(A) Purpose. Persons with interests in property zoned by the Town of Fairmont have the right to appeal decisions of the Zoning Enforcement Officer as the chief administrative official of the town responsible for administration of the zoning ordinance. This section outlines the process for taking such appeal.
(B) Process required. The Board of Adjustment for the town shall follow the quasi-judicial procedures outlined below when hearing and deciding appeals of administrative decisions. Appeal of a decision made pursuant to an erosion and sedimentation control regulation, a stormwater control regulation, or a provision of the housing code shall not be made to the Board of Adjustment unless required by a local government ordinance or code provision. The regulations below apply specifically to the appeals of administrative zoning decisions. For similar state law provisions, refer to G.S. § 160D-405(a).
(1) Standing and filing of appeal. Any person who has standing under G.S. § 160D-1402(c) or the local government may appeal an administrative decision to the Board. The owner or other party has 30 days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. § 160D-403(b) by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service. An appeal is taken by filing with the Town Clerk an application for appeal of an administrative decision on a form approved by the Town Board of Commissioners which specifies the grounds therefore. An application for appeal shall be considered filed when delivered to the office of the Town Clerk, the required filing fee paid, and the date and time of filing entered on the application by the Town Clerk. The Clerk shall forward the complete application to the Zoning Enforcement Officer. For similar state law provisions, refer to G.S. § 160D-405(b) and (d).
(2) Date for hearing. The Town's Board of Adjustment with the Zoning Enforcement Officer shall establish a date for the evidentiary hearing.
(3) Notice of hearing. Notice of evidentiary hearings conducted shall be mailed to:
(a) The person or entity whose appeal, application, or request is the subject of the hearing;
(b) The owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and
(c) The owners of all parcels of land abutting the parcel of land that is the subject of the hearing;
(d) Any other persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the local government may rely on the town tax listing to determine owners of property entitled to mailed notice.
(e) 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 local government 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 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 is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.
For similar state law provisions, refer to G.S. § 160D-406(b).
(4) Distribution of materials. The Zoning Enforcement Officer shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the action appealed from is taken. The Zoning Enforcement Officer 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.
(a) The 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.
(b) The administrative materials shall become a part of the hearing record.
(c) The administrative materials may be provided in written or electronic form.
(d) 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.
For similar state law provisions, refer to G.S. § 160D-406(c).
(5) Zoning Enforcement Officer present at hearing. The Zoning Enforcement Officer shall be present at the hearing.
(6) Continuations of properly advertised hearings. The Board may continue an evidentiary hearing that has been convened without further advertisement.
For similar state law provisions, refer to G.S. § 160D-406(b).
(7) Quorum required for hearing, continuance. If an evidentiary hearing is set for a given date and a quorum of the board is not then present, the hearing shall be continued until the next regular board meeting without further advertisement. For similar state law provisions, refer to G.S. § 160D-406(b).
(8) Presentation of evidence.
(a) Parties in the presentation of evidence. The applicant, the town, and any person who would have standing to appeal the decision under G.S. § 160D-1402(d) shall have the right to participate as a party at the evidentiary hearing.
(b) Other witnesses. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board.
(c) Objections. 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.
(d) Ruling on Objections. 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.
(e) Objections on jurisdiction. Objections based on jurisdictional issues may be raised for the first time on judicial review.
For similar state law provisions, refer to G.S. § 160D-406(d).
(9) Appearance of official/new issues.
(a) Town official must be present. 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.
(b) Content. The appellant shall not be limited at the hearing to matters stated in a notice of appeal.
(c) Continuance. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing.
For similar state law provisions, refer to G.S. § 160D-406(e).
(10) Oaths.
(a) 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.
(b) Violation of oath. 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.
For similar state law provisions, refer to G.S. § 160D-406(f).
(11) Subpoenas.
(a) Who may issue subpoenas. The Board making a quasi-judicial decision under G.S. Chapter 160D through the chair, or in the chair's absence anyone acting as chair, may subpoena witnesses and compel the production of evidence.
(b) Request to be made in writing. To request issuance of a subpoena, the applicant, the town, and any person 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.
(c) Ruling on motions regarding subpoenas. 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.
(d) Failure to obey. If a person fails or refuses to obey a subpoena issued pursuant to this division (11), 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.
For similar state law provisions, refer to G.S. § 160D-406(g).
(12) Decisions. The Board of Adjustment shall determine contested facts and make its decision within a reasonable time.
(a) Appeals. 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.
(b) Power of the Board. The Board shall have all the powers of the official who made the decision.
(c) Basis for decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record.
(d) Decision to be in writing. 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.
(e) When decision is effective. 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.
(f) Delivery. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or by first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy prior to the date the decision becomes effective.
(g) Provide notice. The person required to provide notice shall certify to the town that proper notice has been made and the certificate shall be deemed conclusive in the absence of fraud.
For similar state law provisions, refer to G.S. § 160D-406(j)
(C) Stays.
(1) An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the Board of Adjustment and any subsequent appeal in accordance with G.S. § 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the official who made the decision certifies to the board after notice of appeal has been filed 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 development regulation. In that case, enforcement proceedings are not 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 official a request for an expedited hearing of the appeal, and the Board shall meet to hear the appeal within 15 days after the request is filed.
(2) Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations, the appellant or local government may request and the Board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
For similar state law provisions, refer to G.S. § 160D-405(f).
(D) Alternative dispute resolution. The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The development regulation may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
For similar state law provisions, refer to G.S. § 160D-405(g).
(E) No estoppel. G.S. § 160D-1403.2, limiting a local government's use of the defense of estoppel, applies to proceedings under this section. For similar state law provisions, refer to G.S. § 160D-405(h).
(Ord. 23-241, passed 7-18-2023)