduled BOC meeting following 45 days from receipt of the complete application. The BOC shall follow the quasi-judication hearing process as described herein for the special use permit application.
(2) Quasi-judicial hearing notice.
(a) The notice of the quasi-judicial evidentiary hearing 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 as the Building Inspector shall direct. In the absence of evidence to the contrary, the town 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. The Board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.
(b) Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal, and the date, time and place of the hearing.
(c) In addition, a notice shall be placed on the door of the Town Hall, and adjacent neighbors shall be notified. ADJACENT shall be defined as the owner of that parcel of land in question shown on the county tax listing, and the owners of all parcels of land abutting that parcel of land as shown on the county tax listing and parcels within 100 feet.
(d) The site subject to the hearing shall be posted at least ten days, but not more than 25 days, prior to the date of the hearing. The posted notice shall provide reasonable notice to interested persons. The notice shall be posted on the site that is subject of the hearing or an adjacent street or highway right-of-way.
(3) Conduct of the hearing.
(a) Any party may appear in person, by agent, or by attorney at the hearing. The order of business for each hearing shall be as follows.
1. The Chairman or such person as he shall direct, shall give a preliminary statement of the case noting that the proceedings are quasi-judicial and therefore shall be conducted in the manner of a court of law with sworn testimony presented as evidence. All who wish to speak shall first be placed under oath and the opposing party may cross examine them as set forth in (b) below;
2. The applicant shall present the evidence and arguments in support of his application;
3. Persons opposed to granting the application shall present the evidence and arguments against the application;
4. Both sides shall be permitted to present rebuttals to opposing evidence and arguments;
5. The Chairman shall summarize the evidence that has been presented, giving the parties opportunity to make objections or corrections.
(b) Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law when evidence is not reasonably available under such rules to show relevant facts. In such cases facts may be shown by the most reliable and substantial evidence available. The Board may view the premises before the hearing, but the facts indicated by such inspection shall be disclosed at the hearing and made part of the record.
(c) All witnesses before the Board, including the applicant(s), shall be placed under oath, and the opposing party may cross-examine them. Officials of the court (attorneys) not wishing to be sworn must understand their testimony must be treated not as evidence on which to base a decision but merely as arguments.
(4) Rehearings. An application for a rehearing may be made in the same manner as an application for an original hearing. Evidence in support of the application shall initially be limited to what is necessary to enable the Board to determine whether there has been a substantial change in the facts, evidence, or conditions in the case. The Board shall deny the application for rehearing it, from the record, it finds that there has been no substantial change in facts, evidence, or conditions. If the Board finds that a change has occurred, it shall thereupon treat the request in the same manner as any other application.
(D) Decisions.
(1) Time. Written decisions by the Board including findings of fact shall be made and presented to the applicant no later than 30 days from the time of the hearing.
(2) Form.
(a) The Board’s final decision shall be shown in record of the case as entered in the Board’s minutes and signed by the Secretary and the Chairman on approval of the minutes by the Board. Such record shall show the reasons for the determinations, with a summary of the evidence introduced, the conclusions of law, and the findings of fact made by the Board. No variance shall be granted for a specific use. When a variance is granted, the record shall state in detail any exceptional difficulty to unnecessary hardship upon which the appeal was based and which the Board finds to exist. The decision may reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination appealed from. When a special use permit is granted, the record shall state in detail any facts that support findings required to be made before such permit is issued.
(b) The Chair or his or her designee shall rule on objections and motions to quash subpoenas. Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board. The Board Chair shall rule on any objections, and the Chair's rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. § 160D-1402
(c) The record shall state in detail what, if any, conditions and safeguards the Board imposes in connection with granting of a variance or special use permit. A separate record of decision in each case shall be prepared, filed in the Town Clerk’s office and furnished to the parties as specified in subsection (5) of this division.
(3) Expiration of permits. Unless otherwise specified, any order or decision of the Board granting a special use permit shall expire if the applicant does not obtain a building permit or certificate of occupancy for such use within 12 months from the date of the decision.
(4) Voting at hearings. The concurring vote of four- fifths of the Board members shall be necessary to grant a variance from the ordinance provisions. All other decisions shall be made by a majority vote. However, vacant seats and disqualified members are not considered in calculating four-fifths votes if there are no qualified alternates.
(5) A variance may only be issued when the following findings of fact are made by the Board of Adjustment. The burden of proving these conditions exist is on the applicant.
(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.
(6) Notice and public records of decisions. The Secretary shall give written notice of the decision in the case to the appellant and/or applicant and to every aggrieved party who has filed a written request for such notice with the Secretary or the Chairman of the Board when the hearing is held. Such notice may be delivered either by personal service or by registered mail or certified mail, or return receipt requested. A copy of the decision shall also be filed in the Town Clerk’s office. The decision shall be a public record, available for inspection at all reasonable times.
(Ord. passed 8-25-94; Am. Ord. passed 1-13-05; Am. Res. passed 4-8- 10; Am. Ord. 2014-001-O, passed 4-10-14; Am. Ord. passed - -)