(A) Hearing required. Before making a decision on an appeal, application for a variance, application for special use permit, or a petition from the Planning Director or his or her designee to revoke a special use permit, the Board of Adjustment or the City Council, as designated by this chapter, shall hold an evidentiary hearing on the appeal or application. Hearings as required shall be set by the City Council or Board of Adjustment. This hearing is to gather competent, material, and substantial evidence to establish the facts of the case.
(1) Subject to division (2) below, the hearing shall be open to the public. The applicant, the city, 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, including presenting evidence, cross-examining witnesses, objecting to evidence, and making legal arguments. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board.
(2) The Board of Adjustment or City Council 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.
(3) 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 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.
(4) The Hearing Board may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made. No further notice of a continued hearing needs to be published unless a period of six weeks or more elapses between hearing dates.
(B) Notice.
(1) Written notice shall be given by being placed in the mail no later than ten days before the hearing but no more than 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 days before the hearing but no more than 25 days prior to the hearing, the city 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.
(C) Evidence.
(1) All persons who intend to present evidence to the permit-issuing board, shall be sworn. All testimony must be given under oath.
(2) Oaths. The Chair of the Board of Adjustment, City Council, 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.
(3) 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. Whenever practicable, all documentary evidence presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings and shall be kept by the city for at least two years.
(4) Based upon reliable evidence. All findings and conclusions necessary to the issuance or denial by the Board of Adjustment or City Council of the requested appeal, special use permit, or variance shall be based upon reliable evidence.
(5) Subpoenas. The Board of Adjustment or City Council 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, persons with standing under G.S. § 160D-1402 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 appealed to the full Board/Council. If a person fails or refuses to obey a subpoena issued pursuant to this section, the Board of Adjustment, City Council, 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.
(D) Voting. The concurring vote of four-fifths of the Board or Council 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 section, vacant positions on the Board/Council 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/Council for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
(E) Decisions.
(1) The Board of Adjustment or City Council shall determine contested facts and make its decision within a reasonable time. 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 and reflect the Board's determination of contested facts and their application to the applicable standards. The written decision shall be 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 City Clerk.
(2) A quasi-judicial decision is effective upon filing the written decision with the Clerk to the Board. 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.
(Ord. 2021-Z-19, passed 6-22-2021)