Board shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances, or for any other quasi-judicial decision.
(A) Notice of Hearing. 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 this Chapter. In the absence of evidence to the contrary, the Village 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 (10) days, but not more than twenty-five (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.
(B) Administrative Materials. Staff to the board shall transmit to the board 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.
(C) Presentation of Evidence. The applicant, the local government, and any person who would have standing to appeal the decision under Section 4.1.3 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. 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 NCGS § 160D-1402.
(D) Appearance of Official New Issues. 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 shall continue the hearing.
(E) 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 determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
(F) Subpoenas. The board making a quasi-judicial decision 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 NCGS § 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.
(G) Appeals in Nature of Certiorari. When hearing an appeal pursuant to NCGS § 160D-947(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below, and the scope of review shall be as provided in NCGS § 160D-1402(j).
(H) 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 NCGS § 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.
(I) 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.
(J) Judicial Review. Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to NCGS § 160D-1402. Appeals shall be filed within the times specified in NCGS § 160D-1405(d).
(Ord. 21-12, passed 07-27-2021)
The procedures and requirements set forth in this Section shall apply to all legislative public hearings regarding text amendments, the rezoning of property to a conditional district, general use zoning district, overlay zoning district, general concept plans for major site plan approvals and major subdivision preliminary plats;
(A) (1) When the Village Planner has determined that an application is complete and that a public hearing is required by this Ordinance, the Village Planner shall schedule a date, time, and place for a public hearing before the Planning and Zoning Board;
(2) Mailed notice of the hearing for conditional zoning, map amendments, general concept plans for major site plans or major subdivision preliminary plats before the Planning and Zoning Board shall be deposited in the mail at least ten (10) days, but not more than twenty-five (25) days, prior to the date of the hearing.
(B) Any person may appear at the public hearing before the Planning and Zoning Board to speak in explanation or rebuttal, either individually or as a representative of an organization, upon receiving proper recognition from the chairperson of the body conducting the hearing;
(C) Each person who appears at a legislative public hearing shall identify himself or herself and his or her address and, if appearing on behalf of an organization, shall state the name and mailing address of the organization. Anyone representing an organization shall present written evidence of his or her authority to speak on behalf of the organization in regard to the matter under consideration, unless the chairperson waives this requirement;
(D) The Planning and Zoning Board shall provide for review and comment in writing to Village Council. If no written report is received within thirty (30) days of referral, Village Council may act on any map and text amendments without the planning board report;
(E) For map and text amendments, the Planning Board shall advise and comment on whether the proposed action is consistent with the adopted comprehensive plan and any other officially adopted plan;
(F) Village Council shall conduct a legislative hearing for map and text amendments. Prior to the hearing, a notice of the hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published the first time not less than ten (10) days nor more than twenty-five (25) days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included;
(G) For map amendments, the owners of affected parcels of land the owners of all parcels of land abutting that parcel of land shall be mailed a notice of the hearing by first-class mail at the last addresses listed for such owners on the Moore County Tax Registry. Properties are considered abutting even if separated by a street, railroad or other transportation corridor. The notice shall be deposited in the mail not less than ten (10) days nor more than twenty-five (25) days before the hearing before the Council’s legislative hearing;
(H) In lieu of mailed notice, the Village may use an optional expanded published notice for large-scale map amendments as provided for in NCGS § 160D-602(b) if the change in zoning involves more than fifty (50) properties owned by at least fifty (50) different property owners;
(I) When a map amendment is proposed, a prominent notice of the hearing shall be posted on the site or adjacent right-of-way not less than ten (10) days nor more than (25) days before the hearing;
(J) No amendment to zoning regulations or a zoning map that down-zones property shall be initiated nor is it enforceable without the written consent of all property owners whose property is the subject of the down-zoning amendment, unless the down-zoning amendment is initiated by the local government. For purposes of this section, "down-zoning" means a zoning ordinance that affects an area of land in one of the following ways:
(1) By decreasing the development density of the land to be less dense than was allowed under its previous usage.
(2) By reducing the permitted uses of the land that are specified in a zoning ordinance or land development regulation to fewer uses than were allowed under its previous usage.
(K) When adopting or rejecting a text or map amendment, Village Council shall approve a statement describing if its action is consistent or inconsistent with the adopted comprehensive plan. If a zoning map amendment is approved that is inconsistent with the adopted plan, the zoning amendment shall have the effect of also amending the future land use map. In addition, Council shall adopt a statement analyzing the reasonableness of the proposed amendment;
(L) At any time upon reasonable request, any person may examine the application and materials submitted in support of, or in opposition to, an application for approval under this Chapter. The Village Planner shall make copies of such materials available at cost as per the Village adopted fee schedule.
(Ord. 14-35, passed 09-24-2014; Ord. 21-12, passed 07-27-2021)
The following persons have standing in a quasi-judicial proceeding.
(A) Any person possessing any of the following criteria:
(1) An ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the property that is the subject of the decision being appealed, or an interest created by easement, restriction, or covenant in the property that is the subject of the decision being appealed.
(2) An option or contract to purchase the property that is the subject of the decision being appealed.
(3) An applicant before the decision-making board whose decision is being appealed.
(B) Any other person who will suffer special damages as the result of the decision being appealed.
(C) An incorporated or unincorporated association to which owners or lessees of property in a designated area belong by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster the interest of the particular neighborhood or local area, so long as at least one of the members of the association would have standing as an individual to challenge the decision being appealed, and the association was not created in response to the particular development or issue that is the subject of the appeal.
(D) Village Council when a decision-making board has made a decision that Council believes improperly grants a variance from or is otherwise inconsistent with the proper interpretation of a development regulation adopted by the governing board.
(Ord. 21-12, passed 07-27-2021)
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