(A)   Proposed changes or amendments may be initiated by the Board of Aldermen, Planning Board, or by one or more interested parties, except that 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 Town of Wrightsville Beach. 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.

   (B)   An application for any change or amendment shall contain a description and statement of the present and proposed zoning regulation or district boundary to be applied, the names and addresses of the applicant, the owner of the parcel of land involved in the change if different from the applicant, and all adjacent property owners as shown on the New Hanover County tax listing. Twenty copies of such application shall be filed with the UDO Administrator not later than 30 days prior to the Planning Board meeting at which the application is to be considered.

   (C)   When a proposed amendment is initiated by individuals or parties other than the Board of Aldermen or Planning Board, a fee established from time to time by the Board of Aldermen shall be paid to the town for each application for an amendment to cover the necessary administrative costs and advertising.

   (A)   Zoning Map Amendment. In any case where the Planning Board will consider a change in the zoning classification of a parcel of land, notice of the proposed petition or application shall be mailed by first class mail to the owner of the parcel of land involved in the change and all abutting property owners as shown on the New Hanover County tax listing at the addresses listed for such property owners on the New Hanover County tax abstracts, at least ten days and not more than 25 days prior to the Planning Board meeting at which the rezoning is to be considered. When multiple parcels are included in a proposed zoning map amendment, a posting of each individual site is not required, but the town shall post sufficient notices to provide reasonable notice to interested persons. The UDO Administrator or his or her designee shall certify to the Planning Board that such notices have been made.

   (B)   Zoning Text Amendment. In any case where the Planning Board will consider an amendment to the zoning code text, notice of the amendment to be considered shall be published once in a newspaper having general circulation in the area. The notice shall be published not less than ten days before the date of the Planning Board meeting at which the text amendment will be considered.

   (C)   Planning Board Action on Development Regulations and other Legislative Decisions.

      (1)   Zoning Text or Map Amendments. The Planning Board shall advise and comment on whether the proposed text amendment or map amendment is consistent with the adopted comprehensive plan and any other applicable officially adopted plans. The Planning Board shall provide a written recommendation to the Board of Aldermen that addresses plan consistency and other matters as deemed appropriate by the Planning Board, but a comment by the Planning Board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the Board of Aldermen.

      (2)   Comprehensive Plan Updates, Other Ordinances, and Actions. Any development regulation or action required by this Ordinance other than a zoning regulation may be referred to the Planning Board for review and comment.

      (3)   The review and comment of a proposed development ordinance or zoning amendment as required herein and by N.C.G.S. § 160D-604, must be performed by a separate board and not the Board of Aldermen.

   (A)   Notice and Public Hearings - Zoning Text Amendment. No amendment shall be adopted by the Board of Aldermen until after public notice and hearing. Notice of such a public hearing shall be published once a week for two successive calendar weeks in a local newspaper of general circulation in the town. The notice shall be published the first time not less than ten days nor more than 25 days before the date scheduled for the hearing.

   (B)   Notice and Public Hearings - Zoning Map Amendment.

      (1)   In any case where the Board of Aldermen will consider a change in the zoning classification of a parcel of land, notice of the proposed petition or application shall be mailed by first class mail to the owner of that parcel of land and all abutting property owners as shown on the New Hanover County tax listing at the last addresses listed for such property owners on the New Hanover County tax abstracts. For purposes of this Ordinance, properties adjacent to the parcel subject to the map amendment but separated by a street, railroad, or other transportation corridor shall be considered "abutting" and included. The party applying for the change in zoning classification shall submit the following material with the request for rezoning; the application shall be considered incomplete without such material:

         (a)   A list of names of owners, their addresses and the tax parcel numbers of the property involved in the change and the properties immediately adjacent to the property of the request, including the property owners directly opposite the proposed request but separated by a street right-of-way, railroad, or other transportation corridor, as shown on the New Hanover County tax listing.

         (b)   Two sets of plain, letter sized envelopes equal in number to the above list of names shall be furnished by the applicant. Both sets of envelopes are to be unsealed, stamped, and addressed for mailing to the adjacent property owners as shown on the New Hanover County tax listing, and bear the return address of the town.

