(a)   The zoning official is hereby authorized and it shall be his duty to enforce the provisions of this chapter. This official shall have the right to enter upon the premises at any reasonable time necessary to carry out his duties. lt is the intention of this chapter that all questions arising in connection with enforcement and interpretations of matters governed by this chapter shall be presented first to the zoning official. Appeal from his decision may be made to the planning board. The building inspector shall be and hereby is appointed as the zoning officer.

   (b)   In administering the provisions of this chapter, the zoning official shall:

   (1)   Make and maintain records of all applications for permits listed and requested in this chapter, and records of all.

   (2)   File and safely keep copies of all plans submitted and the same shall form a part of the records of his office and shall be available for inspection at reasonable times by any interested party.

   (3)   Conduct inspections of premises and upon finding that any of the provisions of this chapter are being violated, notify in writing the person responsible for such violations, indicating the nature of the violation and ordering the action necessary to correct it.

   (c)   Where the zoning official charged with making a final determination on enforcement and interpretations of matters governed by this chapter would have a direct, substantial, and readily identifiable financial impact from the outcome of the decision or if the applicant or other person subject to that decision is a person with whom the zoning official has a close familial, business, or other associational relationship then the zoning official shall notify the village manager who shall make such final determination.

(Ord. No. 29, § 3.1, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

   Cross Reference—Officers and employees, § 2-61 et seq.

(Ord. No. 29, § 3.2, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

   No new building or part thereof shall be occupied overnight and no addition or enlargement of any existing building shall be occupied and no existing building, after being altered or moved, shall be occupied and no change of use shall be made in any existing building or part thereof, until the zoning official has issued a certificate of occupancy/compliance. The zoning official may issue a temporary certificate of occupancy when he finds that actual occupancy of the building would not be dangerous, unhealthy, or unsanitary for any persons and that the building may be occupied on a specified temporary basis upon conditions which the zoning official finds would bring the building into full compliance with this chapter and other applicable village, county, and state regulations for occupancy thereof within a specified time period. In applying for and obtaining a certificate of occupancy/compliance, the following additional requirements shall be made:

   (1)   The building site shall be cleaned and building debris removed.

   (2)   Any damage to roads, utilities, and public facilities shall have been repaired and such repairs approved by the development services department and/or any utility company affected.

   (3)   The applicant presents to the zoning official a valid septic tank or sewage treatment facility completion certificate.

   (4)   A foundation survey showing the location of the foundation or a final as-built survey having been signed by a licensed surveyor in the state shall be presented showing the actual location of the foundation or structure with reference to all lot lines.

(Ord. No. 29, § 3.3, 8-17-1991; Ord. No. 2009-0701, 7-17-2009; Ord. No. 2021-0607, § 1, 6-28-2021)

   (a)   Issuance of landscape permit.

   (1)   No lot or tract within the village may be cleared, excavated, graded or filled until the building inspector has issued a landscape permit, whether or not such activity is in connection with a proposed construction.

   (2)   Special consideration must be given to preserving as much natural area as possible and to preserving all plants of special concern as designated in subsection (k) of this section.

   (3)   The site development plan required by subsection (c) of this section prior to the issuance of a permit shall clearly define those areas where existing dunes, berm and vegetative cover shall remain undisturbed and shall include plans for restabilizing any revegetation areas disturbed. Disturbance of the natural vegetation shall only be permitted in those circumstances in which such disturbance is reasonably necessary to allow safe construction of the proposed dwelling and its appurtenant facilities, such as septic tank and driveway. Such special consideration must be given to preserving as much natural area as possible.

   (4)   Provided, however, that nothing in this chapter shall require issuance of a landscape permit under this article for the maintenance of roads within the village right-of-way and hand clearing of three-inch and smaller caliper trees.

   (5)   Cutting of any tree or trees larger than three inches in caliper at four feet above grade without first obtaining a proper landscape permit will require the offender to obtain a permit, pay the required fine, and mitigate the loss of such tree or trees. Pruning tree branches and/or limbs larger than five inches in caliper without first obtaining a proper landscaping permit will require the offender to obtain a permit, pay the required fine, and mitigate the loss of such branches and/or limbs.

