(a)

An appeal of the decision of the administrator may be taken to the board of adjustment by any person aggrieved. An appeal is taken by filing with the county clerk a written notice of appeal specifying the grounds therefore. The date and time of filing shall be entered on the notice.

(b)

An appeal must be taken within thirty (30) days after the date of the decision or order appealed from.

(c)

Whenever an appeal is filed, the administrator shall forthwith transmit to the board of adjustment a copy of all the papers constituting the record relating to the action appealed.

(d)

An appeal stays all actions by the administrator seeking enforcement of or compliance with the order or decision appealed from, unless the administrator certifies to the board of adjustment that (because of facts stated in the certificate) a stay would, in his opinion, cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the board of adjustment or a court, issued on application of the party seeking the stay, for due cause shown, after notice to the administrator. 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 fifteen (15) days after such a request is filed.

(e)

The official who made the decision shall be present at the hearing as a witness.

(f)

The board of adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement or decision or determination that in its opinion ought to be made in the case before it. To this end, the board of adjustment shall have all the powers of the officer from whom the appeal is taken.

(g)

Appeals from board of adjustment decisions are made to Superior Court. The procedures and timeline for filing such appeals are specified in NCGS 160D-1405(d).

(Amd. of 5-20-97; Amd. of 4-1-08, § 18; Amd. of 3-18-14(2); Ord. of 6-1-21(1))

(a)

An application for a variance shall be submitted to the board of adjustment by filing a copy of the application with the administrator in the Planning Department. Applications shall be handled in the same manner as applications for special use permits in conformity with the provisions of section 12-33.

(b)

A variance may be granted by the board of adjustment, with a vote of four-fifths (⅘) of the membership, only if it reaches the following three conclusions:

(1)

There are unnecessary hardships in the way of carrying out the strict letter of this chapter, as demonstrated by findings supporting all of the following:

a.

If the applicant complies with the literal provisions of this chapter, he can secure no reasonable return from, or make no reasonable use of, his property.

b.

The hardship of which the applicant complains results from unique circumstances related to the applicant's land.

c.

The hardship is not the result of the applicant's own actions. 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.

(2)

The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit.

(3)

The granting of the variance secures the public safety and welfare and does substantial justice.

(c)

In the case of a variance from standards governing subdivisions, it must involve matters of the timing of development, dimensions, geography, topography, stream flow, geology, soil type, and other natural conditions, which create a condition unique to the subdivision.

(d)

In the case of a zoning variance, it will neither result in the extension of a non-conforming situation in violation of section 12-8, nor authorize the initiation of a non-conforming use of land.

(e)

In granting a variance, the board of adjustment may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be as compatible as practicable with the surrounding properties.

(f)

Any variance may be issued for an indefinite duration or for a specified duration only.

(g)

The nature of a variance and any conditions attached to it shall be entered on the face of the zoning permit, or the permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of this chapter.

(Amd. of 5-20-97; Amd. of 2-5-08; Amd. of 4-1-08, § 19; Amd. of 3-18-14(2))

(a)

The board of adjustment is authorized to interpret the zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the administrator they shall be handled as provided in section 12-61.

(b)

A request for a map interpretation shall be submitted to the board of adjustment by filing a copy of the request with the administrator. The request shall contain sufficient information to enable the board to make the necessary interpretation.

(c)

Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the following rules shall apply:

(1)

Boundaries indicated as approximately following the centerlines of alleys, streets, highways, streams, or railroads shall be construed to follow such centerlines.

(2)

Boundaries indicated as approximately following lot lines; city limits or extraterritorial boundary lines shall be construed as following such lines, limits, or boundaries.

(3)

Boundaries indicated as following shorelines shall be construed to follow such shorelines, and in the event of change in the shoreline shall be construed as following such shorelines.

(4)

Where any street or alley is hereafter officially vacated or abandoned, the regulations applicable to each parcel of abutting property shall apply to that portion of such street or alley added thereto by virtue of such vacation or abandonment.

(d)

Interpretations of the floodplain management provisions of this chapter made by the administrator designated in section 12-255 shall be:

(1)

Considered as minimum requirements; and

(2)

Liberally construed in favor of the governing body; and

(3)

Deemed neither to limit nor repeal any other powers granted under state statutes.

(Amd. of 2-5-08)

The board of adjustment shall hear and decide all appeals, variance requests, and requests for interpretation as expeditiously as possible, consistent with the need to follow regularly established agenda procedures, provide notice in accordance with article VI, and obtain the necessary information to make sound decisions.

(Amd. of 4-1-08, § 20)

(a)

When an appeal is taken to the board of adjustment in accordance with section 12-61, the administrator shall have the initial burden of presenting to the board sufficient evidence and argument to justify the order or decision appealed. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of proof.

