(A)   A Board of Adjustment is hereby established. The Board shall consist of five members appointed by the Town Board of Commissioners. The members of the Board of Adjustment who have served as members of the Board of Adjustment under a zoning ordinance which was in effect prior to the adoption of this chapter shall serve the balance of the term to which the members were appointed.

   (B)   Upon completion of these terms of office, additional appointments shall be made on a staggered- term basis with one member appointed for a term of one year; two members appointed for a term of two years and two members appointed for a term of three years. All additional appointments to the Board shall be for three-year terms.

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)

   The Board of Commissioners shall also appoint one alternate member to serve on the Board of Adjustment in the absence, for any cause, of any regular member. Such alternate member shall be appointed for a three-year term. Such alternate member, while attending any regular or special meeting of the Board and serving in the absence of any regular member, shall have and exercise all the powers and duties of such regular member so absent. The alternate member shall be subject to the provisions of § 153.107.

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)

   The Board shall annually elect a Chairperson and a Vice-Chairperson from among its members. The Chairperson in turn will appoint a Secretary, which may be an employee of the town, and such other subordinates as may be authorized by the Town Board of Commissioners. The Chairperson, or in his or her absence the Vice-Chairperson, may administer oaths and request the attendance of witnesses in accordance with G.S. § 160D-406. The Board shall keep minutes of its proceedings, including the names of members present and absent, a record of the vote on every question, or abstention from voting, if any, together with records of its examinations and other official actions.

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)

   The powers and duties of the Board of Adjustment shall be as follows:

      (2)   Notice of hearings conducted pursuant to this division (B) 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 entitled to receive notice as provided by the zoning or unified development ordinance. In the absence of evidence to the contrary, the town may rely on the county tax listings to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of 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. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.

      (3)   The Board of Adjustment 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. The Board of Adjustment must allow parties with standing to participate fully in the evidentiary hearing, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments. The Board may allow parties without standing to present competent, material, and substantial evidence that is not repetitive. If an objection arises at the hearing as to the inclusion or exclusion of administrative materials, the Board Chair must rule on this objection at the hearing. An appeal of this ruling may be considered by the full Board pursuant to G.S. § 160D-406(d). 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. A quasi-judicial decision is effective upon filing the written decision with the Town Manager. The decision shall be delivered by personal delivery, electronic mail, or by first class mail to the applicant or property owner as may be applicable, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The Town Manager shall certify that proper notice has been made.

      (4)   Every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari (G.S. § 160D-406(k)). A petition for review shall be filed with the Clerk of Superior Court within the period specified by G.S. § 160D-1405(d).

      (5)   Members of the Board of Adjustment exercising quasi-judicial functions shall not have a fixed opinion on a matter prior to hearing; shall not have undisclosed ex-parte communication with an applicant, a close familial, business, or other associational relationship with an applicant or a financial interest in the outcome. If an objection is raised to a member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.

      (6)   The Chair of the Board of Adjustment or any member acting as Chair and the Town Manager 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 of Adjustment, willfully swears falsely is guilty of a Class I misdemeanor.

      (7)   The Chair of the Board of Adjustment or anyone acting as Chair, may subpoena witnesses and compel the production of evidence. Any person with standing under G.S. § 160D-406(g) may make a written request to the Chair explaining why it is necessary for certain witnesses or evidence to be compelled. The Chair or person acting as the Chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope and not oppressive. The Chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the Chair may be appealed to the full Board of Adjustment. If a person subpoenaed fails to obey the subpoena, the Board of Adjustment or the party that requested the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed.

      (1)   Upon application, the Board of Adjustment may grant in particular cases and subject to appropriate conditions and safeguards, permits for special uses as authorized by this chapter, and set forth as special uses under the various use districts.

      (2)   A special use permit may be granted by the Board of Adjustment only after making the following findings:

         (a)   An application for the special use has been submitted as prescribed by this chapter;

         (b)   1.   If the Board of Adjustment finds, in the particular case in question, that the use, including any proposed structures:

               a.   Will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved;

               b.   Meets all required conditions and specifications of this chapter and other applicable rules, regulations, and standards;

               c.   Will not substantially injure the value of adjoining or abutting property;

               d.   Will be in general conformity with the plan of development of the town and its environs;

               e.   Will be reasonably compatible with significant natural and topographic features on the site and within the immediate vicinity of the site given the proposed site design and structure design;

               f.   Will be in harmony with scale, bulk, height, coverage, density, and character of the area or neighborhood in which it is located; or

               g.   Is appropriately located with respect to transportation facilities, water supply, fire and police protection, waste disposal, and similar facilities, and will not cause undue traffic congestion or create a traffic hazard.

            2.   In granting such a permit, the Board of Adjustment may designate such conditions in connection therewith that will, in its opinion, assure that the proposed use will conform to the requirements and spirit of this chapter. However, the Board of Adjustment shall not impose conditions on special use permits that the town is not statutorily allowed to impose.

