(A)   The City Council must follow quasi-judicial procedures for special use permits.

   (B)   Special use permits may be issued by the City Planning Director or his or her designee only after approval by the City Council, for the uses as designated in the table of regulations for special use permits. The petition for a special use permit and the accompanying plans shall be submitted to the City Planning Director or his or her designee. The application shall include all of the requirements pertaining to it as specified in this subchapter. The Planning Board may hear the application and forward its recommendations to the City Council within 30 days after its review of the application. However, it should be noted that no part of the forum or recommendation may be used as a basis for the decision by the City Council.

   (C)   The City Council shall give notice of and conduct a quasi-judicial public hearing as outlined in § 155.266.

   (D)   The special use permit, if approved, shall include approval of plans. In approving the permit, the City Council shall find:

      (1)   The use will not materially endanger the public health, safety or general welfare if located where proposed and developed according to the plan as submitted and approved;

      (2)   The use meets the standards of this chapter;

      (3)   The use will not adversely affect the use or any physical attribute of adjoining or abutting property, or that the use is a public necessity; and

      (4)   The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located.

   (E)   In approving the special use permit, the City Council may designate such conditions in addition and in connection therewith as will, in its opinion, assure that the use in its proposed location will be harmonious with the area in which it is proposed to be located and with the spirit of this chapter. Site-specific conditions must be limited to those required for conformance to the city's development plan, applicable ordinances and/or to address project impacts. Conditions must not be imposed on special use permits that the city does not otherwise have statutory authority to impose. All additional conditions shall be entered in the minutes of the meeting at which the special use permit is granted and also on the special use permit approving, and on the approved plans submitted therewith. All conditions of the special use permit shall be binding on the original applicant, the heirs, successors and assigns. In order to ensure that the conditions and requirements for each special use permit will be fulfilled, the applicant and/or landowner must agree, in writing, to the conditions. The petitioner for the special use permit may be required to enter into a contract with the city providing for the installation of the physical improvements required as a basis for the issuance of the special use permit. Performance of the contract shall be secured by cash or surety bond which will cover the total estimated cost of the improvements as determined by the city; provided, however, that the bond may be waived by the City Council within its discretion. Requirements for development agreements and performance guarantees are outlined in § 154.069.

   (F)   If the City Council denies the permit, the reason for its action shall be entered in the minutes of the meeting at which the action is taken.

   (G)   In addition to the conditions specifically imposed by the City Council, special uses shall comply with the height, area and parking regulations of the zone in which they are located.

   (H)   Any modification or revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit. Any modifications approved shall only be applicable to those properties whose applicants/landowners provide written consent for the modification.

   (I)   In the event of failure to comply with the plans approved by the City Council, or with any other conditions imposed upon the special use permit, the Planning Director or his or her designee shall issue a notice of violation in accordance with § 155.290 and if necessary, shall proceed with the revocation of the special use permit (§ 155.291) following the same process for its approval. However, no building permits for further construction nor a certificate of compliance under this special use permit shall be issued, and the use of all completed structures shall immediately cease and the completed structures not thereafter be used for any purpose other than a use-by-right as permitted by the zone in which the property is located.

(2009 Code, § 155.106) (Ord. passed 10-27-1992; Ord. passed 1-24-2006; Ord. 2017-O-50, passed 5-23-2017; Ord. 2021-Z-19, passed 6-22-2021)

   (A)   The City Council shall hear all applications for approval of a major site plan and shall follow quasi-judicial procedures.

   (B)   Permits may be issued by the City Planning Director or his or her designee only after approval by the City Council. The application and plan sets for major site plan and approval shall be submitted to the City Planning Director or his or her designee. The application shall include all of the requirements pertaining to it as specified in this subchapter and the Planning Director shall prepare a report to the City Council. The Planning Board may hear the application and forward its recommendations to the City Council within 30 days after its review of the application. However, it should be noted that no part of the forum or recommendation may be used as a basis for the decision by the City Council.