   (6)   In the case of competing trees, the building inspector shall make the decision of which tree to remove. The removal of dead trees with a three-inch caliper or greater, shall not require a permit but shall require the approval of the building inspector prior to removal. If a decision by the building inspector is disputed, the property owner must provide sufficient evidence to show the tree is dead, represents a danger to individuals or property, or the tree is diseased and will not live.

   (7)   Failure to comply with the requirements of the approved site plan shall be considered a violation and shall be subject to the immediate issuance of a stop work order by the building inspector and to the other procedures and remedies of subsection (k) of this section.

   (b)   Issuance of building permit. No building or other structure shall be erected, moved, extended, or structurally altered until the building inspector has issued a permit for such work.

   (c)   Application for permit; requirements. Each application to the building inspector for a permit under subsections (a)and (b) of this section shall be accompanied by a site development plan pursuant to section 32-128 of this chapter and building plans, all county, state and federal permits required by law or regulation and such other relevant information as he may require. Each residential lot shall have the lot lines clearly marked on the ground and certified as correct by a registered professional engineer or land surveyor prior to applying for a building permit. All new construction permitted must be located with a distance of 1,000 feet of a pressurized fire hydrant.

   (d)   Survey markers located on relevant points. Surveyors control markers shall be located on each property line, including street right-of-way, at the point of closest approach of the planned structure to that line. No construction shall begin on site until the markers required by this chapter have been properly established and examined and approved by the building inspector. Failure to construct any structure in accordance with these markers shall be a cause for the building inspector to issue a stop work order and to revoke a building permit previously issued.

   (e)   Areas of environmental concern. Each application for a building permit shall include information as to the location of applicable areas of environmental concern. Prior to issuance of a building permit the building inspector shall ascertain whether the proposed structure or facility conforms to the state regulations for areas of environmental concern issued pursuant to the coastal area management act.

   (f)   On-site inspection. Before a permit is issued under subsections (a) or (b) of this section, an on-site inspection of the property shall be made by the building inspector.

   (g)   Posting of permits prior to starting work. Before work is started on any property, the required permit or permits shall be posted in a prominent place on the property.

   (h)   Expiration of permit if work not started in specified time. Each permit issued pursuant to subsection (b) and (c) of this section shall expire six months after the date of its issuance unless work authorized by the permit has been started.

   (i)   Landscape permit; when required. A permit from the building inspector shall be required to remove, relocate, grade, excavate, fill or disturb sand, soil, dirt or earth or remove any naturally occurring trees, shrubbery, grass or other naturally occurring vegetation if such removal is in accordance with site plans for construction of a structure, for which plans a building permit either has been issued by the building inspector, only upon a determination by the building inspector, that the activity requested by the applicant is necessary to achieve one of the following purposes:

   (1)   Erection or protection of a structure or improvement on the property;

   (2)   Promote the growth and health of vegetation without significantly destabilizing the soil thereon or otherwise damaging the ecology of the property.

   (j)   Designation and protection of plants of special concern.

   (1)   It shall be the policy of the village to protect to the maximum extent feasible those trees and shrubs native to the maritime forest and dune areas of the village. All improvements shall be designed in such a way so as to minimize the destruction of plants of special concern and to preserve and to protect those remaining as much as practicable. Where relandscaping is required by this chapter, relandscaping shall be accomplished as much as feasible through the use of those plants which naturally occur within this area, including plants of special concern.

   (2)   The village hereby designates the following plants as plants of special concern.

   (k)   Replacement of damaged shrubs; time limit; violation. Any sand, soil, dirt or earth which has been removed, relocated, graded, excavated, added to, filled or disturbed in violation of this chapter and any naturally occurring vegetation which has been killed, damaged, destroyed or removed in violation of this chapter shall be restored or replaced within 60 days of notice from the building inspector. Each day after the 60-day period that the violator fails to perform such restoration or replacement shall constitute a new and separate violation. Any such replacement shall, where feasible, be accomplished through the use of plants which naturally occur within this area, with emphasis upon use of plants of special concern

(Ord. No. 29, § 3.4, 8-17-1991; Ord. No. 2001-019, 9-15-2001; Ord. No. 2006-0902, 9-15-2006; Ord. No. 2021-0607, § 1, 6-28-2021)

   (b)   Appeals. Appeals may be taken to the planning board by any person aggrieved or by any officer, department or board of the village affected by any decision of the zoning official. Such appeals shall be filed with the village clerk by notice specifying the grounds for appeal. Appeal shall be filed within 90 days from the date of the action being appealed. The village clerk shall transmit any properly filed appeal to the planning board. The officer from whom the appeal is taken shall forthwith transmit to the planning board all papers constituting the record upon which the action appealed from was taken together with any additional written reports or documents as he deems pertinent. The planning board may, after a public hearing, so long as such action is in conformity with the terms of this chapter reverse or affirm, wholly or in part, or may modify any order, requirements, decision or determination as ought to be made and to that end shall have the powers of the zoning official from whom the appeal is taken.