         (c)   Before any special use permit is issued, the Board shall make written findings certifying compliance with the specific rules governing the individual special use (see § 153.008), and that satisfactory provision and arrangement has been made for at least the following, where applicable:

            1.   Satisfactory ingress and egress to property and proposed structures thereon, with particular reference to automotive and pedestrian safety and convenience, traffic flow, and control;

            2.   Provision of off-street parking and loading areas where required, with particular attention to the items in division (C)(2)(c)1. above, and the economic, noise, and odor effects of the special use on adjoining properties in the area;

            3.   Adequate and proper utilities, with reference to locations, availability, and compatibility;

            4.   Buffering, with reference to type, location, and dimensions;

            5.   Signs, if any, and proposed exterior lighting, with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;

            6.   Playgrounds, open spaces, yards, landscaping, access ways, pedestrian ways, with reference to location, size, and suitability;

            7.   Buildings and structures, with reference to location, size, and use;

            8.   Hours of operation, with particular reference to protecting and maintaining the character of the neighborhood;

            9.    With the exception of Americans with Disabilities Act, being 42 U.S.C. § 12101, lighting requirements and street lighting, the design standards as outlined in § 153.047,"Site Design and Form and Mass Commercial Buildings," shall apply when exterior lighting is proposed and/or required;

            10.   A site plan has been submitted as required in § 153.008; and

            11.   The applicant/landowner must provide written consent to conditions placed on a special use permit by the Board of Adjustment.

         (d)   1.   The Zoning Administrator shall make periodic inspections during construction as well as a final inspection after construction is complete to determine whether the conditions imposed and agreements made in the issuance of the permit have been met as well as whether all other requirements of this chapter have been met. The Zoning Administrator shall report his or her findings to the Board of Adjustment.

            2.   If at any time after a special use permit has been issued, the Board of Adjustment determines that the conditions imposed and agreements made have not been or are not being fulfilled by the holder of a special use permit, the permit shall be terminated and the operation of such use discontinued.

            3.   If a special use permit is terminated for any reason, it may be reinstated only after reapplying for a special use permit.

      (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 conditions that are common to the neighborhood or the 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; and

      (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.

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)

      (1)   The Board of Adjustment shall hear and decide appeals from decisions of the Town Manager.

      (2)   The following apply to all appeals heard by the Board of Adjustment:

         (a)   Any person who has standing under G.S. § 160D-406(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 Manager. The notice of appeal shall state the grounds for the appeal.

         (b)   The Town Manager shall give written notice 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 owners. The written notice shall be delivered by personal delivery, first-class mail, or other electronic forms. If provided via electronic form, the file must be protected from further editing.

         (c)   The owner or other party shall have 30 days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have 30 days from the receipt from any source of actual or constructive notice of the decision within which to file an appeal.

         (d)   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. Absent an ordinance provision to the contrary, posting of signs shall not be required.

         (e)   The Town Manager shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from are taken. The Town Manager 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.

         (f)   1.   An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the Town Manager 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.

            2.   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 Town Manager 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.

            3.   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.

         (g)   Subject to the provisions of division (B)(2)(f) above, the Board of Adjustment shall hear and decide the appeal within a reasonable time.

         (h)   1.   During the conduct of a hearing, any party may appear in person or by agent or by attorney at the hearing.

            2.   The order of business for the hearing shall be as follows:

               a.   The Chair, or such person as he or she shall direct, shall give a preliminary statement of the case;

               b.   The applicant shall present the argument in support of the appeal or application;

               c.   Persons opposed to granting the appeal or the application shall present their argument against the application;

               d.   Both sides will be permitted to present rebuttals to opposing testimony; and

               e.   The Chair or such person as he or she shall direct shall summarize the evidence which has been presented, giving the parties the opportunity to make objections or corrections. Witnesses may be called and factual evidence may be submitted, but the Board shall not be limited to only consideration of only such evidence as would be admissible in a court of law. The Board may place parties and witnesses under oath and the opposing party may cross-examine them. The Town Manager, or other town official who filed the notice of violation, 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 Town Manager.

         (i)   When hearing an appeal pursuant to G.S. § 160A-400.9(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in G.S. § 160A-393(k).

         (j)   The parties to an appeal that has been made under this division (B) may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.

         (a)   Written notice by certified or registered mail of the decision in a case shall be given to the applicant or appellant by the Secretary as soon as practical after the case is decided. In addition, written notice shall be given to owners of the subject property and to other persons who have made written request for such notice. The final decision of the Board shall be shown in the record of the case as entered in the minutes of the Board and signed by the Secretary and the Chairperson upon approval of the minutes by the Board.

         (b)   1.   Such record shall show the reasons for the determination, with a summary of the evidence introduced and the findings of fact made by the Board. The decision on an appeal may reverse or affirm, wholly or partly, or modify the decision or determination of the Zoning Administrator. Where a variance is granted, the record shall state in detail any exceptional difficulty or unnecessary hardship upon which the application for the variance was based and which the Board finds to exist.

            2.   The record shall state in detail what, if any, conditions and safeguards are imposed by the Board in connection with the granting of a variance.

            3.   Where a special use permit is granted, the record shall indicate, by reference to the appropriate sections of the ordinance, that all requirements and standards for the particular special use have been met.

      (6)   Variance and special use approvals run with the land.

      (7)   Revocations of previously approved variance and special use approvals must follow the same process as used for the approval.

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)

   Appeals from the Board of Adjustment may be taken to the courts pursuant to G.S. § 160D-406(k).

(Ord. passed 10-19-1983; Ord. passed 6-8-2021)