(A) Types of decisions. Depending on the type of decision before them, the Board of Commissioners may be called upon to act with legislative, quasi-judicial, or administrative authority. Refer to the ordinance sections noted below for further explanation of procedure and process. Understand that this chapter addresses only the authority and duties of the Board of Commissioners related to zoning and regulation of development.
(1) Legislative. In considering the adoption, amendment or repeal of an ordinance, Board of Commissioners acts in its legislative capacity. The hearings that accompany these decisions are legislative hearings and seek public input on the proposed policy change. Legislative decisions must proceed in accordance with the requirements of G.S. Chapter 160D, Article 6.
(2) Quasi-judicial. The Board of Commissioners, in considering special use permit applications and site-specific development plans, acts in a quasi-judicial capacity and, accordingly, is required to observe the procedural requirements set forth for the Board of Adjustment. An evidentiary hearing must be conducted to secure competent, material, and substantial evidence to establish the facts of the case. Testimony in an evidentiary hearing is under oath and subject to cross-examination. Quasi-judicial decisions must proceed in accordance with the requirements of G.S. Chapter 160D-406. A majority vote shall be required for the Board of Commissioners to issue a special use permit.
(3) Administrative. Should the Board of Commissioners be assigned administrative approvals of any kind, the applicable procedure shall be G.S. Chapter 160D-403.
(B) Voting. A majority vote, excluding vacant seats and disqualified members, shall be sufficient for the purpose of taking any official action except that variance requests require a four-fifths vote of its members, excluding vacant seats and disqualified members. Vacant positions on the Board of Commissioners 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. For similar state law provisions, refer to G.S. Chapter 160D-406(i).
(C) Excuses from voting.
(1) No member shall be excused from voting except upon matters involving the consideration of the member's own financial interest or official conduct or on matters on which the member is prohibited from voting under G.S. § 14-234 or G.S. § 160D-109. In all other cases except votes taken under G.S. § 160D-601, a failure to vote by a member who is physically present in the council chamber, or who has withdrawn without being excused by a majority vote of the remaining members present, shall be recorded as an affirmative vote. The question of the compensation and allowances of members of the council is not a matter involving a member's own financial interest or official conduct.
(2) Notwithstanding division (C)(1) above of this section, a vote or failure to vote by any member present by means of simultaneous communication in accordance with G.S. § 166A-19.24 shall be treated as if the member were physically present only during the period while simultaneous communication is maintained for that member.
(3) An affirmative vote equal to a majority of all the members of the council not excused from voting on the question in issue, including the mayor's vote in case of an equal division, shall be required to adopt an ordinance, take any action having the effect of an ordinance, authorize or commit the expenditure of public funds, or make, ratify, or authorize any contract on behalf of the city. In addition, no ordinance nor any action having the effect of any ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. § 160D-601 before the ordinance may be adopted, may be finally adopted on the date on which it is introduced except by an affirmative vote equal to or greater than two thirds of all the actual membership of the council, excluding vacant seats and not including the Mayor unless the Mayor has the right to vote on all questions before the CCouncil. For purposes of this section, an ordinance shall be deemed to have been introduced on the date the subject matter is first voted on by the Council. For similar state law provisions, refer to G.S. § 160A-75.
(D) Hiring and maintaining planning staff. The town may appropriate for the support of the staff any funds that it deems necessary. It shall have power to fix reasonable fees for support, administration, and implementation of programs authorized by this chapter and all such fees shall be used for no other purposes. For similar state law provisions, refer to G.S. § 160D-402(d).
(Ord. 23-241, passed 7-18-2023)