GENERAL ASSEMBLY OF NORTH CAROLINA
SENATE BILL DRS35274-MQ-95 (03/17)
Short Title: Burden of Proof - Planning and Zoning.
Senators Newton, B. Jackson, and Brock (Primary Sponsors).
A BILL TO BE ENTITLED
AN ACT to provide regulatory relief for landowners by establishing a rebuttable presumption of proper land use under the ordinance and by requiring clear and convincing evidence to rebut that presumption in quasi‑judicial proceedings before the board of adjustment.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 160A‑388 reads as rewritten:
"§ 160A‑388. Board of adjustment.
(b1) Appeals. – The board of adjustment shall hear and decide appeals from decisions of administrative officials charged with enforcement of the zoning or unified development ordinance and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to all of the following:
(1) Any person who has standing under G.S. 160A‑393(d) or the city may appeal a decision to the board of adjustment. An appeal is taken by filing a notice of appeal with the city clerk. The notice of appeal shall state the grounds for the appeal.
(2) The official who made the decision shall give written notice 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 shall be delivered by personal delivery, electronic mail, or by first‑class mail.
(3) The owner or other party shall have 30 days from receipt of the written notice within which to file an appeal. 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.
(4) 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 10 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. Absent an ordinance provision to the contrary, posting of signs shall not be required.
(5) The official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the action appealed from is taken. The official 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.
(6) An appeal of a notice of violation or other enforcement order stays enforcement 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 ordinance. 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 permit 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 permit applications or building permits affected by the issue being appealed.
(7) Subject to the provisions of subdivision (6) of this subsection, the board of adjustment shall hear and decide the appeal within a reasonable time.
(8) The official who made the decision 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 city 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.
(9) When hearing an appeal
pursuant to G.S. 160A‑400.9(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. 160A‑393(k).heard de novo. There
shall be a rebuttable presumption that the actual or proposed use of the property
that is the subject of the appeal is valid or consistent with the ordinance.
The presumption of validity or consistency may be rebutted by clear and
convincing evidence to the contrary if presented by the city or the official
who made the decision.
(10) The parties to an appeal that has been made under this subsection may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.
(e) Voting. –
(1) 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 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.
(2) A member of any board exercising quasi‑judicial functions pursuant to this Article 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.
(e2) Quasi‑Judicial Decisions and Judicial Review. –
(1) 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. heard de novo. There shall be a rebuttable presumption
that the actual or proposed use of the property that is the subject of the
appeal is valid or consistent with the ordinance. The presumption of validity
or consistency may be rebutted by clear and convincing evidence to the contrary
if presented by the city or the official who made the decision. 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 clerk to the board or such other office or official as the
ordinance specifies. The decision of the board 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.
(2) Every quasi‑judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160A‑393. 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 subdivision (1) of this subsection. When first‑class mail is used to deliver notice, three days shall be added to the time to file the petition.
SECTION 2. This act is effective when it becomes law and applies to actions taken by the board of adjustment on or after that date.