(A) Appeals. The Board of Adjustment shall hear and decide appeals from administrative decisions regarding administration and enforcement of the town’s zoning regulations and may hear appeals arising out of any other ordinance that regulates land use or development.
(1) Any person who has standing under G.S. § 160D-1402(d) 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 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.
(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 decision 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 from and accrual of 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 development regulation. 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 development approval or otherwise affirming that a proposed use of property is consistent with the development regulation shall not stay the further review of an application for development approvals to use such property; in these situations the appellant or local government may request and the Board may grant a stay of a final decision of development approval 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 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.
(9) When hearing an appeal pursuant to G.S. § 160D-947(e) 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(k).
(10) The parties to an appeal that has been made under this division (A) may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
(B) Issuance of special use permits.
(1) The Board of Adjustment may hear and decide special use permits in accordance with procedures specified in the chapter. Reasonable and appropriate conditions may be imposed upon these permits.
(2) When issuing special use permits, the Board shall require both:
(a) The general findings set forth in § 155.170 that apply to any application for a special use permit; and
(b) Specific findings that apply only to the specified use applied for.
(3) Notice of hearings on special use permit applications shall be as provided in G.S. § 160D-406 or as in § 155.256(C)(4) of this chapter.
(C) Variances.
(1) When unnecessary hardship would result from carrying out the strict letter of a zoning regulations, the Board of Adjustment shall vary any of the provisions of the chapter upon a showing of all of the following:
(a) Unnecessary hardship would result from the strict application of the regulations. 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; and
(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.
(2) 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 ordinance that regulates land use or development may provide for variances consistent with the provisions of this division (C).
(Ord. passed 2-20-2012; Ord. passed 3-17-2014; Ord. passed - -2022)