      (2)   At least ten but no more than 25 days prior to the date of the meeting at which the Board of Aldermen will consider the request for rezoning, the Town Clerk shall mail a letter of notification in the supplied envelopes containing a description of the request and the time, date and location of the public hearing. Additionally, the site proposed for rezoning or an adjacent public right-of-way shall be posted with a notice of the public hearing within the same time period specified for mailed notices of the hearing at which the rezoning is to be considered. When multiple parcels are included in a proposed zoning map amendment, a posting of each individual site is not required, but the town shall post sufficient notices to provide reasonable notice to interested persons. The Town Clerk shall certify to the Board of Aldermen that such notices have been made and such certification shall be deemed conclusive in the absence of fraud.

      (3)   The first class mail notice required under subsections (1) and (2) of this section shall not be required if the zoning map amendment directly affects more than 50 properties, owned by a total of at least 50 different property owners, and the town elects to use the expanded published notice. In this instance, the town may elect to either make the mailed notice provided for in this section or may as an alternative elect to publish a notice of the hearing as required by N.C.G.S. § 160D-601, but provided that each advertisement shall not be less than one-half of a newspaper page in size. The advertisement shall only be effective for property owners who reside in the area of general circulation of the newspaper which publishes the notice. Property owners who reside outside of the newspaper circulation area, according to the address listed on the most recent New Hanover County property tax listing for the affected property, shall be notified according to the provisions of subsections (1) and (2).

      (4)   Reserved.

   (C)   Recommendations of Planning Board. The Board of Aldermen shall not hold its required public hearing or take action on any proposed zoning amendment until it has received a recommendation regarding such Ordinance amendment from the Planning Board. If no recommendation is received from the Planning Board within 30 days from the date when submitted to the Planning Board, the Board of Aldermen may consider the proposal without a recommendation from the Planning Board.

   (D)   Citizen Comments. If any resident or property owner submits a written statement regarding a proposed amendment, modification or repeal to a zoning ordinance to the Town Clerk at least two business days prior to the proposed vote on such change, the Town Clerk shall deliver such written statement to the Board of Aldermen.

   (E)   Statements of Consistency and Reasonableness.

      (1)   Plan Consistency. Prior to adopting or rejecting any zoning text and/or map amendment, the Board of Aldermen shall adopt a statement describing whether its action is consistent or inconsistent with an adopted comprehensive plan. This requirement may also be met by a clear indication in the minutes of the Board of Aldermen that at the time of action on the amendment the Board was aware of and considered the Planning Board's recommendations and any relevant portions of an adopted comprehensive plan. If a zoning map amendment is adopted and the action was deemed inconsistent with the adopted comprehensive plan, the zoning amendment shall have the effect of also amending any future land-use map in the approved comprehensive plan, and no additional request or application for a plan amendment shall be required. However, if the plan is one that requires review and approval subject to N.C.G.S. § 113A-110, (CAMA Plan), the plan amendment shall not be effective until that review and approval is completed. A plan amendment and a zoning amendment may be considered concurrently. A consistency statement is not subject to judicial review.

      (2)   Reasonableness Statement for Rezonings. When adopting or rejecting any petition for a zoning map amendment, a statement analyzing the reasonableness of the proposed rezoning shall be approved by the Board of Alderman. A reasonableness statement may be provided to zoning text amendments. This statement of reasonableness may consider, among other factors:

         (a)   the size, physical conditions, and other attributes of the area proposed to be rezoned;

         (b)   the benefits and detriments to the landowners, the neighbors, and the surrounding community;

         (c)   the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment;

         (d)   why the action taken is in the public interest; and

         (e)   any changed conditions warranting the amendment.

      (3)   Single Statement. The statement of reasonableness and the plan consistency statement may be approved as a single statement.

   (F)   A development regulation shall be adopted by ordinance on the first reading, by a simple majority of the Board of Aldermen.

(Ord. 1695, passed 11-8-12; Am. Ord. 1750, passed 10-13-15; Am. Ord. 1838, passed 3-10-22)

   155.4.2.1 Purpose. The zoning vested right is a right, established pursuant to N.C.G.S. § 160D-108, which precludes any action by a local government that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations. As such, amendments in land development regulations are not applicable or enforceable without the written consent of the owner with regard to any of the following:

   (A)   Buildings or uses of buildings or land for which a development permit application has been submitted and subsequently issued in accordance with N.C.G.S. § 143-755.

