§ 153.322 APPEALS.
   (A)   Appeals procedures.
      (1)   An appeal may be initiated by any aggrieved party or by any officer or the Board of Commissioners of the Town of Kill Devil Hills.
      (2)   The Board of Adjustment shall hear and decide appeals decisions of administrative officials charged with enforcement of the zoning, subdivisions or flood damage prevention ordinance, pursuant to all of the following:
         (a)   Any person who has standing under G.S.§ 160D-1402(c) or the town may appeal a decision to the Board of Adjustment. A written notice of appeal stating the grounds for the appeal must be filed with the Town Clerk.
         (b)   The official who made the decision must 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 must be delivered by personal delivery, electronic mail, or by first-class mail.
         (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 receipt from any source of actual or constructive notice of the decision within which to file an appeal.
         (d)   The official who made the decision must transmit to the Board all the documents and exhibits constituting the record upon which the action appealed was taken. The official must 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.
         (e)   An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed and accrual of any fines, 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 this chapter. 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 of Adjustment must meet to hear the appeal within 15 days after such request is filed. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with this chapter 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.
         (f)   The Board of Adjustment must hear and decide the appeal within a reasonable time. The Board shall follow quasi-judicial procedures in determining appeals of administrative decisions (G.S. § 160D-406).
         (g)   Notice of the evidentiary hearing shall follow procedures outlined in § 153.363.
         (h)   The official who made the decision must be present at the hearing as a witness.
         (i)   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 official who made the decision.
         (j)   When hearing an appeal pursuant to G.S.§ 160D-1402 or any other appeal in the nature of certiorari, the hearing shall be based on the record and the scope of review shall be as provided in G.S.§ 160D-1402.
      (3)   Staff shall transmit to the Board all applications, reports and written materials relevant to the matter being considered. Administrative materials shall become part of the hearing record. The applicant, local government, and any person who would have standing to appeal the decision shall have the right to participate as a part of the evidentiary hearing.
      (4)   Upon voting, the decision shall be made by the majority of the board for appeals.
      (5)   Standards for granting an appeal.
         (a)   The Board of Adjustment shall reverse or modify the order, decision, determination, or interpretation under appeal only upon finding an error in the application of these regulations on the part of the officer rendering the order, decision, determination, or interpretation.
         (b)   In modifying the order, decision, determination, or interpretation, the Board of Adjustment shall have all the powers of the officer from whom the appeal is taken.
      (6)   Judicial challenge. A person with standing may bring a separate and original civil action to challenge the enforceability, validity, effect or constitutionality of an ordinance or development regulation, or that it is ultra vires, preempted, or otherwise in excess of statutory authority without filing an appeal under this section.
(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)