Section 155.4.4  Appeals, Variances, and Interpretations.  Appeals.
   (A)   The Board of Adjustment shall hear and decide appeals from decisions of the UDO Administrator concerning the interpretation or administration of Chapter 155 of the Town Code.
   (B)   Appeals under the provisions of this Section may be filed by any person who has standing under G.S. § 160A-393(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.
   (C)   Decisions concerning the interpretation or administration of this chapter shall be given in writing 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.
   (D)   The owner or other party shall have thirty (30) days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have thirty (30) days from receipt from any source of actual or constructive notice of the decision within which to file an appeal.
   (E)   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 (6") 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 (10) 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 a sign as described herein is not required but shall be done at the discretion of the landowner or applicant. The Town may post such sign.
   (F)   The UDO Administrator shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the action appealed from is taken. The UDO Administrator 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.
   (G)   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 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.
   (H)   Subject to the provisions of subdivision (G) of this subsection, the Board of Adjustment shall hear and decide the appeal within a reasonable time.
   (I)   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.  Variances.
   (A)   An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application with the UDO Administrator. Applications shall be handled in the same manner as applications for permits.
   (B)   A variance may be granted by the Board of Adjustment if it concludes that, by granting the variance, the following findings are supported by the Board of Adjustment decision:
      (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.
      (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.
   (C)   Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.
   (D)   The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit, or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of this Ordinance.  Interpretations.
   (A)   The Board of Adjustment is authorized to interpret the zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the UDO Administrator, they shall be handled as provided in Section
   (B)   An application for a map interpretation shall be submitted to the Board of Adjustment by filing a standard Town of Wrightsville Beach appeal form with UDO Administrator. The application shall contain sufficient information to enable the board to make the necessary interpretation.
   (C)   Where uncertainty exists as to the boundaries of districts as shown on the Official Zoning Map, the rules of interpretation as specified in Section 155.1.10 shall be applied. Where uncertainties continue to exist after application of the above rules, appeal may be taken to the Board of Adjustment as provided in Section of this Ordinance.
   (D)   Interpretations of the location of floodway and floodplain boundary lines may be made by the UDO Administrator as provided in Article 155.11, Part 1.  Requests to be Heard Expeditiously. As provided in Article 155.3, the Board of Adjustment shall hear and decide all appeals, variance requests, and requests for interpretations, including map boundaries, as expeditiously as possible, consistent with the need to follow regularly established agenda procedures, provide notice in accordance with Section, and obtain the necessary information to make sound decisions.  Hearing Required on Appeals, Variances and Interpretations.
   (A)   Before making a decision on an appeal or an application for a variance or interpretation, the Board of Adjustment shall hold a hearing on the appeal or application.
   (B)   Subject to subsection (C), the hearing shall be open to the public. All persons presenting evidence or arguments shall be sworn in by the Chairman prior to the presentation of any evidence or arguments.
   (C)   The Board of Adjustment may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross-examination of witnesses so that the matter at issue may be heard and decided without undue delay.
   (D)   The Board of Adjustment may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made. No further notice of a continued hearing need be published unless a period of six weeks or more elapses between hearing dates.
   (E)   The required application fee and all supporting materials must be received by the UDO Administrator before an application is considered complete and a hearing scheduled.  Notice of Hearing. The UDO Administrator shall give notice of any hearing required by Section as follows:
   (A)   Notice of hearings conducted pursuant to 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 owning real property, any portion of which is located within 150 feet of the lot that is the subject of the hearing.
   (B)   In the absence of evidence to the contrary, the Town may rely on the county tax listings to determine owners of property entitled to be mailed notice.
   (C)   The notice must be deposited in the mail at least ten (10) days, but not more than twenty-five (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.  Burden of Proof in Appeals and Variances.
   (A)   When an appeal is taken to the Board of Adjustment in accordance with Section, the UDO Administrator shall have the initial burden of presenting to the board sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.
   (B)   The burden of presenting evidence sufficient to allow the Board of Adjustment to reach the conclusions set forth in Section, as well as the burden of persuasion on those issues, remains with the applicant seeking the variance.  Board of Adjustment Action on Appeals and Variances.
   (A)   Appeals. A motion to reverse, affirm, or modify the order, requirement, decision, or determination appealed from shall include a statement of the specific reasons or findings of facts that support the motion. A favorable vote of the majority of the members shall be required to reverse or modify the order, requirement, decision or determination appealed from.
   (B)   Variance. The Board must take a separate vote and vote affirmatively (by a four-fifths majority-see Section 155.3.13) on each of the required findings stated in Section Insofar as practicable, a motion to make an affirmative finding on each of the requirements set forth in Section shall include a statement of the specific reasons or findings of fact supporting such motion.
   (C)   A motion to deny a variance may be made on the basis that any one or more of the criteria set forth in Section are not satisfied or that the application is incomplete. Insofar as practicable, such a motion shall include a statement of the specific reasons or findings of fact that support it. This motion is adopted as the Board’s decision if supported by more than one-fifth of the Board’s membership (excluding vacant seats).  Evidence/Presentation of Evidence.
   (A)   The provisions of this section apply to all hearings for which a notice is required by Section
   (B)   All persons who intend to present evidence to the Board of Adjustment shall be sworn in by the Chairman.
   (C)   All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (necessary findings) shall be based upon competent, material, and substantial evidence.
   (D)   The entirety of a quasi-judicial hearing and deliberation shall be conducted in open session.
   (E)   Parties to a quasi-judicial hearing have a right to cross-examine witnesses.
   (F)   Factual findings must not be based on hearsay evidence which would be inadmissible in a court of law.
   (G)   If a Board of Adjustment member has prior or specialized knowledge about a case, that knowledge should be disclosed to the rest of the Board and parties at the beginning of the hearing.
   (H)   The Board of Adjustment, in conducting the hearing, has the authority to issue subpoenas to compel testimony or the production of evidence deemed necessary to determine the matter.  Modification of Application at Hearing.
   (A)   In response to questions or comments by persons appearing at the hearing or to suggestions or recommendations by the Board of Adjustment, the applicant may agree to modify his application, including the plans and specifications submitted.
   (B)   Unless such modifications are so substantial or extensive that the Board cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the Board may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the planning staff.  Record.
   (A)   Accurate written minutes shall be kept of all such proceedings.
   (B)   Whenever practicable, all documentary evidence, including any exhibits, presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings and shall be kept by the Town for at least two years.  Written Decision.
   (A)   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.
   (B)   A quasi-judicial decision is effective upon filing the written decision with the Clerk to the Board. The decision of the Board shall be delivered by personal delivery, or electronic mail, or by first-class mail to the applicant, property owner, and to any other person who has submitted a written request for a copy prior to the date the decision becomes effective. The Director of Planning and Parks or his/her designee shall certify that proper notice has been made.
   (C)   Every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari pursuant to G.S. § 160A-393. A petition for review shall be filed with the Clerk of Superior Court by the later of thirty (30) days after the decision is effective or after a written copy thereof is given in accordance with subsection (B) above. When first-class mail is used to deliver notice, three (3) days shall be added to the time to file the petition.
(Ord. 1695, passed 11-8-12; Am. Ord. 1727, passed 5-13-14)