A Board of Adjustment is hereby established. The word "board," when used in this article, shall be construed to mean the Board of Adjustment. The board shall have five regular members and two alternates who shall be citizens of the town appointed by the mayor and approved by the Board of Commissioners. One of the initial members shall be appointed for a term of one year; two for terms of two years; and two members and the two alternates for terms of three years. Their successors, including alternates, shall be appointed for terms of three years. Vacancies shall be filled for the unexpired term only. Members may be removed for cause by the Board of Commissioners upon written charges and after public hearing. The members of the board may be compensated according to a schedule adopted by the Board of Commissioners from time to time.

(Ord. No. 2013-12Z, 12-18-2013)

The mayor shall designate one of the members as chairman and another as vice-chairman who shall serve for one year. The board shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this section.

(Ord. No. 2013-12Z, 12-18-2013)

All meetings of the board shall be held at a regular place and shall be open to the public. A quorum of four members shall be present at the designated meeting place before a vote is taken or final disposition of any appeal is made upon which the board is required to pass. 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 that fact. All of the minutes, deliberations, and records of the board shall be a public record. In the event a regular member shall be absent, an alternate member shall be notified to serve in the place of the regular member.

(Ord. No. 2013-12Z, 12-18-2013)

(a)

Appeals. The board shall hear and decide appeals of decisions of administrative officials charged with enforcement of the zoning code, and may hear appeals arising out of any other ordinance that regulates land use or development. For the purposes of this article, the term "administrative official" shall mean any town employee whose official duties include administration and enforcement of the zoning code, as well as the planning board in those instances whether the administration and enforcement of the zoning code has been delegated to that body by the Board of Commissioners.

Appeals shall be heard pursuant to the following:

(1)

Any person who has standing under G.S. 160D-1402(c) or the Town of Manteo 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. A notice of appeal shall be considered filed with the town clerk and the Board of Adjustment when delivered to the town hall, and the date and time of filing shall be entered on the notice by the administrator.

(2)

The official who made the decision - or in the case of the planning board, the chairman of the planning board or his or her designee - 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 must be delivered by personal delivery, electronic mail or by first-class mail.

(3)

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. In the absence of evidence to the contrary, notice given pursuant to G.S. l60D-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)

It shall be conclusively presumed that all persons with standing to appeal decisions of administrative officials 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 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 official who made the decision. Posting of such signs by the landowners or applicant is encouraged, but not required.

(5)

The official who made the decision - or in the case of the planning board, the chairman of the planning board or his or her designee - shall 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.

(6)

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 the 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 town 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.

(7)

Subject to subsection (5) of this section, the Board of Adjustment must hear and decide the appeal within a reasonable time.

(8)

The official who made the decision - or in the case of the planning board the chairman of the planning board or his or her designee - or the person currently occupying that position, if the decision maker is no longer employed by or an official of the town, shall be present at the evidentiary hearing as a witness.

(9)

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.

(10)

A majority of the board members shall be required to reverse any decision of an administrative official charged with the enforcement of this chapter. The board may reverse or affirm, in whole or in part, or may modify the decision appealed from, and shall make any order, requirement, decision or determination that ought to have been made. To this end, the board shall have all the powers of the official who made the decision.

(b)

Variances. When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing of all of the following:

(1)

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.

(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.

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

(Ord. No. 2013-12Z, 12-18-2013; Ord. No. ZTA-21-02, Art. III(Pt. 54), 6-16-2021)

(a)

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 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.

(b)

Section 1-20 shall apply to conflicts of interest for members of the board.

(c)

The Board of Adjustment shall determine contested facts and make its decision within a reasonable time. 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 and reflect the board's determination of contested facts and their application to the applicable standards. The written decision shall be 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 in the office of the zoning administrator. The decision of the Board of Adjustment 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 has become effective. The zoning administrator shall certify that proper notice has been made.

(d)

Every quasi-judicial decision of the Board of Adjustment shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402. The petition for the writ of certiorari must be filed with the Dare County Clerk of Court by the later of 30 days after the decision is effective or a written copy of the board's decision has been delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and any other person who has submitted a written request for a copy, prior to the date the decision becomes effective. A written copy of the board's decision is effective upon the filing of the written decision with the clerk to the board or in the office of the zoning administrator. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

(Ord. No. 2013-12Z, 12-18-2013; Ord. No. ZTA-21-02, Art. III(Pt. 55), 6-16-2021)

The chairperson of the board or any member temporarily acting as chairperson and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board.

(Ord. No. 2013-12Z, 12-18-2013)

Upon written request by a party with standing in the matter explaining why it is necessary for certain witnesses or evidence to be compelled, the board chairperson has the authority to subpoena witnesses and compel the production of evidence he/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 appealed to the full Board of Adjustment.

(Ord. No. 2013-12Z, 12-18-2013)