A.

Variance. When unnecessary hardships would result from carrying out the strict letter of the 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. Hardship 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.

B.

Reserved.

C.

Variance Submittal Procedure.

1.

Before a variance shall be considered, a completed application on a form provided by the Town of Mint Hill, accompanied by a filing fee set by the Board of Commissioners, shall be submitted to the Administrator. The application shall be accompanied by a map clearly showing the subject property and all contiguous property on either side and to the rear and all property across any street or public right-of-way from the subject property.

2.

Within five (5) working days after having received an application for a variance, the Administrator shall determine whether the application is complete. If the Administrator determines that the application is not complete, the Administrator shall notify the Applicant of the deficiencies. The Administrator shall take no further action on the application until the deficiencies are remedied. If the Administrator fails to notify the Applicant within said five (5) working day period, the application shall be deemed complete.

3.

The filing fee shall be placed in the general fund of the Town of Mint Hill and shall be returned to the Applicant only when the application is withdrawn by letter received by the Administrator prior to the mailing of notices to adjacent property owners. The application shall be processed and an evidentiary hearing called and advertised as set forth in Section 9.4(A).

4.

All submitted applications when deemed complete by the Administrator shall be scheduled for an evidentiary hearing with the Board of Adjustment.

D.

Variance Evidentiary Hearing and Notice Requirements.

1.

Notice shall be in mailed/posted as set forth in Subsection 9.4(A).

2.

The Board of Adjustment shall hold a quasi-judicial evidentiary hearing on an application no sooner than fourteen (14) days and no later than thirty (30) working days after a complete application has been filed with the Administrator. The Board of Adjustment shall decide on the matter presented at the evidentiary hearing within thirty-one (31) days of the close of the evidentiary hearing.

3.

The granting of a variance requires the concurrent vote of four-fifths (4/5) of the voting members of the Board of Adjustment. Vacant positions on the Board of Adjustment and Board of Adjustment members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the Board of Adjustment for calculation of the requisite majority if there are no qualified alternate members available to take the place of such members

4.

All decisions of the Board of Adjustment shall be in writing and filed with the Administrator. A written copy thereof shall be sent by first class mail to the Applicant (and, in the case of map interpretations, to all owners of property that gave rise to the interpretation request and to any party who had filed a written request for such copy at the time of the evidentiary hearing, within ten (10) working days of the date of decision of the Board of Adjustment.

E.

Action by the Board of Adjustment; Findings; Burdens.

1.

Board of Adjustment Review. In considering an application for a variance, the Board of Adjustment shall review the application, the approval criteria set forth in Subsection 9.1(B) and all testimony and evidence received at the evidentiary hearing.

2.

Burdens of Proof. The Applicant shall have the burden of providing clear, competent and material evidence in support of the application. Before a variance from the provisions of this Ordinance shall be granted, the Applicant shall clearly demonstrate that the approval criteria set forth in Subsection 9.1(B) are met.

3.

Factors for Consideration. The Board of Adjustment, in considering an application for a variance, shall give due consideration to the following:

a.

No nonconforming use of land or structures in the same district, and no permitted use of land or structures in other districts, shall be considered grounds for the granting of a variance.

b.

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

4.

Requisite Findings. Before granting a variance, the Board of Adjustment shall take a separate vote on each of the findings shown in Subsection 9.1(B), and determine that each has been affirmatively demonstrated. A motion to make an affirmative finding on each of the findings contained in Subsection 9.1(B) shall be accompanied by one or more reasons, based on evidence heard at the evidentiary hearing, supporting such motion.

5.

Conditions. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

6.

Board of Adjustment Options. After conclusion of the evidentiary hearing, the Board of Adjustment shall have the following options:

a.

Approve the application for a variance as requested; or

b.

Approve the application for a variance with fair and reasonable conditions attached that the Board of Adjustment feels are necessary to satisfy one or more of the findings contained in Subsection 9.1(B); or

c.

Deny the variance application.

F.

Permits and Enforcement After Variance Approval. Once the Board of Adjustment approves a variance, the Applicant shall follow the procedures found elsewhere in this Ordinance for securing the requisite permit to proceed with the development of the property. All orders, decisions, determinations and interpretations made by the Administrator under those procedures shall be consistent with the variance granted by the Board of Adjustment.

