1300 Administration and Enforcement - Pursuant to G.S. 160D as amended, and for purposes of administering and enforcing this ordinance, the Planning Department is hereby assigned the duty and authority to administer and enforce the provisions of this ordinance. Administrative staff may inspect work undertaken pursuant to a development approval to assure that the work is being done in accordance with this ordinance and of the terms of the approval, and may perform inspections for general code compliance and enforcement unrelated to a development approval. In exercising this power, staff are authorized to enter any premises within the city's planning jurisdiction at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials; provided, however, that the appropriate consent has been given for inspection of areas not open to the public or that an appropriate inspection warrant has been secured.

1300.1

Determinations and Interpretation; Notice

Any staff member of the Planning Department, as authorized by the Director, may make determinations and interpretations on the provisions in this ordinance while engaged in the administration and enforcement of the ordinance. Whenever a property owner or authorized agent disagrees with the interpretation or application of this ordinance made by planning department staff, or otherwise requests that a written determination be made, the Planning Director shall make the final determination and provide written notice of the determination to the property owner and to the party who sought the determination, if different from the owner, pursuant to G.S. 160D-403(b). It shall be the responsibility of the land owner, applicant, or person who sought the determination to post notice of the zoning decision pursuant to G.S. 160D-403(b), and the posting of such notice is not required.

1301 Zoning Permit Required - No person shall commence or proceed with any development activity regulated by this ordinance without first securing a zoning permit from the Lenoir Planning Department and, if applicable, a building permit from Caldwell County Building Inspections. Applications for zoning permits may be made by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for a permit for such development as is authorized by the easement. Development approvals shall be in writing and may contain a provision requiring that the development apply with all applicable State and local laws. The approval may be issued in print or electronic form. Any development approval issued exclusively in electronic form shall be protected from further editing once issued. Zoning Permits shall expire 12 months from the date of approval if development activity has not substantially commenced (see Sec. 1505), except where a longer timeframe is prescribed by this ordinance.

1302 Application for Zoning Permit - All applications shall be accompanied by a site plan.

1302.1

Single and Two-family Dwellings - The required site plan shall contain, but not be limited to the following:

Scale

Owner's Name

Property line

Location of existing structures and driveways

Location of proposed structures and driveways

1302.2

Multi-family, institutional, commercial, and industrial construction - The required site plans shall contain, but not be limited to the following:

1302.21 General Information

(A)

Map scale

(B)

Owner's name

(C)

North point

(D)

Property lines

(E)

Adjoining property owners

(F)

Vicinity map

1302.22 Site Development Information

(a)

Parking layout including spaces

(b)

Ingress & egress (driveways)

(c)

Loading and unloading areas*

(d)

Perimeter screening*

(e)

Pedestrian walks*

(f)

Location of refuse containers

(g)

Accessory planting

(h)

Sign types and locations

(i)

Topographic information

(j)

Fill (Compaction Test)*

(k)

Soil erosion measures*

(l)

General lot design

(m)

Floodplain information*

1302.23 Structural Information

(a)

On site location

(b)

Exterior dimensions

(c)

Elevation of structure at floor level

(d)

Floodproofing measures*

1302.24 Utilities Information

(a)

Water connections

(b)

Sewer connections

(c)

Lot drainage

(d)

Piping (storm drainage, etc.)

(e)

Location and dimensions of all easements and/or rights-of-way*

*If appropriate to the development planned.

The Planning Department may require any additional information as may be necessary to determine conformance with this Ordinance.

(Ord. of 1-19-2021, § 8)

1303 Permits Issued for Approved Lots Only - Permits shall not be issued for construction on new lots which are created by the subdivision of land unless the subdivision has been approved by the City Council.

1304 Certificate of Occupancy for New and Altered Structures

It shall be unlawful to use or permit the use except for agriculture purposes of any land, building or structure or part thereof, hereafter created, erected, changed, converted, altered or enlarged, wholly or partly, in its use or structure, until a Certificate of Occupancy shall have been issued by the Building Inspector stating that the building or structure and the proposed use complies with the provisions of this ordinance. A Certificate of Occupancy shall be applied for co-incident with the application for a building permit and shall be issued within five (5) days after the erection or alteration of such building or structure or part thereof has been completed in conformity with the provisions of this ordinance and the North Carolina Building Code.

A temporary Certificate of Occupancy may be issued by the Building Inspector for a period not to exceed six months during alterations or partial occupancy of a building pending completion, provided that such temporary permit may require such conditions and safeguards as will protect the safety of the occupants and the general public.

The Building Inspector shall maintain a record of all Certificates of Occupancy and a copy shall be furnished upon request to any person. Failure to obtain a Certificate of Occupancy shall be violation of this Ordinance, and punishable under Section 1307 of this ordinance.

