Appeals of orders or decisions of the zoning administrator shall be conducted as follows:

(1)

Notice of appeal. Any person who has standing under G.S. 160D-1402(c) or the county may appeal any order or decision of any administrator of this chapter to the board of adjustment (BOA). An appeal is initiated by filing a written notice of appeal with the clerk to the board of adjustment, which specifies the grounds for the appeal. The clerk shall note the date and time of receipt of the appeal. The BOA shall hear all appeals within a reasonable time except as referenced in subsection (3).

(2)

Time to appeal. The property owner or their authorized agent shall have thirty (30) days from receipt of the written notice of the determination 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 determination to file an appeal. It is conclusively presumed that all persons with standing to appeal have constructive notice of the determination 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 is the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision.

(3)

Stay of action. 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 BOA 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 administrator who made the decision certifies to the BOA 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 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 BOA shall meet to hear the appeal within fifteen (15) days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation shall not stay the further review of an application for development approvals to use such property; in these situations the appellant or county may request and the BOA may grant a stay of a final decision of development approval applications affected by the issue being appealed.

(4)

Procedures. The administrator who made the decision shall transmit to the BOA all documents and exhibits constituting the record upon which the decision appealed from are 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. 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 county would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the BOA shall continue the hearing.

(5)

BOA action. The BOA may reverse or affirm, wholly or partially, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that should be made. BOA decisions shall include a statement of the specific reasons or findings of fact that support the motion consistent with section 21-315(8).

(6)

Judicial challenge. Every decision shall be subject to review by superior court by proceedings identified in section 21-315(8).

(Ord. of 1-19-98, § XIV; Amend. of 4-21-14; Amend. of 6-21-21; Amend. of 11-15-21)

Requests for a variance from the requirements of this chapter shall be in accordance with the following criteria:

(1)

Application for variance. An application for a variance shall be submitted to the BOA by filing a copy of the application with the administrator in the planning department. Hearings for such applications shall be in conformance with the applicable provisions of article XII. The BOA shall hear variance requests within a reasonable time.

(2)

Variance criteria. A variance shall be granted by the BOA if it concludes that strict enforcement of this chapter would result in unnecessary hardships for the applicant. The board may reach these conclusions if it makes the following findings:

a.

Unnecessary hardship would result from the strict application of the ordinance. It is not 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 and/or conditions common to the neighborhood or 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;

c.

The hardship is not the result of the property owner or applicant's own actions. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance is not 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;

e.

The variance will not result in a land use otherwise not permitted in the applicable zoning district nor authorize the extension of a nonconforming situation in violation of article VI, or other applicable provisions of this chapter; and

f.

If applicable, the setback reduction is no more than fifty (50) percent of that required and the resulting setback is no less than five (5) feet from any property line or right-of-way.

(3)

Approval. Prior to granting a variance, the BOA must vote affirmatively on all of the required findings listed in subsection (2). Each motion to make an affirmative finding shall set forth the specific reasons or findings of fact supporting such motion.

(4)

Denial. A motion to deny a variance request may be made on the basis that one (1) or more of the criteria are not satisfied. Such a motion shall include a statement of the specific reasons or findings of fact that support it. A reapplication for a denied variance may not be made within one (1) year of the original decision, unless substantial changes have occurred in the facts, evidence or conditions of the application, or property in question.

(5)

Conditions. In granting variances, the BOA may impose appropriate conditions, including a limitation on the duration of the variance, provided they are reasonably related to the variance. All such conditions are enforceable as any other applicable requirement of this article.

(6)

Revocation. The BOA may consider revocation of an approved variance through the same procedure as the original approval. Following the hearing, the BOA may elect to revoke the variance if it is factually determined that one (1) or more instances listed below have occurred:

a.

Substantial departure from the approved application, plans, or specifications;

b.

Refusal or failure to comply with the requirements of any applicable local development regulation;

c.

False statements or misrepresentations made in securing the approval; or

d.

Mistakenly issued in violation of an applicable State or local law.

(Ord. of 1-19-98, § XIV; Amend. of 4-21-14; Amend. of 6-21-21; Amend. of 11-15-21)

The administrator shall keep a record of all variances from this chapter. The nature of the variance and any supplemental conditions shall be entered on the face of any zoning permit, or the zoning permit may note the issuance of the variance and refer to the written record of the variance for further information. In the case of the Water Supply Watershed (WS) Overlay provisions, this record shall be submitted to the supervisor of the classification and standards group, water quality section, division of environmental management on an annual basis and shall provide a description of each project receiving a variance and the reasons for granting the variance.

(Ord. of 1-19-98, § XIV; Amend. of 4-21-14)

Editor's note— An amendment adopted June 21, 2021, repealed § 21-334. Former § 21-334 pertained to interpretations and derived from an ordinance adopted January 19, 1998 and an amendment adopted April 21, 2014.

The administrator shall review all variance requests from the Water Supply Watershed (WS) Overlay provisions to determine whether the request constitutes a minor or major variance. If conditions warrant, the administrator or the board of commissioners may require that a minor variance be reviewed as a major variance. In addition to the other provisions in this article, variance requests from the watershed overlay provisions shall be reviewed as follows:

(1)

Notice to affected governments. The administrator shall notify, in writing, and provide a description of the variance request to each local government having jurisdiction in the watershed and the entity using the watershed for consumption. Each local government receiving notification shall have ten (10) working days to respond, in writing, to the variance request. All responses shall become part of the record for the board of commissioners proceedings for the particular variance request. A record of all variances granted from the water supply watershed provisions shall also be submitted each calendar year to the division of water quality on or before January 1 of the following calendar year and shall provide a description of each project receiving a variance and the reasons for granting the variance.

(2)

Transmittal of response. The request, an accompanying staff recommendation, and responses from any other local government within the affected watershed shall be forwarded to the board of commissioners for review and action, as stipulated in this article.

(3)

Minor variance. The board of commissioners' decision is final.

(4)

Major variance. Depending on the action by the board of adjustment, the following provisions shall apply:

a.

Denial. The board of adjustment's decision is final.

b.

Approval. If the board of commissioners recommends approval, a record of the variance request, meeting proceedings, and applicable conditions shall be forwarded to the state environmental management commission for final review and action. In cases where the environmental management commission denies the request, the decision is final and the administrator shall notify the applicant of the approval. In cases where the commission adds conditions which may affect the design of a development plan, the administrator shall forward the commission's decision to the board of commissioners for further review and action.

(Ord. of 1-19-98, § XIV; Amend. of 4-21-14)

Editor's note— An amendment adopted September 15, 2025, repealed § 21-336. Former § 21-336 pertained to judicial review of BOA decisions and derived from an ordinance adopted February 1, 1999; an amendment adopted March 5, 2012; an amendment adopted April 21, 2014 and an amendment adopted June 12, 2021.