(a)   A Zoning Board of Adjustment is hereby established.

   (1)   Said board shall consist of nine (9) members: three members shall be appointed by the Haywood County Board of Commissioners, one of which shall be a resident of that portion of the Pigeon River Watershed that lies within the town’s extraterritorial jurisdiction, and one of which shall be a resident of the Haywood County portion of the Rough Creek extraterritorial jurisdiction area, and one member shall be appointed by the Buncombe County Board of Commissioners and shall be a resident of the Buncombe County portion of the Rough Creek extraterritorial jurisdiction and one member shall be a resident of that portion of the Asheville Highway ETJ that lies within the town’s extraterritorial jurisdiction. To determine proportional representation for ETJ representation, population estimates shall be updated no less frequently than after each decennial census.

   (2)   However, in the event either County Board of Commissioners is unable to find a resident of its portion of the extraterritorial jurisdiction who is willing to serve on the Board of Adjustment, it shall appoint any resident of the respective county to serve on the Board of Adjustment. All appointments to the board shall be for three (3) year terms. Any vacancy in membership shall be filled for the unexpired term by the appropriate governing board. Members can succeed themselves.

   (3)   Members shall serve without pay, but may be reimbursed for any expenses incurred while representing the Board.

   (4)   The respective governing boards shall each appoint one (1) alternate member who shall meet the same residence requirements as regular members. Alternate members shall be appointed for the same term, at the same time, and in the same manner as regular members. Each alternate member while attending any regular or special meeting of the Board and serving in the absence of a regular member of the same jurisdiction, shall have and may exercise all the powers and duties of a regular member.

   (5) The members of the Board of Adjustment who were serving at the time of adoption of the amendment calling for extraterritorial jurisdiction representation shall serve the balance of the term to which said member was appointed.

(Amended by Ord. of 9/15/87; Amended by Ord. of 9/14/93; Amended by Ord. of 7/22/97; Amended by Ord. of 6/24/21)

   (a)   The four (4) members appointed to the Board of Adjustment by the respective Board of County Commissioners as representatives of the extraterritorial jurisdiction area outside the Town of Canton shall be residents of such area and citizens of the respective county. Such members shall have equal rights, privileges, and duties with other members of the Board in all matters pertaining to the regulation of the extraterritorial jurisdiction.

   (b)   On matters pertaining to the extra-territorial jurisdiction, the concurring vote of eight members of the Board shall be necessary to grant a variance under the provisions of this chapter, but simple majority is necessary to reverse any order, requirement, decision, or determination of the Administrator, or to decide in favor of the applicant concerning any matter which it is required to pass under the zoning ordinance.

   (c)   On all matters pertaining to the incorporated area of the Town of Canton, only those Board members representing the Town of Canton shall vote. The concurring vote of four (4) members of Board from the Town of Canton shall be necessary to grant a variance from the provisions of this chapter. However, a simple majority is needed to reverse any order, requirement, decision, or determination of the Administrator, or to decide in favor of the applicant concerning any matter upon which it is required to pass under this chapter. On all appeals, applications, and other matters brought before the Zoning Board of Adjustment, said Board shall inform, in writing, all parties involved of its decisions and the reasons therefor. (Amended by Ord. of 9/15/85; Amended by Ord. of 9/14/93; Amended by Ord. of 7/22/97; Amended by Ord. of 6/24/21)

   (a)   All members appointed to the Zoning Board of Adjustment shall, before entering their duties, qualify by taking an oath of office. The Board of Adjustment shall elect a chairman and vice- chairman from its members who shall serve for one (1) year or until re-elected, or until their successors are elected. The Board shall appoint a secretary, who may be a municipal officer, an employee of the Town, a member of the Planning Board, or a member of the Board of Adjustment. The Board shall adopt rules and bylaws in accordance with the provisions of this chapter and of Article 6, Chapter 160D of the General Statutes of North Carolina. Meetings and, when necessary, evidentiary hearings, of the Board shall be held at the call of the chairman and at such other times as the Board may determine. The chairman, or in his absence the vice-chairman, is authorized to administer oaths and compel the attendance of witnesses by subpoena. All meetings of the Board shall be open to the public. The Zoning Board of Adjustment shall keep minutes of board proceedings.

   (b)   Conflict of interest. A member of the Zoning Board of Adjustment shall not participate in or vote on any 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 relationship with an affected person, or a financial interest in the outcome of the matter.

(As Amended by Ord. of 6/24/21)

   The Zoning Board of Adjustment shall have the following powers and duties:

   (a)   Appeals of administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Administrator in the enforcement of this chapter.

   (1)   An appeal from the decision of the Administrator may be taken to the Board of Adjustment by any person aggrieved or affected by such decision. The appeal shall be taken within 30 days from receipt of written notice by filing with the Zoning Board of Adjustment a notice of appeal specifying the grounds thereof. In the absence of evidence to the contrary, notice pursuant to G.S. § 160D-403(b) given by first class mail shall be deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.

   (2)   The Administrator shall forthwith transmit to the Board all papers constituting the record upon which the action appealed from was taken.

   (3)   An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed unless the official who made the decision 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 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 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 development regulation shall not stay the further review of an application for development approvals to use such property; in these situations the appellant or local government may request and the Board may grant a stay of a final decision of development approval applications, including building permits affected by the issue appealed.

   (b)   Special use permits. To hear and decide special use permits to the terms of this chapter upon which the Board of Adjustment is required to pass under this chapter. To decide such questions as are involved in determining whether a special use permit should be granted. To grant special use permits with such conditions and safeguards as are appropriate under this chapter, or to deny special use permits when not in harmony with the intent of this chapter. A special use permit may be granted by the Board of Adjustment only after a hearing:

   (1)   The Board of Adjustment is empowered to grant the special use permit and that the granting of the special use permit will not adversely affect the public interest.

