A Board of Adjustment is hereby established as provided in Section 160D-302 of the General Statutes of North Carolina. The Planning Board shall function as the Board of Adjustment as provided in Section 160D-302(b) of the General Statutes of North Carolina. The Board of Adjustment shall hear and decide applications for special use permits, requests for variances, and appeals of decisions of administrative officials charged with enforcement of the code of ordinances. As used in this section, the term “decision” includes any final and binding order, requirement or determination. (Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06; Ord. of 3/3/14, No. 09-13; Ord. of 6-21-21, No. 41-21)

   The concurring vote of four-fifths of the members of the Board of Adjustment - six (6) of the seven (7) voting members - shall be necessary to approve any variance of the ordinance. The concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Zoning Enforcement Officer of the City of Claremont, or to decide in favor of the applicant any matter upon which it is required to pass under the ordinance. A simple majority vote shall be all that is required for issuance of a special use permit. In accordance with N.C.G.S. 160D-109(d),members of the Board of Adjustment 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 that matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection. For purposes of this section, a close familial relationship means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships.12 (G.S. 160D-109(d), (e), (f)). Alternate members may serve temporarily (including voting) in the absence or temporary disqualification of any regular member or to fill a vacancy pending appointment of a regular member. Alternate members shall be eligible for appointment by the City Council as a regular member of the Board of Adjustment.

(Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06; Ord. of 3/3/14, No. 09-13; Ord. of 6-21-21, No. 41-21; Ord. of 3-6-23, No. 30-23)

   The Board of Adjustment shall elect a chairman and a 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 or an employee of the city. The Board shall adopt rules of procedure in accordance with the provisions of this chapter and in Article 3, Chapter 160D of the General Statutes of North Carolina. Meetings of the Board shall be held once a month or at the call of the Chairman. The Chairman, or in his or her absence the Vice-Chairman, may administer oaths and compel the attendance of witnesses by subpoena. The Chairman shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas may be appealed to the full board of adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this section, the Board of Adjustment or the person seeking subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed pursuant to N.C.G.S. 160D-406(g). All meetings of the Board shall be open to the public. (Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06; Ord. of 3/3/14, No. 09-13; Ord. of 6-21-21, No. 41-21)

   All hearings under this article, whether an appeal or otherwise, shall be conducted as follows:

   1.   Hearings.

   a.   All hearings of the Board shall be open to the public.

   b.   No final action shall be taken on any matter unless a quorum is present. A quorum shall consist of a majority of the total members of the Board.

   c.   A notice of the hearing 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 ordinance. In the absence of evidence to the contrary, the city may rely on the county tax listing to determine the 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 the hearing. Within that same time period, the city 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 shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, an indication of such fact. All decisions shall be made within a reasonable time and shall be based upon competent, material, and substantial evidence in the record. Each decision shall be reduced to writing and reflect the Board's determination of contested facts and their application to the applicable standards. The decision is effective upon filing the written decision with the City Clerk. The final disposition of appeals shall be made by recorded resolution indicating the reason of the Board therefore, all of which shall be a public record. The decision of the Board shall be delivered by personal delivery, electronic mail or by first class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The Chairman of the Board of Adjustment shall certify that proper notice of the decision has been made at the time of filing of the written decision with the Clerk.

   2.   Appeals. The Board of Adjustment shall hear and decide appeals decisions of administrative officials charged with enforcement of the zoning ordinance and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to N.C.G.S. 160D-405, except as provided by 160D-1403.1, and all of the following:

   a.   Any person who has standing under N.C.G.S. 160D-1042(c) or the city may appeal a decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the City Clerk. The notice of appeal shall state the grounds for the appeal.

   b.   The official who made the decision 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 owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.

   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 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 10 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 official who made the decision shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from is taken. The official 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.   An appeal of a notice of violation or other enforcement order stays enforcement 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 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 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 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.   The official who made the decision 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 city 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. (Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06; Ord. of 3/3/14, No. 09-13; Ord. of 6-21-21, No. 41-21)

   An appeal stays all legal proceedings in furtherance of the action appealed from, unless the Zoning Enforcement Officer certifies to the Board of Adjustment after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life and property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, on notice to the Zoning Enforcement Officer and on due cause shown. (Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06)

   A fee, set by the City Council, shall be paid to the City Clerk of the City of Claremont, North Carolina for each application for a variance, special use permit, or appeal to cover the necessary administrative costs and advertising. (Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06; Ord. of 6-21-21, No. 41-21)