   (B)   Subdivisions of land for which a development permit application authorizing the subdivision has been submitted and subsequently issued in accordance with N.C.G.S. § 143-755.

   (C)   A site-specific vesting plan pursuant to N.C.G.S. § 160D-108.1 and subsection 155.4.2.8 below.

   (D)   A multi-phased development pursuant to subsection 155.4.2.4.

   (E)   A vested right established by the terms of a development agreement.

   (A)   Upon issuance of a development permit, the vesting granted for a project is effective upon the filing of the application, for so long as the permit remains valid. Unless otherwise specified, building permits expire after six months and development approvals/permits expire one year after issuance unless work authorized by the permit has substantially commenced.

   (B)   Except where a longer vesting period is provided by this Ordinance, the vesting granted expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of more than 24 consecutive months. The vesting period for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of more than 24 consecutive months.

   (A)   A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development.

   (B)   A right which has been vested as provided for herein remains vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multi-phased development.

   155.4.2.7 Runs with the Land. Vested rights run with the land except for the use of land for outdoor advertising governed by N.C.G.S. § 136-136.1 and N.C.G.S. § 136-131.2 in which case the rights granted by this section run with the owner of the permit issued by the North Carolina Department of Transportation.

   (A)   A site-specific vesting plan consists of a plan submitted to the town in which the applicant requests vesting, describing with reasonable certainty on the plan the type and intensity of use for a specific parcel or parcels of property. For purposes of this section the following plans or approvals qualify as site-specific vesting plans:

      (1)   Preliminary Plat

      (2)   Minor Subdivision

      (3)   Major Subdivision

      (4)   Special Use Permit

   (B)   Establishment of Vested Right. A vested right is established with respect to any property upon the valid approval, or conditional approval, of a site-specific vesting. Such a vested right confers upon the landowner the right to undertake and complete the development and use of the property under the terms and conditions of the site-specific vesting plan, including any amendments thereto.

   (C)   Approval Process for a Site-Specific Vesting Plan.

      (1)   Each site-specific vesting plan shall include the information required by the Board of Aldermen for the underlying type of development application.

      (2)   Each site-specific vesting plan shall provide the notice and hearing required for the underlying type of development application. If the vesting plan is not based on such an approval, a legislative hearing as required by N.C.G.S. § 160D-602 shall be held.

      (3)   The town may approve a site-specific vesting plan upon any terms and conditions that may reasonably be necessary to protect the public health, safety, and welfare.

      (4)   A site-specific vesting plan is deemed approved upon the effective date of the Board of Aldermen's decision approving the plan.

      (5)   An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the local government in the same manner as required for the underlying type of development plan.

   (D)   Duration and Termination of a Vested Right.

      (1)   A vested right for a site-specific vesting plan remains valid for two years. Upon following the same process as required for the original approval, the Board of Aldermen or the Administrator may extend the vesting of a site-specific vesting plan up to three years (with total length of vesting not to exceed five years) upon finding that:

         (a)   The permit has not yet expired;

         (b)   Conditions have not changed so substantially as to warrant a new application; and,

         (c)   The extension is warranted in light of all other relevant circumstances-including, but not limited to the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations.

      (2)   Upon issuance of a building permit, the provisions of N.C.G.S. § 160D-1111 and N.C.G.S. § 160D-1115 apply, except that a permit does not expire and shall not be revoked because of the running of time while a vested right under this section is outstanding.

      (3)   A right vested as provided in this section terminates at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed.

   (E)   Changes and Exceptions.

      (1)   A vested right precludes any zoning action by the town which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved site-specific vesting plan, except under the following conditions outlined in N.C.G.S. § 160D-108.1.

      (2)   The establishment of a vested right does not preclude the application of overlay zoning or other development regulations which impose additional requirements but do not affect the allowable type or intensity of use, or ordinances or regulations which are general in nature and are applicable to all property subject to development regulation by a local government, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise, applicable new regulations become effective upon the expiration or termination of the vesting rights period of the site-specific plan.

      (3)   Notwithstanding any provision of this section, the establishment of a vested right does not preclude, change, or impair the authority of the town to adopt and enforce development regulations governing nonconforming situations or uses.

