(A)   Generally. The Board of Adjustment shall have all the powers and duties authorized by G.S. § 160D-302, and in the manner provided for in this chapter. Generally, the powers and duties shall include, but not be restricted to the following:

      (1)   Hearing and deciding all appeals from decisions made by the Administrator or the Historic District Commission;

      (2)   Hearing and deciding all appeals for an interpretation of these zoning regulations;

      (3)   Hearing and granting variances from the provisions of this chapter;

      (4)   Hearing applications to replace, change the use of or expand nonconformities; and

      (5)   Hearing and granting permits for certain temporary structures and uses as set forth in § 153.053 of this chapter.

      (1)   A Board of Adjustment is hereby established. The Board shall consist of four regular members appointed by the City Council who reside inside the corporate limits of the city and one regular member appointed to the Board by the County Board of Commissioners as the representative of the extraterritorial jurisdiction, the extraterritorial representative being a resident of the area. Any vacancy in the membership shall be filled for the unexpired term in the same manner as the initial appointment. Each member shall be paid at the rate as set forth in the fee schedule per meeting attended and may be reimbursed for any expenses incurred while representing the Board.

      (2)   Two alternate Board of Adjustment members shall be appointed by the City Council. The members shall serve in the absence of regular Board of Adjustment members. The alternate members shall be appointed in the same manner as regular members. The alternate members, while attending any regular meeting of the Board and serving in the absence of a regular member, shall exercise all of the powers and duties of the regular member so absent.

      (3)   The alternate members shall reside inside the city’s corporate limits and shall be appointed by the City Council. Alternate members shall be compensated in the same manner as regular members.

(Prior UDO, § 15.1) (Ord. ZTA-3-2013, passed 10-3-2013; Ord. passed - - )

   (A)   The Board of Adjustment shall hear and decide appeals from and review any order, requirement, decision or determination made by the Administrator or the Historic District Commission and apply the interpretation to particular fact situations. In addition, the Administrator may ask the Board of Adjustment to make an interpretation of this chapter.

   (B)   The Board of Adjustment may, after having held a public hearing on the matter, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed or make an interpretation or determination with reference to the appeal.

   (C)   Any person who has standing under G.S.§ 160D-1402(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 Administrator in accordance with § 153.280. The notice of appeal shall state the grounds for the appeal.

   (D)   The Administrator 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. In the absence of evidence to the contrary, notice 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.

   (E)   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.

   (F)   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” or similar language for other determinations 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 ten 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 Administrator. Posting of signs is not required.

   (G)   The Administrator shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the action appealed from is taken. The Administrator 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.

   (H)   An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the Administrator 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 Administrator 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 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 affected by the issue being appealed.

   (I)   The Administrator 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.

   (J)   When hearing an appeal pursuant to G.S.§ 160D-947(a) 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(j).

   (K)   The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution.

(Prior UDO, § 15.2) (Ord. ZTA-3-2013, passed 10-3-2013; Ord. passed - - )

   (B)   The request for a variance for a use expressly, or by inference, prohibited in the district involved, shall not be granted.

   (C)   The Board of Adjustment may grant a variance only after having first held a public hearing on the matter. When unnecessary hardships would result from carrying out the strict letter of these zoning regulations, the Board of Adjustment shall vary any of the provisions of the zoning regulations upon a showing of all of the following:

      (1)   Unnecessary hardship would result from the strict application of the zoning regulations. It shall not be 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 accommodation under the Federal Fair Housing Act for 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 shall not be regarded as a self-created hardship.

      (4)   The requested variance is consistent with the spirit, purpose, and intent of the zoning ordinance, such that public safety is secured and substantial justice is achieved.

   (D)   The Board of Adjustment, in granting a variance, may prescribe appropriate conditions and safeguards in conformity with this chapter provided the conditions are reasonably related to the variance. Violation of the conditions and safeguards, when made a part of the terms under which a variance is granted, shall be deemed a violation of this chapter and shall be punishable as prescribed in § 153.999 of this chapter.

   (E)   Unless otherwise authorized by the Board of Adjustment, any order of the Board of Adjustment in granting a variance shall expire 1 year from the date of the Board of Adjustment’s decision if required permits have not been obtained within the 1-year time frame.

   (F)   If the variance has expired, the Zoning Administrator shall have the authority to either:

      (1)   Issue the permit if the Zoning Administrator determines that, based upon the Board’s decision, the circumstances for the granting of the variance have not changed and no changes to the ordinance would affect that decision; or

      (2)   Advise the applicant to reapply for a variance to be heard by the Board of Adjustment.