   The Board of Adjustment shall have the powers and duties enumerated below:

   2.   Special uses. To grant in particular cases and subject to the appropriate conditions and safeguards, permits for special uses as authorized by this chapter and set forth as special uses under the various use districts. A majority vote of the Board of Adjustment members is required to grant any special use. The Board shall not grant a special use permit unless and until:

   a.   A written application for a special use permit is submitted to the Zoning Enforcement Officer indicating the section of this chapter under which the special use permit is sought;

   b.   A public hearing is held. In accordance with Section 9-3-264, notice of such public hearing 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 or within one hundred (100) feet of the property for which the special use permit is sought.

   c.   The Board of Adjustment finds that in the particular case in question the use for which the special use permit is sought.

   1.   Does not materially endanger the public health or safety.

   2.   Meets all required conditions and specifications

   3.   Would not substantially injure the value of adjoining property or, that if it does, there is a public necessity for siting the use as proposed.

   4.   Will be in harmony with the area in which it is located and will be in general conformity with adopted plans (including but not limited to Thoroughfare Plans, Metropolitan Transportation Plans, Small Area Plans, Action Plans, Comprehensive or Land Development Plans, Recreation Plans, Downtown Development Plans and Economic Development Plans).

   d.   Compliance with other codes. Granting a special use permit does not exempt the applicant from complying with all of the requirements of building codes or other ordinances.

   e.   Revocation. If at any time after a special use permit has been issued, the Board of Adjustment finds 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 a use discontinued. If a special use permit is terminated for any reason, it may be reinstated only after a public hearing is held.

   f.   Expiration. In any case where a special use permit has not been exercised within the time limit set by the Board of Adjustment or within a period of one year if no specific time limit has been set the without further action the permit shall be null and void. Exercised, as set forth in this division, shall mean that binding contracts for construction of the main building shall have been let, or in the absence of contracts, that the main building is under construction to a substantial degree, or that prerequisite conditions involving substantial investment are contracted for, in substantial development, or completed (sewerage, drainage, etc). When construction is not a part of the use, exercised shall mean that the use is in operation in compliance with the conditions set forth in the permit.

   g.   Careful record. A careful record of such application and plat, together with a record of the action taken thereon, shall be kept in the office of the Zoning Enforcement Officer.

   h.   Minor modifications to a special use permit may be administratively approved by the zoning administrator if issues arise after the special use permit has been approved by the Board of Adjustment that keep the applicant from carrying out the strict interpretation of the ruling. The Zoning Administrator is authorized to review and approve administratively a minor modification to an approved special use permit. Minor modifications include reconfiguring parking design, changing landscaping or buffering arrangements, or slightly altering road and lot configurations for a development that has already gone through the full approval process, or similar minor modifications subject to the following limitations.

   (1)   General Limitations. The minor modification:

   A.   Does not involve a change in uses permitted or the density of overall development permitted;

   B.   Does not increase the impacts generated by the development on traffic or similar impacts beyond what was projected for the original development approval; and

   C.   Meets all other ordinance requirements.

   D.   An adjustment to landscape standards up to 10% percent of required landscaping.

   a.   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.

   b.   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 of the general public may not be the basis for granting a variance.

   c.   The hardship did not result from the actions taken by the applicant or the property owner. The act of purchasing the property with knowledge that the circumstances exist that may justify the granting of a variance shall not be regarded as self- created hardship.

   d.   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.

   e.   Appropriate conditions may be imposed on any variance provided that the conditions are reasonable and related to the variance.

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

   g.   Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this division.

   Any person or persons, jointly or severally, that have standing under G.S. 160D-1402, may appeal a decision of the Board. An appeal is taken by presenting to the Superior Court of Catawba County a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of illegality, whereupon such decision of said Board shall be subject to review by certiorari as provided by law G.S. 160D-1402. The petition to appeal shall be filed within thirty (30) days after the filing of the decision in the office of the City Clerk, but not thereafter, or after a written copy thereof is given in accordance with G.S. 160D-406(j). When first-class mail is used to deliver notice, three days shall be added to the time to file the petition. G.S. 160D-1405(d).

   When hearing an appeal, the hearing shall be based on the record stated in G.S. 160D-406(h)(i)(j) and (k). Quasi-judicial decisions shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402. (Ord. of 12-7-04, No. 37-02; Ord. of 8-7-06, No. 18-06; Ord. of 6-21-21, No. 41-21)