   (A)   When a development required multiple permits under the development regulations of this Ordinance, the applicant may choose the regulations applicable to the project at the time of their initial permit application. The applicant must submit the subsequent applications within 18 months of approval of the initial permit in order to claim permit choice.

   (B)   If the development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, the development permit applicant shall not be required to await the outcome of the amendment to the rule, map, or ordinance prior to acting on the development permit. The provisions contained in N.C.G.S § 143-755 apply.

   (C)   If a permit application is on hold for six or more consecutive months at the request of the applicant, then permit choice is waived and the rules in effect at the time of resuming consideration of the application apply.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

   155.4.3.1 Temporary Moratorium. The town may adopt temporary moratoria on any town development approval required by law. The duration of any moratorium shall be reasonable in light of the specific conditions that warrant imposition of the moratorium and may not exceed the period of time necessary to correct, modify, or resolve such conditions. Except in cases of imminent and substantial threat to public health or safety, before adopting an ordinance imposing a development moratorium with a duration of 60 days or any shorter period, the governing board shall hold a public hearing and shall publish a notice of the hearing in a newspaper having general circulation in the area not less than seven days before the date set for the hearing. A development moratorium with a duration of 61 days or longer, and any extension of a moratorium so that the total duration is 61 days or longer, is subject to the notice and hearing requirements of N.C.G.S. § 160D-601. Absent an imminent threat to public health or safety, a development moratorium adopted pursuant to this section shall not apply to any project for which a valid building permit issued pursuant to N.C.G.S. § 160D-1108 is outstanding, to any project for which a special use permit application has been accepted as complete, to development set forth in a site-specific vesting plan approved pursuant to N.C.G.S. § 160D-108.1, to development for which substantial expenditures have already been made in good faith reliance on a prior valid development approval, or to preliminary or final subdivision plats that have been accepted for review by the town prior to the call for public hearing to adopt the moratorium. Any preliminary subdivision plat accepted for review by the town prior to the call for public hearing, if subsequently approved, shall be allowed to proceed to final plat approval without being subject to the moratorium.

   (A)   A clear statement of the problems or conditions necessitating the moratorium and what courses of action, alternative to a moratorium, were considered by the town and why those alternative courses of action were not deemed adequate.

   (B)   A clear statement of the development approvals subject to the moratorium and how a moratorium on those approvals will address the problems or conditions leading to imposition of the moratorium.

   (C)   An express date for termination of the moratorium and a statement setting forth why that duration is reasonably necessary to address the problems or conditions leading to imposition of the moratorium.

   (D)   A clear statement of the actions, and the schedule for those actions, proposed to be taken by the town during the duration of the moratorium to address the problems or conditions leading to imposition of the moratorium.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

   (A)   The Board of Adjustment shall hear and decide appeals from decisions of the UDO Administrator concerning the interpretation or administration of development regulations contained in Chapter 155 of the Town Code.

   (B)   Appeals under the provisions of this section may be filed by any person who has standing under N.C.G.S. § 160D-1402(c) or by the town to the Board of Adjustment.

   (C)   Decisions concerning the interpretation or administration of this chapter shall be given in writing to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice, or the notice of determination, shall be delivered by personal delivery, electronic mail, or by first class mail. The town shall assume that if a notice of determination is sent by mail, it is received on the third business day after it is sent.

   (D)   The owner or other party shall have 30 days from receipt of the notice of determination within which to file an appeal with the Town Clerk. Any other person with standing to appeal shall have 30 days from receipt from any source of actual or constructive notice of the decision within which to file an appeal. The notice of appeal shall state the grounds for the appeal.

   (E)   It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign containing the words "Zoning Decision" or "Subdivision Decision" in letters at least six inches high and identifying the means to contact an official for information about the decision is prominently posted on the property that is the subject of the decision, provided the sign remains on the property for at least ten days. Posting of signs is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision. Posting of a sign as described herein is not required but shall be done at the discretion of the landowner or applicant. The town may post such sign.

   (F)   The UDO Administrator shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the action appealed from is taken. The UDO Administrator 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.

   (G)   An appeal of a notice of violation or other enforcement order stays enforcement, including fines, of the action appealed from unless the official who made the decision certifies to the Board of Adjustment 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 shall not be 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 of Adjustment shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the Ordinance shall not stay the further review of an application for permits or permissions to use such property; in these situations the appellant 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.