G.

Variance Expiration. Unless otherwise authorized by the Board of Adjustment and included in its decision to grant a variance, any order of the Board of Adjustment in granting a variance shall expire, if a building permit, or certificate of occupancy for such use if a building permit is not required, has not been obtained within twenty-four (24) months from the date of the Board of Adjustment decision.

H.

Variance Rehearing Upon Substantial Change in Facts. An application for a variance rehearing, including payment of a refiling fee set by the Board of Commissioners, shall be made in the same manner as provided for an original hearing with a period of fifteen (15) days after the date of denial of the original application. 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. A rehearing shall be denied by the Board of Adjustment, if, in its judgment, such change in facts, evidence or conditions has not been proven. In the event that the Board of Adjustment finds that a rehearing is warranted, it shall thereupon proceed in the same manner as for the original hearing.

I.

Variance Petition Resubmission. Upon the denial of an original application, or upon the denial of an application for which a rehearing has been conducted, a similar application may not be filed for a period of one year after the date of denial of the original application. Upon reapplication, the Applicant shall clearly demonstrate, in addition to the findings contained in Subsection 9.1(B), that:

1.

Circumstances affecting the subject property have substantially changed; or

2.

The application is changed in some substantial way; or

3.

New information or evidence is available that could not with reasonable diligence have been presented at a previous hearing.

(Ord. No. 598, 4-14-2011; Ord. No. 644, 11-14-2013; Ord. No. 798, 7-8-2021)

A.

Appeals. The board of adjustment shall hear and decide appeals decisions of administrative officials charged with enforcement of the zoning or unified development ordinance and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:

1.

Any person who has standing under G.S. 160D-1402 or the town may appeal a decision to the board of adjustment. An appeal is taken by filing a notice of appeal with the town clerk. The notice of appeal shall state the grounds for the appeal.

2.

The official who made the decision 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.

3.

The owner or other party shall have thirty (30) days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have thirty (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. 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.

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" in letters at least six (6) 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 (10) 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. Absent an ordinance provision to the contrary, posting of signs shall not be required.

5.

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

6.

An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from 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 the ordinance. 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 shall meet to hear the appeal within fifteen (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 the ordinance 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.

7.

Subject to the provisions of subdivision (6) of this subsection, the board of adjustment shall hear and decide the appeal within a reasonable time.

8.

The official who made the decision 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 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, 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.

9.

When hearing an appeal pursuant to G.S. 160D-947 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.

10.

The parties to an appeal that has been made under this subsection may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.

B.

Appeal of Planning Board Decisions. If the Planning Board disapproves a Site Plan of a subdivision, the grounds for such disapproval shall be stated upon the records of the Planning Board. After such disapproval an appeal from the decision of the Planning Board may be taken to the Board of Commissioners of Mint Hill. If the Planning Board approves a Preliminary or Final Plat of a subdivision and the Administrator believes such approval is contrary to the provisions of this Ordinance, then the Administrator shall submit the preliminary or final plat to the Board of Commissioners for reconsideration. An appeal may be taken by the Applicant or Administrator to the Board of Commissioners within thirty (30) days from the date of the decision. The Board of Commissioners of Mint Hill may approve, disapprove in whole or in part or otherwise modify the action of the Planning Board. A Final Plat of a subdivision approved by the Board of Commissioners of Mint Hill upon appeal from the decision of the Planning Board shall be eligible for recording by the Register of Deeds of Mecklenburg County or Union County.

C.

Hearing Required on Appeals.

1.

Before making a decision on an appeal, the Board of Adjustment or the Board of Commissioners, as the case may be, shall hold a hearing on the appeal. Such hearing shall be a quasi-judicial hearing in accordance with Section 9.4.

2.

Members shall be recused from voting on an issue in the event of a conflict of interest as set forth in G.S. 160D-109.

3.

The hearing shall be open to the public and all persons interested in the outcome of the appeal or application shall be given an opportunity to present evidence and arguments and ask questions of persons who testify. Notwithstanding the foregoing, the hearing board may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross examination of witnesses so that the matter at issue may be heard and decided without undue delay.

