A. Purpose and Intent. This appeal procedure is proposed to establish a clear and predictable procedure for persons with standing to appeal a decision, or interpretation by a Town official.
B. Applicability.
1. Appeals of decisions or interpretations by a Town official made pursuant to this Ordinance shall be reviewed and decided by the Board of Adjustment (BOA) in accordance with this section.
2. Appeals of decisions made by the Board of Commissioners or BOA shall be to the Superior Court for Wake County, in accordance with state law.
3. In the event an applicant wishes to appeal a standard outside this Ordinance, or a decision by a staff member not addressed by this Ordinance, the appeal shall be made to the Town Manager in accordance with Town policy.
C. Initiation. An appeal shall be initiated by filing a written notice of appeal with the Planning Director within 30 days of the date the written determination or decision being appealed is received by the applicant (except where otherwise specified in this Ordinance).
D. Appeal Procedure. The Appeal procedure is described in Figure 2.2.3, Appeal Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
E. Review and Decision by the Board of Adjustment.
1. The BOA, at the conclusion of a quasi-judicial public hearing, shall decide the application for the appeal.
2. The decision shall be based on the competent, material, and substantial evidence in the record of the appeal, as supplemented by arguments presented at the quasi-judicial hearing, and the standards in Section 2.2.3.F, Appeal Review Standards.
3. The decision shall be one of the following:
a. Affirmation of the decision or interpretation (in whole or in part);
b. Modification of the decision or interpretation (in whole or in part); or
c. Reversal of the decision or interpretation (in whole or in part).
4. A vote to reverse or modify a decision or determination shall require approval of a majority of a quorum present at the hearing.
5. Each decision shall be made in writing and reflect the BOA's determination of contested facts and their application to the standards in this Ordinance.
6. The written decision shall be signed by the Chair or other duly authorized member of the BOA.
7. The decision of the BOA shall be effective upon the filing of the written decision in the offices of the Planning Department.
F. Appeal Review Standards.
1. The BOA is limited to the following determinations in considering the appeal:
a. Whether the decision-maker erred in the interpretation of this Ordinance; or
b. Whether the decision-maker erred in determining whether a standard of this Ordinance was met.
2. The BOA shall not hear any evidence or make any decision based on hardships or special conditions except as part of an application for a variance.
G. Effect.
1. An appeal stops all proceedings and actions by the applicant.
2. A Town official may file a certification requiring the applicant to continue with some portion of the development activity only in cases where a stop of development activity would cause imminent peril to life or property.
3. If certification by a Town official is filed, development activity specified in the certification shall not be stayed except through issuance of a restraining order by a court of competent jurisdiction.
4. The appellant may file for an expedited hearing of the appeal, and the BOA shall meet to consider the appeal with 15 days of the date the request is filed.
5. The filing of an appeal prevents the filing of an application for a zoning map amendment, special use permit, zoning compliance permit, or building permit for the same land subject to an appeal application, as well as the filing of a text amendment application by the same party filing the appeal until the appeal application is decided or appealed to the courts.
H. Amendment. A decision on an appeal shall not be amended, but may be appealed to the Superior Court for Wake County.
I. Expiration. A decision on an appeal shall not expire.
J. Appeal.
1. Any decision by the BOA shall be subject to review by the Superior Court of Wake County by proceedings in the nature of certiorari and in accordance with Section 160D-1402 of the North Carolina General Statutes.
2. Petitions for review must be filed with the Clerk of Court within 30 days of the date the decision is filed in the office of the appropriate review authority and delivered by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective.
(Ord. 2020-36, passed 12-2-2019; Ord. 2021-65, passed 5-3-2021)