(Prior UDO, § 15.3) (Ord. ZTA-3-2013, passed 10-3-2013; Ord. passed - - ; Ord. ZTA-1-2025, passed 4-3-2025) Penalty, see § 153.999

   See §§ 153.122(E) and 153.122(F) of this chapter.

(Prior UDO, § 15.4) (Ord. ZTA-3-2013, passed 10-3-2013)

   (A)   The Board of Adjustment shall hear and decide appeals from any land owner:

      (1)   To make a change in use of a nonconforming use;

      (2)   To replace a nonconforming use or structure which has been destroyed;

      (3)   To make a change in location of a nonconforming use of land; or

      (4)   For a special exception to allow an expansion of a nonconforming use.

   (B)   The Board of Adjustment may only grant a change in nonconforming use, replacement of a nonconforming use which has been destroyed, or change in location of a nonconforming use of land after having first held a public hearing and having determined that:

      (1)   (a)   The change will be more suitable and appropriate for the lot(s) on which it is located than the existing situation;

         (b)   The proposed change will have a less harmful effect than the existing situation on the properties surrounding the lot(s) in question; and

      (2)   The decision to grant the change will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise be detrimental to the public welfare.

   (C)   The Board of Adjustment, in granting the changes, may prescribe appropriate conditions and safeguards in conformity with this chapter in order to conform with divisions (B)(1) and (B)(2) above. Violation of the conditions and safeguards when made a part of the terms upon which the change was granted, shall be deemed a violation of this chapter and shall be punishable as prescribed in § 153.999 of this chapter.

   (D)   The Board of Adjustment may grant a special exception for the expansion of a nonresidential nonconforming use or enlargement of a structure housing the nonconforming use only after having first held a public hearing and having determined each of the following in the affirmative:

      (1)   The nonconforming use will not occupy any additional lands beyond the boundaries of the lot on which the nonconforming use was located as of the date the use became nonconforming. The lot boundaries used to determine this were those existing at the time the use became nonconforming;

      (2)   The enlargement of any structure(s) or construction of additional structure(s) housing the nonconforming use will not result in a cumulative increase in total square footage of the building(s) greater than 50% of the total building square footage involved with the nonconforming use at the time of the first application for expansion pursuant to this section, or, a cumulative total increase of 1,000 square feet greater than that existing at the time of first application for the expansion, whichever is greater;

      (3)   If a change in use is involved, findings in the affirmative have been made pursuant to division (B) above of this chapter;

      (4)   The application does not involve any increase of size or height of any signage;

      (5)   There will be no odors, light emission (other than that equivalent to street lighting and/or lighting from any signage normally allowed in the N-B District), noises, vibrations or interference in radio or television detectable from the property boundary without instruments;

      (6)   In consort with the expansion, the entire nonconforming use will be screened on all sides in accordance with § 153.046(C) of this chapter. Walls or fences will be permitted only as necessary to reach the required height or opacity and where the structures are used they shall be accompanied by as much planted materials as feasible. Where the nature of the nonconforming use requires substantial street exposure along a major street part or the Board of Adjustment may waive all of the screening along the street. If the screening is waived, four street trees per 100 linear feet of street frontage shall be provided in lieu of the screening;

      (7)   Adequate provision and arrangement has been made or will be made concerning the following, where applicable:

         (a)   Access roads or entrance or exit drives with respect to matters such as automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire and other emergency;

         (b)   Off-street parking and loading areas where required and refuse and other service areas with respect to the impact upon the consideration in division (D)(7)(a) immediately above and the economic, noise, glare, odor and other impacts on adjoining properties and properties in the general neighborhood; and

         (c)   Utilities, water, sewerage, schools, fire and police protection, and other necessary public and private services and facilities with respect to its location, availability and compatibility.

      (8)   The use has been and will remain to be maintained in a manner that does not create a nuisance to neighboring properties;

      (9)   The use will not materially endanger the public health or safety if allowed to expand as proposed and developed according to plan;

      (10)   The proposed expansion together with mitigation plans (such as screening) would be at least equally suitable and appropriate for the lot(s) on which it is located as the existing situation;

      (11)   The proposed expansion, together with the mitigating measures would have a no more harmful effect than the existing situation on the properties surrounding the lot(s) in questions;

      (12)   The use is not a nonconforming use subject to removal after a given period of time (i.e., amortization); and

      (13)   These uses include certain manufactured home parks, certain junkyards and certain signs.