4.

The hearing board may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made. No further notice of a continued hearing needs to be published unless a period of six (6) weeks or more elapses between hearing dates. A final decision will be made by the hearing board no later than ninety (90) days after the close of such hearing.

D.

Other Ordinance Provisions. There are specific appeals procedures and timeframes applicable to particular permits or processes set forth in other articles and sections of this Ordinance (including, but not limited to: Article 6, Section 6.6(IV) - Appeal of SWIM Buffers; Article 6, Section 6.7.16 - Appeals for Soil Erosion and Sedimentation Control; Subsection 6.8.2(205) of the Post-Construction Ordinance found in Article 6, Section 6.8). To the extent a particular permit or process has its own appeal procedures and timeframes set forth elsewhere in this Ordinance that directly conflict with the procedures or timeframes set forth in this part, then they shall control over these general procedures However, where not in direct conflict, these procedures shall supplement and work in tandem with the procedures set forth in other sections.

(Ord. No. 598, 4-14-2011; Ord. No. 644, 11-14-2013; Ord. No. 798, 7-8-2021)

A.

An application for a map interpretation shall be submitted to the Board of Adjustment by filing a copy of the application with the Administrator. The application shall contain sufficient information to enable the Board of Adjustment to make the necessary interpretation.

B.

The Board of Adjustment shall conduct a quasi-judicial hearing as set forth in Section 9.4.

C.

Upon a ruling regarding an interpretation of the Official Zoning Map, said map shall be altered to accurately depict the Board of Adjustment's ruling and all uses of land on the affected property(ies) shall thereafter be in harmony with the rules and regulations of the appropriate zoning district(s) for such properties.

(Ord. No. 598, 4-14-2011)

Wherever a quasi-judicial hearing is required (for example, in hearing appeals, variance applications, or interpretations) the following procedures shall be followed:

A.

Notice of Hearing. Except as provided in Subsection 10.6(H) (dealing with stop work orders and appeals from such). Notice of hearings conducted pursuant to this section 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 zoning or unified development ordinance. 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. The notice must be deposited in the mail at least ten (10) days, but not more than twenty-five (25) days, prior to the date of the hearing. Within that same time period, 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.

B.

Evidence.

1.

The provisions of this Section apply to all hearings for which a notice is required.

2.

All persons who intend to present evidence, rather than arguments only, shall be sworn.

3.

All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (crucial findings) shall be based upon reliable evidence. Competent evidence (evidence admissible in a court of law) shall be preferred whenever reasonably available, but in no case may crucial findings be based solely upon incompetent evidence unless competent evidence is not reasonably available, the evidence in question appears to be particularly reliable and the matter at issue is not seriously disputed.

4.

The applicant, Town, 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.

C.

Record.

1.

An audio recording shall be made of all quasi-judicial hearings required under this Ordinance, and such recordings shall be kept until the official minutes are adopted. Accurate minutes shall also be kept of all such proceedings, but a transcript need not be made.

2.

Whenever practicable, all documentary evidence presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings and shall be kept by the Town for at least two (2) years.

D.

Written Decision.

1.

All decisions of the Board of Adjustment and of the Board of Commissioners shall be filed with the Town Clerk of Mint Hill, and a written copy thereof shall be delivered to the Applicant by personal service or registered mail. Copies shall also be mailed by registered mail to all other persons who request a copy of the hearing or who make a written request for a copy at the time of the hearing.

2.

In addition to a statement of the reviewing board's ultimate disposition of the case and any other information deemed appropriate, the written decision shall state the reviewing board's findings and conclusions, as well as supporting reasons or facts, whenever this Ordinance requires the same as a prerequisite to taking action.

(Ord. No. 598, 4-14-2011; Ord. No. 644, 11-14-2013; Ord. No. 798, 7-8-2021)

The filing of any type of hearing application under this Article stays all proceedings unless the Administrator certifies that a stay in his/her opinion will cause imminent peril to life or property, or, that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of this Ordinance. In that event, proceedings shall not be stayed except by a restraining order, which may be granted by the Board of Adjustment, Board of Commissioners, or by a court of record.

(Ord. No. 598, 4-14-2011)