(Ord. No. 29, § 3.5, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

(Ord. No. 29, § 4.1, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

   (a)   If a building or structure is erected, constructed, reconstructed or altered, repaired, converted or maintained or any building, structure or land is occupied or used in violation of the General Statutes of North Carolina, this chapter or other regulation made under authority conferred thereby, the village may apply to the district court, civil division or any other court of competent jurisdiction for a mandatory or prohibitory injunction and order of abatement commanding the defendant to correct the unlawful condition upon or cease the unlawful use of the property.

   (b)   ln addition to an injunction, the court may enter an order of abatement as part of the judgment in the case. An order of abatement may direct that buildings or other structures on the property be closed and demolished or removed; that noxious grass and weeks be cut; that improvements or repairs be made; or that any other action be taken that is necessary to bring the property into compliance with this chapter. If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he may be cited for contempt and the village may execute the order o abatement. The village shall have a lien on the property for the cost of the executing an order of abatement.

   (c)   In addition to the civil remedies set forth herein:

   (1)   A person who fails or refuses to stop work on any structure immediately upon issuance of a stop order; or

   (2)   A person who occupies a structure overnight without issuance of a certificate of occupancy; shall be liable for a civil fine in the amount of $2000.00. In addition to this amount, which shall be payable to the village, the violator shall pay all court costs and all reasonable attorney's fees required to produce a civil judgment to enforce this provision, this provision being enacted in accordance with the provisions of G.S. 160A-175(b).

(Ord. No. 29, § 4.3, 8-17-1991; Ord. No. 2011- 0402, 4-15-2011; Ord. No. 2021-0607, § 1, 6-28-2021)

(Ord. No. 29, § 4.4, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

(Ord. No. 29, § 4.5, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

   (b)   Whenever the zoning official has probable cause to believe that a builder, contractor, subcontractor or other person, trade or business has undertaken work or activity in violation of this chapter or in violation of the terms of a permit or other development approval issued pursuant to this chapter, a written notice of violation may be issued. The notice of violation shall be delivered to the holder of the permit and to the landowner of the property involved, if the landowner is not the permittee, by personal delivery, electronic delivery, or first-class mail. Any person receiving notice shall have five days to respond to this notice. Upon expiration of the five days within which response is to be made, the zoning official shall decide whether a violation has occurred and shall notify the permit holder or landowner of his decision. If there has been a violation, he shall declare the holder of the permit and the landowner of the property involved, if the landowner is not the permittee, and any builder, contractor, subcontractor and any other person, to be in violation of this section.

   (c)   If a determination is made that a violation has occurred, the applicable permit may be suspended by order of the zoning official and all work, other than that required to remedy the violation, shall cease on the project until the violation has been corrected to the satisfaction of the zoning official, at which time and upon receipt of written notice from the zoning official that the error has been remedied, building may resume. It shall be specifically understood that failure to build in accordance with the site development plan pursuant to which the permit was issued or failure to comply in all respects with state and municipal building codes and ordinances shall be a violation of the terms of issuance of any applicable permit. Notice of violation shall specifically state the nature of the violation or violations claimed. Should construction be completed prior to any appropriate and required corrective action, no certificate of occupancy shall be issued by the village until such time as all required corrections have been performed.

(Ord. No. 29, § 4.6, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

(Ord. No. 29, § 5.1, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

   (b)   Application. An application for any change or amendment shall contain a description and/or statement of the present and proposed zoning regulations or district boundary, and the names and addresses of the owner or owners of the property involved. Such application shall be considered at the next meeting of the planning board held at least 30 days after the filing but no more than 75 days after the filing.