1305 Complaints Regarding Violations - Whenever a violation of this ordinance occurs, or is alleged to have occurred, any person may file a written or verbal complaint. Such complaint stating fully the causes and basis thereof shall be filed with the Planning Department. A representative of the Planning Department shall record properly such complaint, immediately investigate, and take action thereon as provided by this ordinance.

(Ord. of 3-18-2014, § 4)

1306 Remedies - In any case in which a building or structure is proposed to be or is erected, constructed, reconstructed, altered, maintained or used; or any land is proposed to be or is used in violation of this ordinance; the Planning Department, City Council, City Attorney, or any other person aggrieved may, in addition to other remedies provided by law, institute injunction mandamus, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful erection, construction, reconstruction, alteration, maintenance or use.

1307 Notification, Abatement, and Penalties for Violation - Upon the determination that any provision of the city's adopted development regulations is being violated, or work or activity has been undertaken in violation of the terms of a development approval, the Zoning Inspector shall issue a written notice of violation. The notice of violation shall be delivered to the holder of the development approval and to the landowner of the property involved, if the landowner is not the holder of the development approval, by personal delivery, electronic delivery, or first-class mail and may be provided by similar means to the occupant of the property or the person undertaking the work or activity. The notice of violation may be posted on the property. The person providing the notice of violation shall certify that the notice was provided, and the certificate shall be deemed conclusive in the absence of fraud. Such notice shall provide time period for abatement, and shall state the penalties for non-compliance provided in section 1-15 of the City of Lenoir Code. Except as provided by G.S. 160D-1123 or G.S. 160D-1206 or otherwise provided by law, a notice of violation may be appealed to the board of adjustment pursuant to G.S. 160D-405.

State Law reference— Similar provisions G.S. 160D-404(a).

1307.1

Stop Work Orders - Whenever any work or activity subject to regulation pursuant to this ordinance or other applicable local development regulation or any State law delegated to the local government for enforcement purposes in lieu of the State is undertaken in substantial violation of any State or local law, or in a manner that endangers life or property, the Zoning Inspector may order the specific part of the work or activity that is in violation or presents such a hazard to be immediately stopped. The order shall be in writing, directed to the person doing the work or activity, and shall state the specific work or activity to be stopped, the reasons therefor, and the conditions under which the work or activity may be resumed. A copy of the order shall be delivered to the holder of the development approval and to the owner of the property involved (if that person is not the holder of the development approval) by personal delivery, electronic delivery, or first-class mail. The person or persons delivering the stop work order shall certify to the local government that the order was delivered and that certificate shall be deemed conclusive in the absence of fraud. Except as provided by G.S. 160D-1112 and G.S. 160D-1208, a stop work order may be appealed pursuant to G.S. 160D-405. No further work or activity shall take place in violation of a stop work order pending a ruling on the appeal. Violation of a stop work order shall constitute a Class 1 misdemeanor.

Editor's note— Similar provisions G.S. 160D-404(b).

1307.2

Revocation of Permits - The Planning Director may revoke a zoning permit by notifying the permit holder in writing stating the reason for the revocation. Permits shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of any applicable local development regulation or any State law delegated to the local government for enforcement purposes in lieu of the State; or for false statements or misrepresentations made in securing the approval. Any zoning permit mistakenly issued in violation of applicable State or local law may also be revoked.

(Amd. of 5-3-2011; Ord. of 3-18-2014, § 4; Ord. of 1-19-2021, § 8)

1308 Appeals - Appeals of administrative decisions made by staff under this ordinance, including, but not limited to, determinations made pursuant to Sec. 1300.1, permits issued or denied pursuant to Sec. 1301, notices of violations and orders of abatement issued pursuant to 1307, stop work orders issued pursuant to 1307.1, revocation of permits pursuant to 1307.2, and determinations related to vesting, application completeness, and substantially commencing development, pursuant to Article XV, shall be heard by the Board of Adjustment.

(1)

Standing. Any person who has standing under G.S. 160D-1402(c) or the city council may appeal an administrative decision to the board.

(2)

Notice of Appeal. An appeal is taken by filing a notice of appeal with the Planning Director. The notice of appeal must state the grounds for the appeal.

(3)

Time to Appeal. The owner or applicant has 30 days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. 160D-403(b) by first class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.

(4)

Record of Decision. The official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the decision 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.

(5)

Stays. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the board of adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, 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 development regulation. In that case, enforcement proceedings are not 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 any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the 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 being appealed.

(6)

Appearance of New Officials. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the local government, shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in a notice of appeal. If any party or the local government would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board shall continue the hearing.

