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(A) Each member of the Planning Board, while holding that office, is hereby appointed to the Zoning Board of Adjustment.
(B) Members of the Board of Adjustment shall serve without pay, but shall be reimbursed for any expenses incurred in pursuit or the Board's activities subject to approval by the Board of Commissioners.
(C) Office supplies, secretarial assistance and legal assistance required by the Board of Adjustment shall be furnished by the Town of Murphy.
(Ord. passed 4-1993; Am. Ord. passed 9-4-2007; Am. Ord. passed 1-7-2013; Am. Ord. passed 6-7-2021)
(A) The Board of Adjustment shall hear and decide appeals of decisions of administrative officials charged with enforcement of the zoning ordinance and may hear appeals arising out of any other ordinance that regulates land use or development. As used in this section, the term DECISION includes any final and binding order, requirement, or determination. Any such appeal shall be heard pursuant to all of the following:
(1) Any person who has standing under G.S. §160D-1402 or the town may appeal a 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.
(2) 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.
(3) The owner or other party shall have 30 days from receipt of the written notice within which to file an appeal in accordance with G.S. §160D-405(d). If the written notice is sent by mail only, the town shall presume it is received on the third business day after it is sent. 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.
(4) 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 that is the subject of the decision, provided the sign remains 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. Absent an ordinance provision to the contrary, posting of signs shall not be required.
(5) 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.
(6) An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed, including fines, 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 such a 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.
(7) Subject to the provisions of division (A)(6) above, the Board of Adjustment shall hear and decide the appeal within a reasonable time.
(8) 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.
(9) When hearing an appeal pursuant to G.S. §160D-947 or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in G.S. §160D-1402.
(10) The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The chapter may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
(Ord. passed 6-2-2014; Am. Ord. passed 6-7-2021)
(A) When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing of all of the following:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(B) No change in permitted uses may be authorized by variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this section.
(1) Application for a variance may be made by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for a variance as is authorized by the easement. Approval of a variance runs with the land.
(2) All applications for variances shall be addressed and submitted to the Board of Adjustment and shall be delivered to the office of the Zoning Administrator. Upon receipt of an application for a variance, the Board of Adjustment shall call a public hearing and give notice as specified by § 153.100(B) required by law. Applications for a variance shall be made on the proper form obtainable from the Zoning Administrator. Some application requirements may be waived, such as for changes of use in existing buildings involving no expansions in building or parking areas, and the like.
(3) The Board shall not grant a variance if it finds that doing so would alter the essential character of the neighborhood, materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health or general welfare.
(4) Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.
(5) The Board of Adjustment shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.
(6) A variance issued in accordance with this section shall expire if a zoning certificate or certificate of compliance for such use is not obtained by the applicant within six months from the date of the decision.
(Ord. passed 6-2-2014; Am. Ord. passed 6-7-2021)
(A) The Board of Adjustment shall follow quasi-judicial procedures in accordance with G.S. §160D-406 when deciding appeals and requests for variances and special use permits. The Board shall hear and decide all matters upon which it is required to pass under any statute or ordinance that regulates land use or development.
(B) Notice of hearings conducted pursuant to this section 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 entitled to receive notice as provided by the zoning or unified development ordinance. 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. Within that same time period, the town shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.
(C) The concurring vote of four-fifths of the Board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this section, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
(D) A member of any board exercising quasi-judicial functions pursuant to this section shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. If an objection is raised to a member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.
(E) The Chair of the Board or any member acting as Chair and the Clerk (or substitute "Secretary") to the Board are authorized to administer oaths to witnesses in any matter coming before the Board. Any person who, while under oath during a proceeding before the Board of Adjustment, willfully swears falsely is guilty of a Class 1 misdemeanor.
(F) The Board of Adjustment through the Chair, or in the Chair's absence anyone acting as Chair, may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under G.S. §160D-1402 may make a written request to the Chair explaining why it is necessary for certain witnesses or evidence to be compelled. The Chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The Chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the Chair may be appealed to the full Board of Adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this section, the Board of Adjustment or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.
(G) The Board shall determine contested facts and make its decision within a reasonable time. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing and reflect the Board's determination of contested facts and their application to the applicable standards. The written decision shall be signed by the Chair or other duly authorized member of the Board. A quasi-judicial decision is effective upon filing the written decision with the Clerk (or "Secretary") to the Board or such other office or official as the ordinance specifies. The decision of the Board shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.
(H) The applicant, the local government, and any person who would have standing to appeal the decision under G.S. §160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board. 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. Objections based on jurisdictional issues may be raised for the first time on judicial review.
(Ord. passed 6-2-2014; Am. Ord. passed 6-7-2021)
ADMINISTRATIVE AND LEGAL PROVISIONS
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