   (c)   Fees. There shall be a nonrefundable fee, according to the schedule adopted by the village for each application for an amendment, to cover costs of advertising and other administrative expenses involved.

   (d)   Public hearing notices. When a change in the zoning classification of a piece of property is requested, the applicant shall provide to the zoning official, a list of names and addresses, as obtained from the tax listings and tax abstract, of all abutting property owners and all owners of property under consideration for rezoning along with three sets of business (#10) envelopes stamped with a first class stamp and addressed to each person on the list. These addressed envelopes and the list shall be submitted at least 15 business days prior to the public hearing of the planning board. The zoning official shall verify the list, then mail notices of the public hearing to each person on the list at least ten but not more than 25 days prior to the date of the hearing and shall certify that fact to the village. Such certification shall be deemed conclusive in the absence of fraud. For zoning map amendments notice shall also be made by posting the property concerned at least ten days prior to the date of any hearing thereon. The second set of envelopes shall be used for notification of the recommendation of the planning board. The third set submitted will be used for notification of the village hearing.

(Ord. No. 29, § 5.2, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

   (a)   Every proposed amendment, supplement, change, modification or repeal of this chapter shall be referred to the planning board for its recommendation and report. The planning board shall hold a hearing making its recommendation.

   (b)   The following policy guidelines shall be followed by the planning board concerning zoning amendments:

   (1)   The proposal will place all property similarly situated in the area in the same category, or in appropriate complementary categories;

   (2)   There is convincing demonstration that all uses permitted under the proposed district classification would be in the general public interest and not merely in the interest of an individual or small group;

   (3)   There is convincing demonstration that all uses permitted under the proposed district classification would be appropriate in the area included in the proposed change. (When a new district designation is assigned, any use permitted in the district requirements and not merely uses which applicants state they intend to make of the property involved); and

   (4)   There is convincing demonstration that the character of the neighborhood will not be materially and adversely affected by any use permitted in the proposed change.

   (c)   A petition to amend the district boundaries or regulations established by this chapter shall be considered by the planning board at it next regular monthly meeting or any called special meeting, provided it has been filed, complete in form and content, at least 30 days prior to such meeting. Otherwise, consideration may be deferred until the following monthly meeting.

   (d)   The planning board shall render its recommendation on any properly filed petition within 30 days after the public hearing if one is held and shall submit its recommendation including its reasons therefor, to the village council.

   (e)   The planning board shall advise and comment on whether the proposed amendment is consistent with any comprehensive plan that has been adopted and any other officially adopted plan that is applicable. The planning board shall provide a written recommendation to the governing board that addresses plan consistency and other matters as deemed appropriate by the planning board, but a comment by the planning board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the governing board.

(Ord. No. 29, § 5.3, 8-17-1991; Ord. No. 2006-1003, 10-26-2006; Ord. No. 2006-1004, 10-26-2006; Ord. No. 2021-0607, § 1, 6-28-2021)

   (b)   Procedure.

   (1)   A village council member shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct substantial, and readily identifiable financial impact on the member.

   (2)   Before taking such lawful action, the village council shall consider the planning board's recommendation on each proposed amendment. Prior to adopting or rejecting any zoning amendment, the village council shall adopt a statement describing whether its action is consistent or inconsistent with an adopted comprehensive plan. Additionally, when adopting or rejecting any petition for a zoning map amendment, village council shall adopt a statement analyzing the reasonableness of the proposed rezoning taking into account, among any other applicable factors, (i) the size, physical conditions, and other attributes of the area proposed to be rezoned; (ii) the benefits and detriments to the landowners, the neighbors, and the surrounding community; (iii) the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment; (iv) why the action taken is in the public interest; and (v) any changed conditions warranting the amendment.

(Ord. No. 29, § 5.4, 8-17-1991; Ord. No. 2006-1005, 10-26-2006; Ord. No. 2021-0607, § 1, 6-28-2021)

   (a)   In order to protest any amendment to this chapter, a form provided by the zoning official and signed by the owners of 20 percent or more either of the area of the lots included in the proposed change, or of those immediately adjacent thereto, either in the rear thereof or on either side thereof, extending 100 feet therefrom, or of those directly opposite thereto extending 100 feet from the street frontage of such opposite lots, shall be filed with the zoning official. Thereafter, such amendments shall not become effective except by a favorable vote of three-fourths of all the members of the village council. These provisions shall not, however, apply to any amendment which initially zones property added to the coverage of this chapter. No protest against any change in or amendment to the regulations or district boundaries established by this chapter shall be valid or effective under the provisions of section 32-84 unless it is in the form of a written petition actually bearing the signatures of the requisite number of property owners and stating that the signers do protest the proposed change or amendment and unless it shall have been received by the zoning official in sufficient time to allow at least two normal workdays excluding Saturdays, Sundays and legal holidays, before the date established for a public hearing on the proposed change or amendment to determine the sufficiency and accuracy of the petition.

