§ 4.10 APPEAL OF ADMINISTRATIVE DECISION.
   4.10.1   Applicability. As specified in G.S. § 160D-405, an appeal by any person aggrieved by a final order, interpretation, or decision of the UDO Administrator or other administrator in regard to the provisions of this ordinance may be taken to the Board of Adjustment.
   4.10.2   Application requirements.
      A.   Any person who has standing under G.S. § 160D-1402(c) or the town may appeal a decision to the Board of Adjustment. An appeal of an administrative decision shall be taken by filing a written notice of appeal with the UDO Administrator and the Board of Adjustment specifying the grounds for the appeal. The appeal shall be submitted on a form provided by the town.
      B.   A notice of appeal of an administrative decision shall be considered filed when a completed application is delivered to the UDO Administrator. The date and time of filing shall be entered on the notice.
   4.10.3   Deadline for submission of application. An appeal of an administrative decision shall be filed with the UDO Administrator and Board of Adjustment within 30 days of receipt of the written decision. The official who made the decision shall give written notice to the owner of the property subject to 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. Any person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the final decision or notice of 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.
   4.10.4   Notice and public hearings. The Board of Adjustment shall hold a quasi-judicial evidentiary hearing and give posted and mailed notice in accordance with Article 4.1.4.
   4.10.5   Action by UDO Administrator. The UDO Administrator shall transmit to the Board of Adjustment all the documents and exhibits constituting the record upon which the action appealed was 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. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the town, shall be present at the evidentiary hearing as a witness.
   4.10.6   Action by Board of Adjustment.
      A.   The Board of Adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement, 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 of Adjustment shall have all the powers of the officer from whom the appeal is taken.
      B.   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 fact that support the motion.
      C.   If a motion to reverse or modify is not made, or fails to receive the concurring vote of a simple majority of the members of the Board, the appeal shall be denied.
   4.10.7   Effect of appeal.
      A.   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.
      B.   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.
      C.   An appeal shall not stop action lawfully approved (including construction activities authorized by a building permit). Only actions presumed in violation of this ordinance are stayed.
(Ord. passed 2-3-2021)
Statutory reference:
   Board decisions, see G.S. § 160D-406(j)