1. Before making a quasi-judicial decision on an appeal of an administrative decision, a variance, special use permit, or a petition from the planning staff to revoke a special use permit, the board of adjustment shall hold a hearing on the quasi-judicial matter.
2. Subject to §91(c), the hearing shall be open to the public and all persons interested in the outcome of the appeal or application shall be given an opportunity to present evidence and arguments and ask questions of persons who testify.
3. The board of adjustment 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.
4. The board of adjustment 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 of adjustment is not then present, the hearing shall be continued until the next regular board of adjustment meeting without further advertisement.

Amended March 18, 2013, January 21, 2021

1. The administrator shall give notice of any hearing required by § 91 as follows:
   1. Notice of evidentiary hearings conducted pursuant to Chapter 160D shall be mailed to:
      1. the person or entity whose appeal, application, or request is the subject of the hearing;
      2. to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and
      3. to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing.
   2. In the absence of evidence to the contrary, the Town 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 Town 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.
   3. The notice required by this section shall state the date, time, and place of the hearing, reasonably identify the lot that is the subject of hearing, and give a brief description of the action requested or proposed.

Amended March 18, 2013, January 21, 2021

1. The provisions of this section apply to all hearings for which a notice is required by §91.
2. Oaths. 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 of adjustment determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
3. 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. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board of adjustment. 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 of adjustment. The board of adjustment chair shall rule on any objections and the chair’s rulings may be appealed to the full board of adjustment. 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. Standing. A petition may be filed under this section only by a petitioner who has standing to challenge the decision being appealed. The following persons have standing to file a petition under this section:
   1. 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 board of adjustment whose decision is being appealed.
   2. Any other person who will suffer special damages as the result of the decision being appealed.
   3. 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.
   4. Town board who believes the board of adjustment has made a decision that the town board believes improperly grants a variance from or is otherwise inconsistent with the proper interpretation of a development regulation adopted by the Town Board.
5. Administrative materials. The administrator or staff to the board of adjustment shall transmit to the board of adjustment all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the board of adjustment prior to the hearing if at the same time they are distributed to the board of adjustment 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 of adjustment at the hearing.
6. 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 Town, 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 Town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board of adjustment shall continue the hearing.
7. Subpoenas. The board of adjustment 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 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. 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 of adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board of adjustment 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.
8. Appeals in nature of certiorari (eg. case from the Historic Preservation Commission). When hearing an appeal pursuant to G.S. 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 G.S. 160D-1402(k).
9. Decisions. The board of adjustment shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, the board of adjustment 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 of adjustment 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.
10. Voting. The concurring vote of four-fifths (4/5) of the board of adjustment 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 of adjustment and members who are disqualified from voting on a quasi-judicial matter under G.S. 160D-1-9(d) shall not be considered members of the board of adjustment for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

Amended February 18, 2013, January 21, 2021

1. In response to questions or comments by persons appearing at the hearing or to suggestions or recommendations by the board of adjustment, the applicant may agree to modify his application, including the plans and specifications submitted.
2. Unless such modifications are so substantial or extensive that the board of adjustment cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the board of adjustment may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the planning staff.

Amended January 21, 2021

1. A tape recording shall be made of all hearings required by §90, and such recordings shall be kept for at least two years. Accurate minutes shall also be kept of all such proceedings, but a transcript need not be made.
2. 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 town for at least two years.
   

1. Each quasi-judicial decision shall be reduced to writing, reflect the board of adjustment’s determination of contested facts and their application to the applicable standards and be approved by the board of adjustment and signed by the chair or other duly authorized member of the board of adjustment. A quasi-judicial decision is effective upon filing the written decision with the clerk to the board of adjustment or such other office or official as the development regulation specifies. The decision of the board of adjustment 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. 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.

Amended January 21, 2021

1. Every quasi-judicial decision shall be subject to review by the superior court of Chatham County by proceedings in the nature of certiorari pursuant to G.S. 160D-1402.
2. Appeals shall be filed within the times specified in G.S. 160D-1405(d).
3. A copy of the writ of certiorari shall be served upon the Town of Siler City.
4. Statute of Limitation Quasi-Judicial Decisions. Unless specifically provided otherwise, a petition for review of a quasi-judicial decision shall be filed with the Chatham County clerk of superior court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with G.S. 160D-406(j). When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

Amended January 21, 2021