   (b)   Protest petitions only apply to zoning map amendments and are not applicable to text amendments.

   (c)   For the purposes of this section, vacant positions on the council and members who are excused from voting shall not be considered 'members of the council' for calculation of the requisite supermajority.

   (d)   A petitioner can withdraw their protest any time up to the voting time on the rezoning.

(Ord. No. 29, § 5.5, 8-17-1991; Ord. No. 2006-1006, 10-26-2006; Ord. No. 2021-0607, § 1, 6-28-2021)

   (b)   The two alternates shall substitute in the absence or temporary disqualification of any regular member or to fill a vacancy pending appointment of a member. When substituting, such alternates shall have the same voting privileges as a regular member.

   (c)   A member of the planning board shall not vote on any quasi-judicial decision in a manner that would violate an 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. A member of the planning board shall note vote on any advisory or legislative decision regarding a development regulation adopted pursuant to this chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. A member of the planning board shall note vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member nas a close familial, business, or other associational relationship. If an objection is raised to a planning board member's participation at or prior to the hearing or vote on a particular matter, whether quasi-judicial, advisory, or legislative, and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection.

(Ord. No. 29, § 6.1, 8-17-1991; Ord. No. 2006-1007, 10-26-2006; Ord. No. 2021-0607, § 1, 6-28-2021)

   (a)   Officers. The planning board shall hold an organizing meeting annually in the month of August. At that meeting, the planning board shall elect one of its members to serve as chair and preside over the board's meetings and one member to serve as vice-chair to serve as acting chair in the absence of the chair. The persons so designated shall serve in these capacities for one year and shall be eligible for reelection. Vacancies in these offices may be fille for the unexpired term only.

   (b)   Meetings.

   (1)   Other than the organizing meeting, meetings of the planning board shall be held at the call of the chair and at such other times as the majority of the board may determine. All meetings of the planning board shall be open to the public. The board shall keep minutes of its procedures, snowing the vote of each member upon each question, or, if absent or failing to vote, an indication of such fact and final disposition of all matters before the board, all of which shall be of public record. The concurring vote of four-fifths of the members of the board shall be necessary to grant a variance. A majority of the members shall be required to make an advisory or legislative decision or decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari.

   (2)   Vacant positions on the planning board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the planning board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

   (c)   Quasi-judicial procedures.

   (1)   Notice of hearing. The planning board shall set a hearing on an appeal of an administrative decision, a variance request, a special use permit, or any other quasi-judicial matter within a reasonable time, not to exceed 60 days, following receipt of an appropriate notice or application. The planning board shall give notice of the hearing to the person or entity whose appeal or application 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; and to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing. The notice(s) shall be sent by registered mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the village shall prominently post a notice of the hearing on the site that is the subject of the hearing or upon an adjacent street.

   (2)   Administrative materials and evidence.

      a.   All applications, reports, and written materials relevant to the matter being considered shall be transmitted in written or electronic form to the planning board and to the appellant or applicant and to the landowner if that person is not the appellant or applicant at least five days prior to the hearing. Such materials shall become part of the hearing record unless objected to and excluded.

      b.   The chair or any member temporarily acting as chair is authorized to rule on jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party. The chair's rulings may be appealed to the full planning board at the hearing.

      c.   All testimony before the planning board in a quasi-judicial matter must be under oath and recorded. The chair or any member temporarily acting as chair or the village clerk are authorized to administer oaths to witnesses in any matter coming before the planning board.

      d.   The planning board through its chair or any member temporarily acted as chair may subpoena witnesses and compel the production of evidence as permitted by state law.