   (E)   The Board of Adjustment, in granting an expansion pursuant to division (D) above may prescribe appropriate conditions and safeguards in conformity with this chapter in order to conform to division (D) above. Violation of the conditions and safeguards when made a part of the terms upon which the expansion was granted, shall be deemed a violation of this chapter and shall be punishable as prescribed in § 153.999 of this chapter.

(Prior UDO, § 15.5) (Ord. ZTA-3-2013, passed 10-3-2013) Penalty, see § 153.999

   The following regulations apply to all applications submitted to the Board of Adjustment.

   (A)   Before a petition for an administrative appeal, interpretation, variance, relief under § 153.278 or for any permissions under §§ 153.053 or 153.279 shall be heard and a public hearing conducted by the Board of Adjustment, a completed application shall be submitted to the Administrator along with a fee in accordance with fee schedule established by the City Council. The fee shall be waived for any petition initiated by the Administrator or other official of the city who initiates a request on behalf of the city. A map clearly identifying the subject property and all contiguous pieces of properties shall accompany the application. In addition, the applicant shall provide a list of names and addresses of the owners of the properties, obtained from the most recent official tax records.

   (B)   The Board of Adjustment shall hold a public hearing on an application no later than 60 days after the completed application has been filed with the Administrator. The Board of Adjustment shall decide on the matter that was presented at the public hearing within 31 days of the close of the public hearing. The decision of the Board of Adjustment shall be in writing and signed by the chair or other duly authorized member of the Board. The decision is effective upon filing the written decision with the clerk to the Board. The decision shall be sent by first class mail to the applicant, property owner and to any person who has submitted written request for a copy, prior to the date the decision becomes effective by the Administrator within five working days after the Board of Adjustment has made a determination on the application. The Administrator shall certify that proper notice has been made.

   (C)   The city shall give notice of all public hearings. The notice shall become a part of the record of the proceedings of the Board of Adjustment. Notice shall be given in the following manner.

      (1)   The city shall send notices by first class mail to the applicant, to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and to owners of all contiguous pieces of property at least ten working days, but not more than 25 days, prior to the public hearing. The notice shall indicate the nature of the public hearing and the date, time and place at which it is to occur. In the absence of evidence to the contrary, the city may rely on the county tax listing to determine owners of property entitled to mailed notice.

      (2)   Notice shall also be posted by the Administrator in a conspicuous location in the City Hall at least ten working days prior to the public hearing. The notice shall indicate the nature of the public hearing and the date, time and place at which it is to occur.

      (3)   A conspicuous sign shall also be placed by the city in a conspicuous location on the subject property(ies) indicating the nature of the public hearing and date, time and place at which it is to occur. The sign shall be placed on the property(ies) at least ten working days but not more than 25 days, prior to the hearing.

      (4)   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.

   (D)   The concurring vote of four-fifths of the Board of Adjustment 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 provision, 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 majority if there are no qualified alternates available to take the place of such members. In all matters coming before the Board of Adjustment, the applicant shall have the burden of providing clear, competent and material evidence in support of the application.

(Prior UDO, § 15.6) (Ord. ZTA-3-2013, passed 10-3-2013; Ord. passed - - ) Penalty, see § 153.999

   (A)   (1)   An application for a rehearing shall be made in the same manner as provided for in the original hearing within a period of 15 days after the date of the Board of Adjustment’s decision. In addition, specific information to enable the Board of Adjustment to determine whether or not there has been a substantial change in facts, evidence, or conditions in the case, shall be presented in writing or graphically. The Board of Adjustment shall deny a rehearing, if, in its judgment, the change in facts, evidence or conditions has not been proven. A public hearing shall not be required to be held by the Board of Adjustment to consider holding a rehearing. Approval of the consideration shall, however, require an affirmative vote of at least three voting members. In the event that the Board of Adjustment finds that a rehearing is warranted, it shall thereupon proceed as in the original hearing except that the application fee shall be waived.

      (2)   Upon the denial of an original application, or upon the denial of an application from which a rehearing has been conducted, a similar application shall not be accepted for hearing for a period of one year after the date of denial of the original application.

   (B)   Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. § 160A-393. A petition for review shall be filed with the clerk of superior court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with § 153.280(B). When first class mail is used to deliver notice, three days shall be added to the time to file the petition.

(Prior UDO, § 15.7) (Ord. ZTA-3-2013, passed 10-3-2013; Ord. passed - - )