(A) The Board of Adjustment shall hear and decide appeals from decisions of the UDO Administrator concerning the interpretation or administration of development regulations contained in Chapter 155 of the Town Code.
(B) Appeals under the provisions of this section may be filed by any person who has standing under N.C.G.S. § 160D-1402(c) or by the town to the Board of Adjustment.
(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, or the notice of determination, shall be delivered by personal delivery, electronic mail, or by first class mail. The town shall assume that if a notice of determination is sent by mail, it is received on the third business day after it is sent.
(D) The owner or other party shall have 30 days from receipt of the notice of determination within which to file an appeal with the Town Clerk. 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. The notice of appeal shall state the grounds for the 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 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. 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, including fines, 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 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 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 development approval applications including 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, or his/her successor, 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.
(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 development approvals.
(B) A variance may be granted by the Board of Adjustment if it concludes that, by granting the variance, all of 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) No change in permitted uses may be authorized by a variance.
(D) Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.
(E) 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.
(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 155.4.4.1.
(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 155.4.4.1.
(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.
155.4.4.4 Requests to be Heard Expeditiously. As provided in Article 155.3, the decision- making board shall hear and decide all appeals, variance requests, special use permits, 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 subsection 155.4.4.6, and obtain the necessary information to make sound decisions.
(A) Boards shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, variances, or interpretations.
(B) 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.
(A) Notice of evidentiary hearings conducted pursuant to subsection 155.4.4.5 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 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.
(D) The Board of Adjustment may continue an evidentiary hearing that has been convened without further advertisement.
(A) The provisions of this section apply to all evidentiary hearings for which a notice is required by subsection 155.4.4.6.
(B) The applicant, the local government, and any person who would have standing to appeal the decision under N.C.G.S. § 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board.
(C) The chair of the board or any member acting as chair and the clerk 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 determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
(D) The administrator or staff to the board shall transmit to the board all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form.
(E) 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 N.C.G.S. § 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review. 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.
(F) The board making a quasi-judicial decision through the chair or, in the chair's absence, anyone acting as chair may subpoena witnesses and compel the production of evidence.
(G) The entirety of a quasi-judicial hearing and deliberation shall be conducted in open session.
(H) Factual findings must not be based on hearsay evidence which would be inadmissible in a court of law.
(I) If a member of the decision-making board 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. A member of any board exercising quasi-judicial functions pursuant to this chapter 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 board member's participation at or prior to the hearing or vote on a particular matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection.
(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) Variances.
(1) The board must vote affirmatively by a four-fifths majority; see subsection 155.3.13. in granting a variance. Insofar as practicable, the motion shall include a statement of the specific reasons or findings of fact supporting such motion for each of the requirements set forth in subsection 155.4.4.2(B).
(2) A motion to deny a variance may be made on the basis that any one or more of the criteria set forth in subsection 155.4.4.2(B) 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).
(C) A majority of the members shall be required to decide any other quasi-judicial matters.
(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.
(A) Accurate written minutes shall be kept of all such proceedings.
(B) 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.
(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 N.C.G.S. § 160D-1402. A petition for review shall be filed with the Clerk of Superior Court by the later of 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 days shall be added to the time to file the petition.
(Ord. 1695, passed 11-8-12; Am. Ord. 1727, passed 5-13-14; Am. Ord. 1838, passed 3-10-22)