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Applications for development approval shall utilize the procedures set forth in this section.
(A) General. Applications submitted under this in accordance with division 3.1.5, Application Submission, shall be submitted by the landowner, a lessee or person holding an option or contract to purchase or lease the land, or an authorized agent of the landowner. An easement holder may also apply for development approval for such development as is authorized by the easement.
(B) Applicant not the owner. If the applicant is not the owner (or sole owner) of the land, or is a contract purchaser of the land, a notarized form supplied by the town and signed by the owner(s) consenting to the submission of the application shall be submitted along with all the required application information, with the exception of applications to amend the Official Zoning Map initiated by the Town Council, Planning Board, or Ordinance Administrator subject to divisions 3.2.(C) of this ordinance.
3.1.5 Application submission. All applications shall be submitted to the Ordinance Administrator on such forms and in such numbers as have been established for that type of development application. Applications which do not meet the requirements of division 3.1.6, Determination of Completeness, shall not be considered to be submitted, and their review shall be deferred until such time that all requirements of that division have been fulfilled. The Ordinance Administrator may require a pre-submittal conference prior to any application, at the applicant’s expense.
(B) Incomplete applications. If the application is determined to be incomplete, the Ordinance Administrator shall notify the applicant of the deficiencies within ten business days following submittal. Following notification, the applicant may correct the deficiencies and resubmit the application for review.
(A) If a land development regulation is amended by the Town Council between the time a development permit application was submitted and a development permit decision is made or if a land development regulation is amended after a development permit decision has been challenged and found to be wrongfully denied or illegal, the development permit applicant may choose which adopted version of the rule or ordinance will apply to the permit and use of the building, structure, or land indicated on the permit application in the manner established in G.S. § 143-755.
(B) If the development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, the development permit applicant shall not be required to await the outcome of the amendment to the rule, map, or ordinance prior to acting on the development permit.
(C) If an applicable rule or ordinance is amended after the development permit is wrongfully denied or after an illegal condition is imposed, as determined in a proceeding challenging the permit denial or the condition imposed, the development permit applicant may choose which adopted version of the rule or ordinance will apply to the permit and use of the building, structure, or land indicated on the permit application. Provided, however, any provision of the development permit applicant's chosen version of the rule or ordinance that is determined to be illegal for any reason shall not be enforced upon the applicant without the written consent of the applicant.
(D) If a permit application is placed on hold at the request of the applicant for a period of six consecutive months or more, or the applicant fails to respond to comments or provide additional information reasonably requested by the local or state government for a period of six consecutive months or more, the application review shall be discontinued and the development regulations in effect at the time permit processing is resumed shall be applied to the application.
(E) Multiple permits for development project. Subject to G.S. § 160D-108(d), where multiple local development permits are required to complete a development project, the development permit applicant may choose the version of each of the local land development regulations applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within 18 months of the date following the approval of an initial permit. For purposes of the vesting protections of this subsection, an erosion and sedimentation control permit or a sign permit is not an initial development permit.
3.1.8 Final approval by the Ordinance Administrator. When an application that is subject to final approval by the Ordinance Administrator is submitted and determined to be complete, he or she shall review the application and approve or deny it based on the standards set forth in the ordinance. Following his or her approval or denial of the application, the Ordinance Administrator shall notify the applicant of his or her decision within the time period set forth in the submission and review schedule.
3.1.10 Public hearings. Legislative hearings will be scheduled for LDO text amendments, zoning map amendments, Conditional Zoning District classifications, and the establishment of vested rights. The Ordinance Administrator shall be responsible for scheduling public hearings for all applications for which one is required. The hearing may be scheduled for either a regular meeting or a special called meeting of the Town Council. Hearings shall be scheduled in a manner that will allow sufficient time for public notice to be given in accordance with statutory requirements.
(B) Published notice. When the provisions of this ordinance require that notice of a public hearing or meeting be published pursuant to G.S. § 160D-601, the Ordinance Administrator shall publish a notice of the meeting or public hearing once a week for two successive weeks in a newspaper having general circulation in the town. The first notice shall be published not less than ten days nor more than 25 days prior to the date fixed for the hearing or meeting. In computing such period, the day of publication is not included but the day of the hearing or meeting shall be included.
(4) Mailed notice shall not be required when an application to amend the Official Zoning Map includes more than 50 different lots or tracts, owned by at least 50 different landowners, provided that the town publishes a notice (occupying at least one-half of a newspaper page) in a newspaper of general circulation once a week for two consecutive weeks beginning at least ten but not more than 25 days prior to the public hearing date. Affected landowners residing outside of the town’s jurisdiction or the newspaper’s circulation area shall be notified via first class mail in accordance with the procedures set forth in divisions (C)(1) and (C)(2) above.
(1) When a zoning map amendment is proposed, the Ordinance Administrator shall prominently post the notice on the subject property or on an adjacent public street or highway right- of-way at least ten days prior to the first public hearing or meeting. When multiple parcels are included within a proposed zoning map amendment, a posting on each individual parcel is not required, but the town shall post sufficient notices to provide reasonable notice to interested persons. In computing such period, the day of the posting shall not be counted, but the day of the hearing shall be counted. Posted notices shall remain in place until such time that the approving authority has rendered its final decision on the matter.
(2) Failure of an affected party to receive written notice shall not invalidate subsequent action. In all cases, however, the requirements for the timing of the notice and for specifying the time, date, and place of a public hearing or meeting and the location of the subject property(ies) shall be strictly adhered to.