   (3)   Voting.

      a.   A simple majority shall be required to decide all quasi-judicial matters or to determine an appeal made in the nature of certiorari, except that the concurring vote of four-fifths of the members shall be necessary to grant a variance.

      b.   Vacant positions on the planning board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the planning board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

   (4)   Decisions.

      a.   The planning board shall determine contested facts and make its decision within a reasonable time, not to exceed 15 days following the date of the hearing. 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, reflect the planning board's determination of contested facts and their application to the applicable standards, and be approved by the planning board and 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 village clerk.

      c.   The zoning official shall deliver the decision of the planning board within a reasonable time by personal delivery, electronic mail, or first-class mail to the appellant or applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective. Following delivery, the zoning official shall certify to the village clerk that proper notice has been made.

(Ord. No. 29, § 6.2, 8-17-1991; Ord. No. 2006-1008, 10-26-2006; Ord. No. 2021-0607, § 1, 6-28-2021)

(Ord. No. 29, § 6.3, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

   (a)   Generally.

   (1)   The planning board shall hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the zoning official in the enforcement of this chapter. The board may, so long as such action is in conformity with the terms of this chapter, reverse or affirm wholly or partly or may modify the order, requirement, decision or determination and to that end shall have the powers of the zoning official from whom appeal is taken.

   (2)   The planning board shall authorize in specific cases variance from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in undue hardship, so that the spirit of this chapter shall be observed and substantial justice done.

   (b)   Appeals.

   (1)   An appeal from the decision of the zoning official may be taken to the planning board by any person, firm, or corporation with an ownership, leasehold or other property interest in the property that is subject of the decision being appealed, an option or contract to purchase the property that is the subject of the decision being appealed, or by any officer or department of the village. Such appeal shall be taken within 30 days after the decision by the zoning official, by filing with the village clerk and with the planning board a notice of appeal, specifying the grounds thereof. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal.

   (2)   An appeal stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal and any subsequent civil actions, unless the zoning official 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 this chapter, in which case, proceedings shall not be stayed other than by a restraining order, which may be granted by a court of record to whom an appeal has been made. If enforcement proceedings are not stayed, the appellant may file with the zoning official a request for an expedited hearing of the appeal, and the planning board shall meet to hear the appeal within 15 days after the request is filed.

   (3)   When hearing an appeal, the planning board 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 planning board shall have all the powers of the official who made the decision.

   (c)   Variances.

   (1)   Public hearing and certain conditions required. In order to grant a variance, the planning board must conduct an evidentiary public hearing and find the following conditions to be met:

      a.   There are extraordinary and exceptional conditions pertaining to the particular piece of property in questions because of its size, shape, or topography that are not applicable to other lands or structures in that same district;

      b.   Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the zoning districts in which the property is located;

      c.   A literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other residents of the zoning district in which the property is located;

      d.   The requested variance will be in harmony with the purpose and intent of this chapter and will not be injurious to the neighborhood or to the general welfare;

      e.   The special circumstances are not the result of the actions of the applicant; and

      f.   The variance requested is the minimum variance that will make possible the legal use of the land, building or structure.

      g.   Where applicable, the planning board may also consider whether granting a variance is necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.

   (2)   Evaluation of impact of grant. In considering all proposed variances from this chapter, the planning board shall, before making any finding in a specified case, first determine that the proposed variance will not constitute any change in the zone shown on the zoning map and will not impair an adequate supply of light and air to adjacent property, or materially increase the public danger of fire and safety, or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, morals and general welfare.

   (3)   No variance for prohibited uses. No permitted use of land in other districts shall be considered grounds for the issuance of a variance. Under no circumstances shall the planning board grant a variance to allow a use not permissible under the terms of this chapter in the district involved, or any expressly or by implication prohibited by the terms of this chapter in the district.

   (4)   Attachment of conditions. In granting a variance the planning board may attach thereto such conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable in furtherance of the purposes of this chapter. In order for such conditions to be effective the applicant or landowner must consent to the same in writing. Violation of such conditions and safeguards when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under sections 32-61 through 32-65 of this chapter.

(Ord. No. 29, § 6.4, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

(Ord. No. 29, § 6.5, 8-17-1991; Ord. No. 2021- 0607, § 1, 6-28-2021)

(Ord. No. 2006-1009, 10-26-2006; Ord. No. 2021-0607, § 1, 6-28-2021)