   (H)   Subject to the provisions of subdivision (G) of this subsection, the Board of Adjustment shall hear and decide the appeal within a reasonable time.

   (I)   The official who made the decision, or his/her successor, shall be present at the hearing as a witness. The appellant shall not be limited at the hearing to matters stated in the 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 shall continue the hearing. 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 shall have all the powers of the official who made the decision.

   (A)   An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application with the UDO Administrator. Applications shall be handled in the same manner as applications for development approvals.

   (B)   A variance may be granted by the Board of Adjustment if it concludes that, by granting the variance, all of the following findings are supported by the Board of Adjustment decision:

      (1)   Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.

      (2)   The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.

      (3)   The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.

      (4)   The requested variance is consistent with the spirit, purpose, and intent of the Ordinance, such that public safety is secured, and substantial justice is achieved.

   (C)   No change in permitted uses may be authorized by a variance.

   (D)   Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

   (E)   The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit, or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of this Ordinance.

   (A)   The Board of Adjustment is authorized to interpret the zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the UDO Administrator, they shall be handled as provided in Section 155.4.4.1.

   (B)   An application for a map interpretation shall be submitted to the Board of Adjustment by filing a standard Town of Wrightsville Beach appeal form with UDO Administrator. The application shall contain sufficient information to enable the Board to make the necessary interpretation.

   (C)   Where uncertainty exists as to the boundaries of districts as shown on the Official Zoning Map, the rules of interpretation as specified in Section 155.1.10 shall be applied. Where uncertainties continue to exist after application of the above rules, appeal may be taken to the Board of Adjustment as provided in Section 155.4.4.1.

   (D)   Interpretations of the location of floodway and floodplain boundary lines may be made by the UDO Administrator as provided in Article 155.11, Part 1.

   (A)   Boards shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, variances, or interpretations.

   (B)   The required application fee and all supporting materials must be received by the UDO Administrator before an application is considered complete and a hearing scheduled.

   (A)   Notice of evidentiary hearings conducted pursuant to subsection 155.4.4.5 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 owning real property, any portion of which is located within 150 feet of the lot that is the subject of the hearing.

   (B)   In the absence of evidence to the contrary, the town may rely on the county tax listings to determine owners of property entitled to be mailed notice.

   (C)   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 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.

   (D)   The Board of Adjustment may continue an evidentiary hearing that has been convened without further advertisement.

   (A)   The provisions of this section apply to all evidentiary hearings for which a notice is required by subsection 155.4.4.6.

   (B)   The applicant, the local government, and any person who would have standing to appeal the decision under N.C.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.

   (C)   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.

   (D)   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 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.

   (E)   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 N.C.G.S. § 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review. All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (necessary findings) shall be based upon competent, material, and substantial evidence.

   (F)   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.

   (G)   The entirety of a quasi-judicial hearing and deliberation shall be conducted in open session.

   (H)   Factual findings must not be based on hearsay evidence which would be inadmissible in a court of law.

   (I)   If a member of the decision-making board has prior or specialized knowledge about a case, that knowledge should be disclosed to the rest of the board and parties at the beginning of the hearing. A member of any board exercising quasi-judicial functions pursuant to this chapter 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 board member's participation at or prior to the hearing or vote on a particular matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection.

   (A)   Appeals. A motion to reverse, affirm, or modify the order, requirement, decision, or determination appealed from shall include a statement of the specific reasons or findings of facts that support the motion. A favorable vote of the majority of the members shall be required to reverse or modify the order, requirement, decision or determination appealed from.

   (B)   Variances.

      (1)   The board must vote affirmatively by a four-fifths majority; see subsection 155.3.13. in granting a variance. Insofar as practicable, the motion shall include a statement of the specific reasons or findings of fact supporting such motion for each of the requirements set forth in subsection 155.4.4.2(B).

      (2)   A motion to deny a variance may be made on the basis that any one or more of the criteria set forth in subsection 155.4.4.2(B) are not satisfied or that the application is incomplete. Insofar as practicable, such a motion shall include a statement of the specific reasons or findings of fact that support it. This motion is adopted as the board's decision if supported by more than one-fifth of the board's membership (excluding vacant seats).