(3) If question arises at the hearing or meeting regarding the adequacy of the notice, the reviewing or decision-making body shall direct the Ordinance Administrator to make a formal finding as to whether there was substantial compliance with the notice requirements of this ordinance, and such findings shall be made available to the reviewing or decision-making body prior to further action being taken on the request.
3.1.12 Public notification of quasi-judicial decisions. Evidentiary hearings will be scheduled for special use permits, variance, watershed variances, floodplain variances, and appeals of administrative decisions. The Ordinance Administrator shall be responsible for scheduling evidentiary hearings for all applications for which one is required. The hearing may be scheduled for either a regular meeting or a special called meeting of the Board of Adjustment. Hearings will be scheduled in a manner that allows sufficient time for notice to be given in accordance with statutory requirements.
3.1.13 Notice of evidentiary hearings. Notice of evidentiary hearings 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 town 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 days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the town 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. The Board of Adjustment may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the Board of Adjustment is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.
3.1.14 Administrative materials. The Ordinance Administrator shall transmit to the Board of Adjustment all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the Board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing.
3.1.15 Presentation of evidence. The applicant, the local government, 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 of Adjustment. 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.
3.1.16 Appearance of official. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the local government, shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in a notice of appeal. If any party or the local government would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board of Adjustment shall continue the hearing.
3.1.17 Oaths. The Chair of the Board of Adjustment or any member acting as Chair and the Clerk to the Board are authorized to administer oaths to witnesses in any matter coming before the Board. Any person who, while under oath during a proceeding before the Board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
3.1.18 Subpoenas. The Board of Adjustment through the Chair or, in the Chair's absence, anyone acting as Chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the local government, and any person with standing under G.S. § 160D-1402(c) may make a written request to the Chair explaining why it is necessary for certain witnesses or evidence to be compelled. The Chair shall issue requested subpoenas he or 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 immediately appealed to the full Board. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the Board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.
3.1.20 Voting. 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 under G.S. § 160D-109(d) 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.
3.1.21 Quasi-judicial decisions. The Board of Adjustment shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, the Board may reverse or 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. 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 of Adjustment’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 of Adjustment. A quasi-judicial decision is effective upon filing the written decision with the Town Clerk. The decision of the Board of Adjustment shall be delivered within a reasonable time 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 becomes effective. The person required to provide notice shall certify that proper notice has been made.
3.1.22 Judicial review of quasi-judicial decisions. Every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari pursuant to G.S. § 160D-1402. Appeals 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 division 3.1.20. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition. This division 3.1.22, is a summary of state law only and parties are advised to consult the state’s general statutes which shall govern judicial review of quasi-judicial decisions.
(2) Limitations. The restrictions and conditions imposed must be directly related, in both type and scope, to the impact that the proposed development would have on the public and surrounding lands. All conditions imposed shall be expressly set forth in the motion by the decision-making body to approve the development application.
(A) Request prior to publication of notice. An applicant may request that a decision-making body’s consideration of an application at a public hearing be deferred by submitting a written request for deferral to the Ordinance Administrator prior to the publication of notice for the public hearing. The Ordinance Administrator may grant such requests for good cause. The date of the new public hearing at which the application will be heard shall be set at the time the deferral is granted.
(B) Request after publication of notice. If a request for deferral of consideration of an application by a decision-making body is submitted subsequent to publication of notice, the request for deferral shall be placed on the public hearing agenda and acted upon by the decision-making body. The decision-making body may grant such requests for good cause. The date of the new public hearing at which the application will be heard shall be set at the time the deferral is granted. If a deferral is granted, the application may be subject to additional application fees to defray the costs of processing the application and advertising the public hearing, if any. Any additional fees must be paid to the town prior to the readvertisement of the public hearing notice.
(A) Clerical errors. Minor additions, deletions, or corrections constituting clerical errors in an application may be made without referral of the application, as amended, back to the Ordinance Administrator for review and preparation of a staff report, or to any review bodies as is required for the original review of the application.
(B) Major changes. No substantive changes to a development application related to uses, densities, intensities, street layout, access, open space configuration, or other major element shall be made after notification of a public hearing. Major changes by the applicant after notification of a public hearing require that the original application be withdrawn and a new application be submitted along with any required fees. The resubmitted application must go through the entire review process as if it were a new application in order to ensure the proper review of all changes.
(F) Notification of decision to applicant. Within a reasonable period of time after a decision on an application, the Town Clerk shall notify the applicant of the decision in writing. Within a reasonable period of time after the decision, a copy of the decision shall also be made available to the public in the office of the Town Clerk.
(G) Lapse of approval. Lapse of approval (also referred to as “expiration”) shall occur as provided by this ordinance for the various types of development applications. If no provision for lapse is given by this ordinance for a particular type of development permit or approval, and if no lapse period is imposed as part of an approval by the decision-making body, lapse shall occur if development is not commenced or a subsequent permit authorized by that approval, or an extension is not obtained within two years.
(H) Examination of application and supporting documents. At any time upon reasonable request and during normal business hours, any person may examine an application, a finalized staff report and materials submitted in support of or in opposition to an application in the office of the Town Clerk. Copies of such materials shall be made available at a reasonable cost.
(Ord. A.21.01, passed 6-3-2021)