1. An appeal from any final order or decision of the administrator may be taken to the board of adjustment by any person aggrieved. An appeal is taken by filing with the administrator and the board of adjustment a written notice of appeal specifying the grounds therefore. A notice of appeal shall be considered filed with the administrator and the board of adjustment when delivered to the planning department, and the date and time of filing shall be entered on the notice by the planning staff.
2. Time to appeal. The owner or other party has thirty (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 thirty (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 pursuant to G.S. 160D-403(b) given by first class mail is deemed received on the third (3rd) business day following deposit of the notice for mailing with the United States Postal Service.
3. Whenever an appeal is filed, the administrator shall forthwith transmit to the board of adjustment all the papers constituting the record relating to the action appealed from.
4. Stays.
   1. 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 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 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 board of adjustment shall meet to hear the appeal within fifteen (15) days after the request is filed.
   2. 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 of adjustment may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
5. The board of adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement or decision of determination appealed from and shall make any order, requirement, decision or determination that in its opinion ought to be made in the case before it. To this end, the board shall have all the powers of the officer from whom the appeal is taken.
6. Except as provided in 160D-1403.1, appeals of decisions made by the staff under Chapter 160D shall be made to the board of adjustment. The board of adjustment shall comply with all of the procedures and processes applicable to a board of adjustment hearing appeals. Appeal of a decision made pursuant to an erosion and sedimentation control regulation, a stormwater control regulation, or a provision of the housing code shall not be made to the board of adjustment unless required by Town ordinance or code provision.
7. Standing. Any person who has standing under G.S. 160D-1402(d) or the Town may appeal an administrative decision to the board of adjustment. An appeal is taken by filing a notice of appeal with the administrator. The notice of appeal shall state the grounds for the appeal.
8. Alternative Dispute Resolution. The parties to an appeal that has been made under §160D-405 may agree to mediation or other forms of alternative dispute resolution. The development regulation may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
9. No Estoppel. – G.S. 160D-1403.2, limiting the Town's use of the defense of estoppel, applies to proceedings under this section.

Amended January 21, 2021

1. An application for a variance shall be submitted to the board of adjustment by filing a copy of the application with the administrator in the planning department. Applications shall be handled in the same manner as applications for special use permits in conformity with the provisions of §44, §45, and §52.
2. When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the board of adjustment shall vary any of the provisions of the zoning regulation upon a 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 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 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.
3. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.
4. A variance may be issued for an indefinite duration or for a specified duration only.
5. The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit, or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of this ordinance.
6. No change in permitted uses may be authorized by variance.
7. Any other development regulation that regulates land use or development may provide for variances from the provisions of those ordinances consistent with the provisions of 160D-705(d).

Amended January 21, 2021

Amended June 16, 2014, January 21, 2021

Amended January 21, 2021

1. As provided in §61, the board of adjustment shall hear and decide all appeals or variance requests, as expeditiously as possible, consistent with the need to follow regularly established agenda procedures, provide notice in accordance with Article VI, and obtain the necessary information to make sound decisions.
2. An application for an appeal or variance shall be submitted to the board of adjustment by filing a copy of the application with the administrator in the planning department. Applications for the next regularly scheduled Board of Adjustment meeting must be submitted to the administrator no later than twenty (20) working days prior to the Board of Adjustment’s regular meeting. Application submitted after the deadline shall be heard the month following the next regular meeting.

Amended February 15, 2016, January 21, 2021

1. Appeals. When an appeal is taken to the board of adjustment in accordance with §81, the administrator shall have the initial burden of presenting to the board of adjustment sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.
2. Variances. The burden of presenting evidence sufficient to allow the board of adjustment to reach the conclusions set forth in §82(b) as well as the burden of persuasion on those issues, remains with the applicant seeking the variance.

Amended January 21, 2021

1. Appeals.
   1. With respect to appeals, a motion to reverse, affirm, or modify the order, requirement, decision, or determination appealed from shall include, insofar as practicable, a statement of the specific reasons or findings of facts that support the motion. If a motion to reverse or modify is not made or fails to receive the majority vote necessary for adoption, then a motion to uphold the decision appealed from shall be in order.
   2. 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.
2. Variances.
   1. Before granting a variance, the board must take a separate vote and vote affirmatively (by a fourfifths majority) on each of the four (4) required findings stated in §82(b). Insofar as practicable, a motion to make an affirmative finding on each of the requirements set forth in §82(b) shall include a statement of the specific reasons or findings of fact supporting such motion.
   2. A motion to deny a variance may be made on the basis that any one or more of the four (4) criteria set forth in §82(b) is not satisfied or that the application is incomplete. Insofar as practicable, such a motion shall include a statement of the specific reasons or findings of fact that support it. This motion is adopted as the board's decision if supported by more than one-fifth of the board's membership (excluding vacant seats).
3. See §61 regarding reconsideration of Board action.

Amended January 21, 2021