It is the intention of this subchapter that all questions arising in connection with the enforcement of this chapter shall be presented first to the town planner for consideration and that such questions shall be presented to the Board of Adjustment only on appeal from a decision of an administrative official charged with the enforcement of this chapter, and that from the decision of the Board of Adjustment, recourse shall be had to the courts, as provided by law. It is further the intention of this division that appeals from a decision of the Zoning Administrator or other administrative official, related to this chapter but not pertaining to the state building code or state building laws, shall be taken to the Board of Adjustment, and that from the decision of the Board of Adjustment, recourse shall be had to the courts, as provided by law; except that it shall be the duty of the Board of Commissioners to consider any amendments to this chapter, applications for special use permits or site plans as provided by this chapter and any other duty not specifically delegated to the Board of Adjustment herein.

(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)

   (A)   Interpretations. The Board shall interpret zoning maps and pass upon disputed questions of lot lines or district boundary lines and similar questions that may arise in the administration of this chapter. The Board shall hear and decide all matters referred to it or upon which it is required to pass under this chapter.

   (C)   Variances. To authorize upon appeal in specific cases, variances from the terms of the Zoning Code according to the standards and procedures herein so that the spirit of the Code is observed, public safety and welfare secured, and substantial justice done.

      (1)   The Board of Adjustment may impose appropriate conditions on any variance, provided the conditions are reasonably related to the variance.

         (a)   A violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be a violation of this chapter.

      (2)   The variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.

   (D)   Chapter 151, Flood Damage Prevention Ordinance. Pursuant to the terms, conditions and procedures contained in Chapter 151, Flood Damage Prevention Ordinance, the Board of Adjustment shall act as the appeal board and shall hear and decide requests for variances of the provisions of that chapter; and, shall hear appeals and modify or affirm the corrective order issued by the Floodplain Administrator.

   (E)   The Board of Adjustment shall comply with all the procedures and processes applicable to the Board of Adjustment hearing appeals in accordance with G.S. §§ 160D-405 and 160D-406.

(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)

      (1)   An appeal may be initiated by any aggrieved party or by any officer or the Board of Commissioners of the Town of Kill Devil Hills.

      (2)   The Board of Adjustment shall hear and decide appeals decisions of administrative officials charged with enforcement of the zoning, subdivisions or flood damage prevention ordinance, pursuant to all of the following:

         (a)   Any person who has standing under G.S.§ 160D-1402(c) or the town may appeal a decision to the Board of Adjustment. A written notice of appeal stating the grounds for the appeal must be filed with the Town Clerk.

         (b)   The official who made the decision must 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 must 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)   The official who made the decision must transmit to the Board all the documents and exhibits constituting the record upon which the action appealed was taken. The official must 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.

         (e)   An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed and accrual of any fines, 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 this chapter. 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 must meet to hear the appeal within 15 days after such request is filed. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with this chapter 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.

         (f)   The Board of Adjustment must hear and decide the appeal within a reasonable time. The Board shall follow quasi-judicial procedures in determining appeals of administrative decisions (G.S. § 160D-406).

         (g)   Notice of the evidentiary hearing shall follow procedures outlined in § 153.363.

         (h)   The official who made the decision must be present at the hearing as a witness.

         (i)   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 official who made the decision.

         (j)   When hearing an appeal pursuant to G.S.§ 160D-1402 or any other appeal in the nature of certiorari, the hearing shall be based on the record and the scope of review shall be as provided in G.S.§ 160D-1402.

      (3)   Staff shall transmit to the Board all applications, reports and written materials relevant to the matter being considered. Administrative materials shall become part of the hearing record. The applicant, local government, and any person who would have standing to appeal the decision shall have the right to participate as a part of the evidentiary hearing.

      (4)   Upon voting, the decision shall be made by the majority of the board for appeals.

         (a)   The Board of Adjustment shall reverse or modify the order, decision, determination, or interpretation under appeal only upon finding an error in the application of these regulations on the part of the officer rendering the order, decision, determination, or interpretation.

         (b)   In modifying the order, decision, determination, or interpretation, the Board of Adjustment shall have all the powers of the officer from whom the appeal is taken.

(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)

   (A)   Procedures.

      (1)   A petition for variance may be initiated only by the owner of the affected property, an agent authorized in writing to act on the owner's behalf, or a person having a written contractual interest in the affected property.

      (2)   When unnecessary hardships would result from carrying out the strict letter of this chapter, the Board of Adjustment shall vary any of the provisions upon a showing of all of the following:

         (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 or the general public, may not be the basis for granting a variance.

         (c)   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 granting of a variance shall not be regarded as a 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.

            1.   The Board of Adjustment may impose appropriate conditions on any variance, provided the conditions are reasonably related to the variance, which include, as appropriate, requirements that street and utility rights-of-way be dedicated to the public and that provision be made for recreational space and facilities.

            2.   A violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be a violation of this chapter.

            3.   The variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.

      (3)   Restrictions.

         (a)   Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved, or any use expressly or by implication prohibited by the terms of this chapter in the district.

         (b)   The existence of a non-conforming use of neighboring land, buildings, or structures in the same district, or of permitted or non-conforming uses in other districts, shall not constitute sufficient reason for granting the requested variance.

         (c)   The fact that property may be utilized more profitably will not be considered adequate to justify the Board of Adjustment in granting a variance.

      (4)   Notice and public hearing shall follow procedures outlined in § 153.363.

(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)

   (A)   A concurring vote of four-fifths of the Board members shall be required to grant a variance. The Board may grant the variance as requested, deny the variance, or grant the variance with conditions. 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. The Board of Adjustment shall grant or deny the variance or shall reverse, affirm, or modify the order, decision, determination, or interpretation under appeal by recording in the minutes of the meeting the reasons that the Board of Adjustment used and the findings of fact and conclusions of law made by the Board of Adjustment to reach its decision. For purposes of this subsection, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered "members of the Board" for calculation of the requisite supermajority majority if there are no qualified alternates available to take the place of such members.

   (B)   A member of the Board 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 conflicts 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 member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection, as outlined in § 153.364 (Conflict of Interest).

(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)

   (A)   After the Board of Adjustment approves a variance, or reverses or modifies an order, decision, determination, or interpretation of an administrative officer, the appellant or petitioner shall be responsible for a building permit and/or certificate of occupancy, as applicable, in order to proceed with the development of the subject property. All orders, decisions, determinations, and interpretations made by administrative officers under those procedures shall be consistent with the variance, reversal, or modification granted to the appellant or petitioner by the Board of Adjustment.

   (B)   Rehearing. The Board of Adjustment shall refuse to hear an appeal or variance petition which has been previously denied unless it finds that there have been substantial changes in the conditions or circumstances relating to the matter.

(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)

   A fee established by the Board of Commissioners shall be paid by the applicant, property owner, or appellant to the town at the time of filing of any proceeding for hearing before the Board of Adjustment.

(Ord. 13-20, passed 11-13-13; Am. Ord. 18-4, passed 6-14-21)