   (2)   Before any special use permit shall be issued, the Board shall make written findings certifying compliance with all specific rules governing the individual development and that satisfactory provision and arrangement has been made concerning the following wherever applicable:

   a.   Ingress and egress to property and proposed structure with particular reference to automotive and pedestrian safety, convenience, traffic flow and control, and access in case of fire or catastrophe.

   b.   Refuse and service areas, with particular reference to the items in a. and b. above.

   c.   Off-street parking and loading areas where required with particular attention to the items in a. above and to the economic, noise, glare or odor effects of the special use on adjoining properties and generally in the district.

   d.   Utilities, with reference to location, availability and compatibility.

   e.   Screening and buffering, with reference to type, dimensions, and character.

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

   g.   Required yards and other open spaces.

   h.   General compatibility with adjacent property and other property in the district.

   (3)   The Board of Adjustment shall request the Canton Planning Board to review and make recommendations concerning the special use permit relative to the following considerations:

   a.   Relation of the special use to applicable elements of the planning program.

   b.   Appearance of the special use relative to location, structure and design.

   (4)   Reasonable and appropriate conditions and safeguards may be imposed upon these permits. The Zoning Board of Adjustment must not impose conditions on special use permits that the local government does not otherwise have statutory authority to impose. Further, the Board shall obtain the landowner's and/or applicant's written consent to the conditions related to any special use permit granted under these regulations.

   (5)   The Zoning Board of Adjustment may provide that defined minor modifications to special use permits, that do not involve a change in uses permitted or the density of overall development permitted, may be reviewed and approved administratively (Section 9-4097(b)). Any other modification or revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit. Any modifications approved shall only be applicable to those properties whose applicants/landowners provide written consent for the modification.

   (c)   Variances. To authorize upon appeal in specific cases such variances from the terms of the chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the chapter will, in an individual case, result in practical difficulty or unnecessary hardship; so that the spirit of the chapter shall be observed, public safety and welfare secured, and substantial justice done.

   (1)   The existence of a nonconforming use of neighboring land, building, or structures in the same district or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variance. The fact that property may be utilized more profitably will not be considered adequate to justify the Board in granting a variance.

   (2)   The variance may be granted in such individual case of unnecessary hardship upon a finding by the Board of Adjustment that all of the following conditions exist:

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

   b.   Granting the variance requested will not confer upon the applicant any special privileges that are denied to other residents of the district 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 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 or the property owner.

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

   g.   The variance is not a request to permit a use of land, building, or structure which is not permitted by right or by special use permit in the district involved.

   (3)   No change in permitted uses may be authorized by variance.

   (4)   Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

(As Amended by Ord. of 6/24/21)

   For all appeals, variances, and special use permits, quasi-judicial (evidentiary) procedures of G.S. § 160D-406 must be followed:

   (a)   Notice of hearing.

   (1)   Written notice of the hearing shall be given by being placed in the mail, no later than ten (10) days before the hearing but no more than twenty-five (25) days prior to the hearing, to the following:

   a.   The appellant or applicant whose application, appeal, or request is the subject of the hearing.

   b.   The owner of the property, if the owner did not initiate the hearing;

   c.   The owners of all parcels of land abutting the parcel of land that is the subject of the hearing, as are listed for taxation of real property; and

   d.   Any other person who makes a written request for the notice by mailing to the persons a written notice or is otherwise entitled to receive notice by this chapter.

   (2)   No later than ten (10) days before the hearing but no more than twenty-five (25) days prior to the hearing, 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.

   (b)   Evidentiary hearing required.

   (1)   Before making a decision on an appeal or an application for a variance, the Zoning Board of Adjustment shall hold an evidentiary hearing on the appeal. The Board shall also conduct an evidentiary hearing on a special use permit, or petition from the Administrator to revoke a special use permit. This hearing is to gather competent, material, and substantial evidence to establish the facts of the case.

   (2)   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 shall become a part of the hearing record.

   (3)   The hearing shall be open to the public. The applicant, the Town, and any person who would have standing to appeal the decision under G.S. § 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board. All testimony must be given under oath.

   (4)   The official who made the decision, or the person currently occupying that position if the decision-maker is no longer employed by the Town, shall be present at the evidentiary hearing as a witness.

   (5)   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.

   (6)   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 G.S. § 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.

   (7)   The Board may continue the hearing until a subsequent meeting to take additional information. No further notice of a continued hearing need be published unless a period of six weeks or more elapses between hearing dates.

   (8)   Voting. The concurring vote of four-fifths of the Board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari.

   (9)   Decisions. The Board shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, the 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 Board shall have all the powers of the official who made the decision. 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 Board's determination of contested facts and their application to the applicable standards, and be approved by the Board and 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 clerk to the Board or such other office or official as the development regulation specifies. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person required to provide notice shall certify to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.

(Ord. of 6/24/21)

   Any person or persons, jointly or severally, aggrieved by any decision of the Board, any taxpayer, or any officer, department, board or bureau of the Town of Canton, may within 30 days after the filing of the decision in the office of the Board, but not thereafter, present to a court of competent jurisdiction a petition duly verified, setting forth that such decision is illegal, in whole or in part, specifying that ground of illegality, whereupon the decision of the Board shall be subject to review by certiorari as provided by law.

(As Amended by Ord. of 6/24/21)

   A fee of $15 shall be paid to the Town for an application for a variance, exception or appeal to cover the necessary administrative costs and advertising.

(As Amended by Ord. of 6/24/21)