(b)

The burden of presenting evidence sufficient to allow the board of adjustment to reach the conclusions set forth in section 12-62(b), as well as the burden of proof on those issues, remains with the applicant seeking the variance.

(Amd. of 4-1-08, § 21)

(a)

The board of adjustment, by a vote of three-fifths (⅗) of its members, may reverse any order, requirement, decision, or determination of an administrative officer charged with enforcing this chapter, or may decide in favor of the applicant a matter upon which the board is required to pass under this chapter. For purposes of this chapter, vacant positions on the board of adjustment and members of the board of adjustment who are disqualified from voting shall not be considered "members of the board" for calculation of the requisite majority three-fifths (⅗) if there are no qualified alternates available to take the place of such members.

(b)

The concurring vote of four-fifth (⅘) of the members of the board of adjustment shall be necessary to grant a variance.

(c)

When acting on appeals, variance applications or interpretation requests, the board of adjustment shall include a statement of the specific reasons or findings of fact that support the conclusions drawn and the motion(s) made.

(d)

Upon denial of an application, a similar application shall not be filed for a period of one (1) year after the date of denial, unless there has been a substantial change in facts, evidence, or conditions in the case as presented in writing or graphically.

(e)

No board of adjustment member shall participate in or vote on any quasi-judicial matter in which the member has a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a personal interest or a close familial, business, or other associational relationship with an affected person, a financial interest in the outcome of the matter or some other conflict of interest that would violate affected persons' constitutional rights to an impartial decision maker. If an objection is raised to a member's participation and that member does not recues himself, the remaining members shall, by majority vote, rule on the objection.

(Amd. of 5-21-96; Amd. of 4-1-08, § 22; Amd. of 3-18-14(2))

Applications for minor watershed variances shall be handled in the following manner:

(1)

See section 12-62 variances.

(Ord. of 10-3-00)

Applications for major watershed variances shall be handled in the following manner:

(1)

See section 12.62 variances.

(2)

The planning department, having determined that an application is complete, shall place the item on the agenda of the next board of adjustment meeting. The board of adjustment shall hold a public hearing on the application and, within sixty (60) days from the close of the public hearing make a recommendation on said matter. Said recommendation shall be in one of the following forms:

a.

Recommend approval of the major variance request; or

b.

Recommend approval of the major variance request with fair and reasonable conditions attached; or

c.

Recommend denial of the major variance request.

(3)

If the board of adjustment recommends that the major variance be denied, the variance shall be considered as being denied and no further action on the major variance request by the county nor by the environmental management commission will be taken. Any decision of the board of adjustment shall be reduced to writing and served upon the applicant by first class mail. An appeal to the board of adjustment's decision may be made as provided in section 12-61(f). The concurrent vote of four-fifths (⅘) of the voting members of the board of adjustment shall be necessary to make a recommendation for approval of a major variance.

The board of adjustment shall conduct the public hearing in a quasi-judicial manner. All persons giving evidence shall be sworn in by the chairman. The recommendation made by the board of adjustment shall be based on the testimony given at the public hearing. The board may recommend that a variance be granted only after each of the following findings are found in the affirmative:

a.

There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter.

b.

That the variance is in harmony with the general purpose and intent of this chapter and preserves its spirit; and

c.

That in the granting of the variance, the public safety and welfare have been assured and substantial justice has been done; and

d.

That the reasons set forth in the application justify the granting of a variance, and that the variance is a minimum one that will make possible the reasonable use of land or structures.

(4)

If the board of adjustment makes a recommendation to approve a major variance, said recommendation shall be forthwith forwarded, along with all supporting information, to the environmental management commission. Information which shall be forwarded shall include the following:

a.

The variance application;

b.

Evidence that proper notification of the board of adjustment's public hearing has been made;

c.

A summary of evidence presented including comments from other local governments;

d.

Proposed findings and exceptions;

e.

The board of adjustment's recommendation, including any conditions attached as a requisite for approval.

(5)

If the environmental management commission approves the major variance application, any conditions, stipulations or modifications it requires shall become part of any permit subsequently issued by the county pertinent to that development. The planning department shall notify the applicant by first class mail of receipt of the environmental management commission's decision. Subsequent to the approval of a variance application by the environmental management commission, the requested permit may be issued.

(6)

If the environmental management commission overturns the board of adjustment's recommendation to approve a major variance, the planning department shall not accept an application for a similar variance request affecting the same property(ies) for a period of one (1) year following the date of denial. Notification of the decision of the environmental management commission shall be sent by first class mail by the planning department to the applicant.

(7)

Appeals from environmental management commission decisions on major variance requests are made to Superior Court.

(Ord. of 10-3-00; Amd. of 4-1-08, § 23)