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The Board of Adjustment shall hear and decide appeals of decisions of administrative officials charged with enforcement of the unified development ordinance, and may hear appeals arising out of any other ordinance that regulates land use or development, including but not limited to the Standard Specification and Detail Manual and the South Monroe Historic District Guidelines, pursuant to all of the following:
(A) Any person who has standing under G.S. § 160A-393 or the city may appeal a decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the City Clerk. The notice of appeal shall state the grounds for the appeal.
(B) The official who made the decision shall give written notice to the owner of the property that is 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.
(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) 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 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. Posting of “Zoning Decision” or “Subdivision Decision” signs is not required.
(E) The official who made the decision shall transmit to the board 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.
(F) An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from, 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 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 of Adjustment shall meet to hear the appeal within 15 days after the request is filed. 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 subsection (F) of this section, the Board of Adjustment shall hear an decide the appeal within a reasonable time.
(H) The official who made the decision 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 city 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.
(I) When hearing an appeal pursuant to § 156.205 or any other appeal in the nature of certiorari, the hearing shall be based on findings and conclusions necessary to the issuance or denial of the requested appeal, as outlined in § 156.75, 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 subsection may agree to mediation or other forms of alternative dispute resolution.
(K) The Board of Adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement or decision or determination appealed from and shall make any order, requirement, decision or determination that, in its opinion, ought to be made in the case before it. To this end, the board shall have all the powers of the officer from whom the appeal is taken. With respect to appeals, a motion to reverse, affirm or modify the order, requirement, decision or determination appealed from shall include, insofar as practicable, a statement of the specific reasons or findings of facts that support the motion. If a motion to reverse or modify is not made of fails to receive the majority vote necessary for adoption, then a motion to uphold the decision appealed from shall be in order.
(Ord. O-2003-63, passed 12-16-03; Am. Ord. O-2014-10, passed 6-3-14)