For all appeals, variances, and special use permits, quasi-judicial (evidentiary) procedures of G.S. § 160D-406 must be followed:
(a) Notice of hearing.
(1) Written notice of the hearing shall be given by being placed in the mail, no later than ten (10) days before the hearing but no more than twenty-five (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 (10) days before the hearing but no more than twenty-five (25) days prior to the hearing, 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.
(b) Evidentiary hearing required.
(1) Before making a decision on an appeal or an application for a variance, the Zoning Board of Adjustment shall hold an evidentiary hearing on the appeal. The Board shall also conduct an evidentiary hearing on a special use permit, or petition from the Administrator to revoke a special use permit. This hearing is to gather competent, material, and substantial evidence to establish the facts of the case.
(2) 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.
(3) The hearing shall be open to the public. The applicant, the 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. All testimony must be given under oath.
(4) The official who made the decision, or the person currently occupying that position if the decision-maker is no longer employed by the Town, shall be present at the evidentiary hearing as a witness.
(5) The Board of Adjustment 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.
(6) 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.
(7) The Board may continue the hearing until a subsequent meeting to take additional information. No further notice of a continued hearing need be published unless a period of six weeks or more elapses between hearing dates.
(8) 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.
(9) Decisions. The Board 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, reflect the Board's determination of contested facts and their application to the applicable standards, and be approved by the Board and 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 clerk to the Board or such other office or official as the development regulation specifies. 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. The person required to provide notice shall certify to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.
(Ord. of 6/24/21)