   (C)   A majority of the members shall be required to decide any other quasi-judicial matters.

   (A)   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.

   (B)   Unless such modifications are so substantial or extensive that the Board cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the Board 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.

   (A)   Accurate written minutes shall be kept of all such proceedings.

   (B)   All documentary evidence, including any exhibits, 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.

   (A)   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.

   (B)   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 by personal delivery, or electronic mail, or by first-class mail to the applicant, property owner, and to any other person who has submitted a written request for a copy prior to the date the decision becomes effective. The Director of Planning and Parks or his/her designee shall certify that proper notice has been made.

   (C)   Every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari pursuant to N.C.G.S. § 160D-1402. A petition for review shall be filed with the 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 subsection (B) above. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

(Ord. 1695, passed 11-8-12; Am. Ord. 1727, passed 5-13-14; Am. Ord. 1838, passed 3-10-22)

   (A)   The deadline for which a special use permit application shall be filed with the UDO Administrator is the first business day of the month in the month prior to the meeting at which the application will be heard. Permit application forms shall be provided by the UDO Administrator.

         In the course of evaluating the proposed special use, the Board of Aldermen may request additional information from the applicant. A request for any additional information may stay any further consideration of the application by the Board of Aldermen.

   (B)   No application shall be deemed complete unless it contains or is accompanied by a site plan drawn to scale which complies with the requirements contained in Section 155.5.3 and a fee, in accordance with a fee schedule approved by the Board of Aldermen for the submittal of special use permit applications.

   (C)   One hard copy and one digital copy of an application, and all attachments and maps, for a special use permit shall, be submitted to the UDO Administrator.

   (A)   Special use permits are quasi-judicial decisions approved by a simple majority vote of the Board of Aldermen. Quasi-judicial decisions must be conducted in accordance with subsections 155.4.4.5 through 155.4.4.12. For the purposes of this section, vacant positions on the Board 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 if there are no qualified alternates available to take the place of such members.

   (C)   In approving an application for a special use permit in accordance with the principles, conditions, safeguards, and procedures specified herein, the Board of Aldermen may impose reasonable and appropriate conditions and safeguards upon the approval. Conditions and safeguards imposed under this subsection shall not include requirements for which the local government does not have authority under statute to regulate. In no instance shall any of these conditions be less restrictive than any requirements which would pertain to that particular development found elsewhere in a similar zoning district.

   (D)   The applicant has the burden of producing competent, material and substantial evidence tending to establish the facts and conditions which subsection 155.4.5.4(E) below requires.

   (E)   The Board of Aldermen shall issue a special use permit if it has evaluated an application through a quasi-judicial process and determined that:

      (1)   The establishment, maintenance, or operation of the special use will not be detrimental to or endanger the public health, safety, or general welfare.

      (2)   The special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor diminish or impair property values within the neighborhood.

      (3)   The establishment of the special use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district.

   (F)   Conditions and Guarantees. Prior to the granting of any special use, the Board of Aldermen may require, conditions and restrictions upon the establishment, location, construction, maintenance, and operation of the special use as is deemed necessary for the protection of the public interest and to secure compliance with the standards and requirements specified above. In all cases in which special uses are granted, the Board of Aldermen shall require the applicant or land owner's written consent to the conditions as evidence and guarantee that the conditions required in connection therewith are being and will be complied with.

   When an application involving a quasi-judicial procedure/petition is denied by the Board of Aldermen or Board of Adjustment, reapplication involving the same property, or portions of the same property, may not be submitted unless the petitioner can demonstrate a substantial change in the proposed use, conditions governing the use of the property, or conditions surrounding the property itself.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)

   Any person or persons, jointly or severally, aggrieved by any quasi-judicial decision of the Board of Aldermen or Board of Adjustment, any taxpayer, or any officer, department, board or bureau of the jurisdiction of this Ordinance may, within 30 days after the filing of the decision in the office of said Board, but not thereafter, present to the Clerk of the Superior Court, a petition duly verified setting forth that such decision is illegal, in whole or in part, specifying the ground of illegality, whereupon such decision of said Board shall be subject to review by certiorari as provided by law.

(Ord. 1695, passed 11-8-12; Am. Ord. 1838, passed 3-10-22)