   (C)   The City Council shall give notice of and conduct a quasi-judicial public hearing as outlined in § 155.266.

   (D)   The city shall approve, deny or approve with conditions the major site plan. No site plan approval shall be granted unless it complies with the following findings of fact:

      (1)   The plan is consistent with the adopted plans and policies of the city;

      (2)   The plan complies with all applicable requirements of this chapter;

      (3)   There exists adequate infrastructure (transportation and utilities) to support the plan as proposed; and

      (4)   The plan will not be detrimental to the use or development of adjacent properties or other neighborhood uses.

   (E)   In approving the major site plan, the City Council may apply conditions to assure that the use in its proposed location will be harmonious with the area in which it is proposed to be located and with the spirit of this chapter. Site-specific conditions must be limited to those required for conformance to the city's plans and ordinances and/or to address project impacts. Conditions must not be imposed that the city does not otherwise have statutory authority to impose. All conditions shall be entered in the minutes of the meeting and on the approved plans. To ensure that the conditions will be fulfilled, the applicant and/or landowner must agree, in writing, to the conditions.

(Ord. 2021-Z-19, passed 6-22-2021)

   The Board of Adjustment shall hear and decide appeals from decisions of administrative officials charged with the enforcement of this chapter and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:

   (A)   Any person who has standing under G.S. § 160D-1402 or the city may appeal a decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the City Clerk. The notice of appeal shall state the grounds for the appeal. The notice of appeal must be on an official form that may be obtained from the administrator.

   (B)   The owner of the property that is the subject of the decision or the party who sought the decision shall have 30 days from receipt of the written notice of the decision of the administrative official within which to file an appeal. Any other person withstanding 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 pursuant to G.S. § 160D-403(b) given 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.

   (C)   After an appeal is filed, the administrative official shall within five working days notify members of the Board of Adjustment of the appeal. 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.

   (D)   An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the administrative official who made the decision certifies to the Board of Adjustment after notice of appeal has been fled 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 administrative official 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 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.

   (E)   The Board of Adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement or decision or 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.

   (F)   Subject to the provision of division (D) of this section, the Board of Adjustment shall hear and decide the appeal within a reasonable time. The official who made the decision or the person currently occupying that position if the decision-maker is no longer employed by the city shall be present at the evidentiary 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.

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

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

(2009 Code, § 155.235) (Ord. passed 10-27-1992; Ord. 2014-2-25-25, passed 2-25-2014; Ord. 2021-Z-19, passed 6-22-2021)

   (A)   An application for a variance shall be submitted on an official city form obtained from the Planning Director or his or her designee.

   (B)   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.

   (C)   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 division (C), if a variance is granted, the Board of Adjustment shall through conditions placed on the variance protect the general public’s interest and neighboring property owners.

   (D)   Variances may be granted for a specific period or indefinitely.

   (E)   The nature of any variance granted, any conditions imposed, and the time period shall become a part by reference to any related zoning permit or building ordinance.

(2009 Code, § 155.236) (Ord. passed 10-27-1992; Ord. 2014-2-25-25, passed 2-25-2014; Ord. 2021-Z-19, passed 6-22-2021)

   (A)   The Board of Adjustment is authorized to interpret the zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions. If the questions arise in the context of an appeal from a decision of the Planning Director or his or her designee, they shall be handled as provided in § 155.262.

   (B)   An application for a map interpretation shall be submitted to the Board of Adjustment by filing the application with the Planning Director or his or her designee. The application shall contain sufficient information to enable the Board to make the necessary interpretation.

   (C)   Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the following rules shall apply:

      (1)   Boundaries indicated as approximately following the centerlines of alleys, streets, highways, streams or railroads shall be construed to follow the centerlines;

      (2)   Boundaries indicated as approximately following city limits or extraterritorial boundary lines, shall be construed as following the lines, limits or boundaries;

      (3)   Where a district boundary divides a lot or where distances are not specifically indicated on the official zoning map, the boundary shall be determined by measurement, using the scale of the official zoning map; and

      (4)   Where any street or alley is hereafter officially vacated or abandoned, the regulation applicable to each parcel of abutting property shall apply to that portion of the street or alley added thereto by virtue of the vacation or abandonment.

