(a) Quasi-judicial procedures are to be followed in determining appeals of administrative decisions, variances, and special use permits. The following general procedures shall be followed in the handling of these matters. Additional procedures for appeals and variances are found in Section 22-69.1 and special use permits in Section 22-65.
(b) Notice of Hearing: Notice of any evidentiary hearing held in conjunction with an appeal, variance, or special use permit shall be according to the provisions of Section 22-72 for mailed notices, posting of property and electronic postings.
(c) Administrative Materials. The Planning Director or other Planning staff 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 Board members prior to the evidentiary hearing if at the same time they are distributed to the Board a copy is also provided to the applicant and to the landowner if that person is not the applicant. The administrative materials may be in written or electronic form. Objections to the inclusion or exclusion of administrative materials may be made before or during the evidentiary hearing. Rulings on unresolved objections shall be made by the Board at the hearing.
(d) Presentation of Evidence. The applicant, Dare County, and any person who would have standing as established in G.S. 160D-1402 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 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.
(e) Appearance of Official, New Evidence: The Dare County official who made the decision or the person currently occupying that position if the decision maker is no longer employed with Dare County 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 Dare County would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing.
(f) Oaths: The Chair of the Board 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 willfully swears falsely is guilty of a Class 1 misdemeanor.
(g) Subpoenas: The Board 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, Dare County and any persons with standing under G.S. 160D-1402(d) 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 subpoenas 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.
(h) Appeals in Nature of Certiorari: When hearing an appeal pursuant to G.S. 160D-947(e) or other appeals 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(k).
(i) Voting: The concurring vote of 4/5 of the Board shall be necessary to grant a variance. A majority of the Board members shall be required to decide any other quasi-judicial matter including special use permits and 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(g) shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternatives available to take the place of such members.
(j) Decisions: The Board of Adjustment 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. The Board shall determine contested facts and make its decision within a reasonable time. Decisions shall be based upon competent, material, and substantial evidence in the record. Every decision shall be made in writing and reflect the Board's determination of contested facts and their application of applicable standards. This written report shall be approved by the Board and signed by the Chair of the Board or other duly authorized member of the Board. A quasi-judicial decision is effective upon filing of the written decision with the Clerk to the Board of Adjustment The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or be first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy of the decision prior to the date the decision becomes effective. The Clerk to the Board shall certify that proper notice has been made and the certificate shall be deemed conclusive in the absence of fraud.
(k) Judicial Review: 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 within the times specified in G.S. 160D-1405(d).
(Ord. passed 6-21-2021)