(7)

Powers and Duties of the Board. 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. The board shall follow the quasi-judicial process outlined in Secs. 1309-1318 of this Article when hearing appeals under this Section.

State Law reference— G.S. 160D-405 and 160D-406(e)

(Ord. of 3-18-2014, § 4; Ord. of 1-19-2021, § 8)

1309 Process Required. All boards making quasi-judicial decisions shall follow quasi-judicial procedures, which include an evidentiary hearing. The Board of Adjustment shall follow quasi-judicial procedures in determining appeals of administrative decisions and variances. The Historic Preservation Commission shall follow quasi-judicial procedures in issuing Certificates of Appropriateness. The City Council shall follow quasi-judicial procedures in issuing Special Use Permits.

(Ord. of 1-19-2021, § 8)

1310 Notice of Hearing.

(1)

Mailed Notice. Notice of evidentiary hearings conducted pursuant to this Part 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 City's code of ordinances. For the purpose of this section, properties are "abutting" even if separated by a street, railroad, or other right-of-way or easement. In cases where the abutting properties are substandard due to not meeting the minimum lot size or width requirements, the notice shall also include the next abutting property(s). In cases where the applicant or owner of the subject property also owns or has an interest in the abutting properties, the City may send notice to the next abutting property, such that the intent of this Section to provide written notice to abutting land owners is met. In the absence of evidence to the contrary, the City shall rely on the owner of record and address listed on the Caldwell County tax listing. The notice must be deposited in the mail at least 10 days, but not more than 25 days, prior to the date of the hearing.

(2)

Posted Notice. At least 10 days, but not more than 25 days, prior to the date of the hearing, 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.

(3)

Continued Hearings. The board may continue an evidentiary hearing that has been convened without further advertisement. 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.

(Ord. of 1-19-2021, § 8)

1311 Administrative Materials. 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 may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the board at the hearing.

(Ord. of 1-19-2021, § 8)

1312 Presentation of Evidence. The applicant, the city, 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.

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.

(Ord. of 1-19-2021, § 8)

1313 Oaths. The chair of the board or any member acting as chair and the clerk to the board 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 determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.

(Ord. of 1-19-2021, § 8)

1314 Subpoenas. The board making a quasi-judicial decision under this Chapter through the chair or, in the chair's absence, anyone acting as chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the local government, and any person with standing under G.S. 160D-1402(c) may make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled. 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 immediately appealed to the full board. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.

(Ord. of 1-19-2021, § 8)

1315 Appeals in the Nature of Certiorari. When hearing an appeal pursuant to G.S. 160D-947(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. 160D-1402(j).

(Ord. of 1-19-2021, § 8)

1316 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. For the purposes of this subsection, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter under G.S. 160D-109(d) shall not be considered members of the board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

(Ord. of 1-19-2021, § 8)

1317 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 upon recordation of the order or permit with the Register of Deeds, when required by this Ordinance. 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 1-19-2021, § 8)

1318 Judicial Review. Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402. Appeals shall be filed within the times specified in G.S. 160D-1405(d).

(Ord. of 1-19-2021, § 8)

Secs. 1319—1330 Reserved.

Editor's note— An ordinance adopted January 19, 2021 deleted sections 1309—1315 and enacted new sections 1309—1318 and 1331—1333 as set out herein. Former sections 1309—1315 pertained to establishment, proceedings, public meetings, powers and duties, decisions and appeals of the Board of Adjustment and variances and appeals and derived from an ordinance adopted December 16, 2003; an ordinance adopted January 16, 2006; and § 4 of an ordinance adopted June 16, 2015.

1331 Requests for Variances. A person wishing to request a variance shall file an application with the Planning Department on the Friday falling at least twenty (20) days prior to the meeting at which it is to be reviewed and shall pay a fee, as set forth by City Council to defray administration and noticing expenses. Applications for variances may be made by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for a variance for such development as is authorized by the easement.

(Ord. of 1-19-2021, § 8)

1332 Standards for Variance Approval; Findings of Fact. When unnecessary hardships would result from carrying out the strict letter of a zoning or subdivision regulation, the board of adjustment shall, by a ⅘ majority vote, vary any of the provisions of the regulation upon the adoption of findings of fact showing of all of the following:

(1)

Unnecessary hardship would result from the strict application of the regulation. It is not 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 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. A variance may be granted when necessary and appropriate to make a reasonable accommodate under the Federal Fair Housing Act for a person with a person with a disability.

(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 is not a self-created hardship.

(4)

The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.

No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

(Ord. of 1-19-2021, § 8)

1333 Procedure for Quasi-Judicial Hearing. The Board of Adjustment shall hold a quasi-judicial hearing in accordance with the procedures in Secs. 1309-1318 prior to taking action on any variance request.

(Ord. of 1-19-2021, § 8)