§ 21-315. Hearing procedures for zoning map and text amendments, conditional use permits, variances, appeals, and interpretations.

(1)

Public notice. The following notice requirements shall apply to public, courtesy, and quasi-judicial hearings required by this chapter as indicated below except as provided in section 21-316 and otherwise indicated herein:

a.

Newspaper. In accordance with G.S. 153A-323, zoning map and text amendments shall be advertised in a newspaper of general circulation in the county once a week for two (2) consecutive calendar weeks, with the first advertisement appearing at least ten (10) days but not more than twenty-five (25) days prior to the public hearing date. In computing this advertising period, the date of publication shall not be included, but the day of the hearing shall be included.

b.

Mailed notice. In addition to the newspaper notice required above, the administrator shall provide mailed notice to the owner(s) of the subject property(s), applicant, and all property owners within one hundred (100) feet of the parcel(s) subject to the proposed action for the above referenced requests except only mailed notice to the applicant of a text amendment. The notice must be deposited in the mail at least ten (10) days but not more than twenty-five (25) days prior to the hearing date. If, in the discretion of the administrator, the potential impact of the proposed action or the configuration of land parcels in the area warrants notification of additional property owners beyond this distance, such notice shall be provided.

c.

Signs on property. In addition to the newspaper and mailed notice requirements, signs notifying the public of a scheduled hearing shall be posted at least ten (10) days but not more than twenty-five (25) days prior to the hearing for the above referenced requests, except for text amendments and large scale rezoning as provided in section 21-316. The signs shall be prominently placed on or immediately adjacent to the subject property. When multiple contiguous parcels are included within a request, a posting on each individual parcel is not required, but the county shall post sufficient notices to provide reasonable notice to interested persons.

(2)

Conflict of interest.

a.

Zoning map and text amendments. A member of the board of commissioners shall not vote on any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member. Members of appointed boards providing advice to the board of commissioners shall not vote on recommendations regarding any zoning map or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member.

b.

Quasi-judicial. A member of the board of adjustment or any other body exercising quasi-judicial functions shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. If an objection is raised to a member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.

Vacant positions on the board of commissioners and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the board for calculation of the requisite majority. The same is required of the board of adjustment hearings but only if there are no qualified alternates available to take the place of such members.

(3)

Conduct of hearing. Quasi-judicial, public, and courtesy hearings shall be conducted in the following manner unless modified by the chairman of the respective board:

a.

Staff report;

b.

Applicant or petitioner comments;

c.

Public hearing opened;

d.

Public comment;

e.

Public hearing closed; and

f.

Action.

(4)

Oath for quasi-judicial hearings. The chairman, any member acting as chairman, or clerk to the board is authorized to administer oaths to witnesses in any matter before the board. Any person who, while under oath during a proceeding before the board of commissioners or ZBA, willingly swears falsely is guilty of a Class I misdemeanor.

(5)

Subpoenas for quasi-judicial hearings. The board of commissioners and the ZBA through the chairman, or anyone acting as chairman, may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under G.S. 160A-393(d) may make a written request to the chairman explaining why it is necessary for certain witnesses or evidence to be compelled. The chairman shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The chairman shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chairman may be appealed to the full board. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board or party seeking the subpoena may apply to Superior Court 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.

(6)

Action. Once a public/courtesy hearing is closed, the appropriate decision-making body shall take some form of action during the same meeting. Such action may include continuing the hearing to a later meeting. In cases where the planning board is authorized to make a recommendation, the board shall follow action procedures of article XIV.

In quasi-judicial decisions, the board 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 and is effective upon filing with the clerk to the board of commissioners.

(7)

Vote. A majority vote, excluding vacant seats and disqualified members as indicated in subsection (2), shall be sufficient for the purpose of taking any official action except that variance requests require a four-fifths ( 4/5 ) vote of its members, excluding vacant seats and disqualified members indicated in subsection (2). Quasi-judicial decisions shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to 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 that proper notice has been made.

Each decision is subject to review by the superior court by proceedings in the nature of certiorari consistent with G.S. 160A-393. Any petition for review by superior court shall be filed within the clerk of superior court by the latter of thirty (30) days after the decision of the board of commissioners or ZBA is effective or after a written copy thereof is given. When first class mail is used to deliver notice, three (3) days shall be added to the time to file the petition.

(8)

Omissions. The unintentional failure to give written notice or the unintentional omission of the name of a property owner shall not invalidate the action of the planning board or board of commissioners.

(Ord. of 1-19-98, § XIII; Amend. of 2-20-06(1); Amend. of 11-2-09; Amend. of 10-4-10; Amend. of 3-5-12; Amend. of 4-21-14)