(2009 Code, § 155.237) (Ord. passed 10-27-1992; Ord. 2017-O-57, passed 11-14-2017; Ord. 2021-Z-19, passed 6-22-2021)

   (A) When an appeal is taken to the Board of Adjustment, the Administrator shall have the initial burden of presenting to the Board 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.

   (B)   The burden of presenting evidence sufficient to allow the Board of Adjustment to reach the conclusions set forth in § 155.263(B), as well as the burden of persuasion on those issues, remains with the applicant seeking the variance.

(2009 Code, § 155.238) (Ord. passed 10-27-1992; Ord. 2017-O-57, passed 11-14-2017; Ord. 2021-Z-19, passed 6-22-2021)

      (1)   Subject to division (2) below, the hearing shall be open to the public. 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, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board.

      (2)    The Board of Adjustment or City Council 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.

      (3)   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 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.

      (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 weeks or more elapses between hearing dates.

      (1)   Written notice shall be given by being placed in the mail no later than ten days before the hearing but no more than 25 days prior to the hearing to the following:

         (a)   The appellant or applicant whose application, appeal, or request is the subject of the hearing;

         (b)   The owner of the property, if the owner did not initiate the hearing;

         (c)   The owners of all parcels of land abutting the parcel of land that is the subject of the hearing, as are listed for taxation of real property; and,

         (d)   Any other person who makes a written request for the notice by mailing to the persons a written notice or is otherwise entitled to receive notice by this chapter.

      (2)   No later than ten days before the hearing but no more than 25 days prior to the hearing, 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.

      (1)   All persons who intend to present evidence to the permit-issuing board, shall be sworn. All testimony must be given under oath.

      (3)   The Administrator or staff to the Board shall transmit to the Board all applications, reports, and written materials relevant to the matter being considered. The administrative materials shall become a part of the hearing record. 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 city for at least two years.

      (1)   The Board of Adjustment or City Council 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 City Clerk.

      (2)   A quasi-judicial decision is effective upon filing the written decision with the Clerk to the Board. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective.

(Ord. 2021-Z-19, passed 6-22-2021)

   (A)   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 that support that motion. If a motion to reverse or modify is not made or fails to receive the majority vote of the entire Board necessary for adoption, then a motion to uphold the decision appealed from shall be in order. Insofar as practicable, this motion shall include a statement of the findings, or reasons that support it.

   (B)   Before granting a variance, the Board must take a separate vote and vote affirmatively by a four-fifths majority of the entire Board on each of the five required findings stated in § 155.263(B). Insofar as practicable, a motion to make an affirmative finding on each of the requirements set forth in § 155.263(B) shall include a statement of the specific reasons for findings of fact supporting the motion.

   (C)   A motion to deny a variance may be made on the basis that any one or more of the five criteria set forth in § 155.263(B) are 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.

(2009 Code, § 155.239) (Ord. passed 10-27-1992; Ord. 2014-2-25-25, passed 2-25-2014; Ord. 2017-O-57, passed 11-14-2017; Ord. 2021-Z-19, passed 6-22-2021)

   (A)   In response to questions or comments by persons appearing at the hearing or to suggestions or recommendations by the City Council or Board of Adjustment, the applicant may agree to modify his or her application, including the plans and specifications submitted.

   (B)   Unless the modifications are so substantial or extensive that the Board cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the Board may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the Administrator.

(Ord. 2021-Z-19, passed 6-22-2021)

   Every quasi-judicial decision shall be subject to review by the Superior Court by proceeding in the nature of certiorari pursuant to G.S. § 160D-1402. 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 § 155.266(E)(1) above. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

(Ord. 2021-Z-19, passed 6-22-2021)