11.8.23 BOA Agenda Packet - Laserfiche WebLink

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DRAFT 3 1 based upon its conformance with those different departments or divisions of criteria, and the applicant has held a 2 neighborhood information meeting and met all the requirements laid out in the UDO or indicated that they will not do so 3 for a justified reason, the evidentiary hearing before the Board of Adjustment is held which where we are this evening. 4 The Board of Adjustment makes a determination based on the findings of fact and more on that a little bit later. The 5 Board of Adjustment and the Special Use Permit process are defined in the general statute by the State of North 6 Carolina. They can all be found in 160D and varying sections. Critically, as Chair Meyers has already identified, this is 7 a quasi-judicial process, as opposed to the legislative process of zoning case, for example. The Board of Adjustment 8 almost exclusively consider matters in a quasi-judicial matter unless it's an administrative process or providing an 9 update to the Board of Commissioners. Your duties are to hear and decide about matters upon which it's required to 10 pass under any statute or development regulation adopted under state law or under a local ordinance. In the case of 11 Orange County, Special Use Permits have been assigned to the Board of Adjustment. Under state law, variances are 12 assigned to the Board of Adjustment. Quasi-judicial role of the Board of Adjustment is to receive evidence entered into 13 the record pertaining to the case and hear qualified testimony from parties to establish legal standing, including the 14 applicant's staff and the public deemed to have legal standing, review the evidence and testimony, deliberate materials 15 and make a determination based on the Board of Adjustment's finding of fact. There are three key findings of fact or 16 general findings of fact beyond the specific findings of fact with regard to performance and consistency in your packet 17 and they are with regard to affecting a neighboring property, a welfare and safety finding of fact, and a consistency 18 finding of fact with the county's adopted plans, and general consistency with the County's plans. In addition to approval 19 or denial of a Special Use Permit request, the approval can be a general approval or an approval with reasonable 20 conditions. 160D establishes the law in the State of North Carolina with regards to standing and lays out the five 21 different parties that may qualify for a legal standing to speak at such. That is the person of legal interest in the subject 22 property. That would be the property owner or someone that has an option on the property or perhaps, another legal 23 relationship to the property, an heir or dependent heir. The applicant, the county governing the property, in this case, a 24 person who will suffer special damages as a result of the decision and an association organized to promote the interest 25 of a particular area, such as a HOA, so long as at least one member would have standing as an individual and the 26 association was not created reactively in response to a Special Use Permit. Furthermore, our local ordinance,the 27 Orange County Unified Development Ordinance, lays out the nature of proceedings which you Board Members have in 28 your packet and unless there's any questions from the Board regarding the general administrative process, process of 29 Special Use Permits and quasi-judicial matters, I'll turn it back to you, Mr. Chair, with request to read the nature of the 30 proceedings directly from the UDO. 31 32 Leon Meyers: This is from the UDO Section 2.7.7 and it describes the nature of the proceedings for a Special Use 33 Permit hearing. A review of Special Use Permit applications shall be conducted during an evidentiary hearing, that's 34 where we are tonight. The review of the Special Use Permit application is a quasi-judicial process where the Board of 35 Adjustment acts much like a panel of judges. The Board hears factual evidence and sworn testimony presented at the 36 evidentiary hearing and then makes findings of fact supported by competent substantial and material evidence and I'll 37 just reserve that really is a significant difference between this type of hearing and a zoning hearing where opinion is 38 really what this Board can consider for evidence is competent and material and substantial evidence that a witness 39 knows to be fact. The chair or presiding officer at the hearing shall swear all parties intending to present evidence or 40 testimony during the evidentiary hearing and will do that in a few minutes. The applicant, Orange County staff or any 41 person who would have standing to appeal the decision under statute shall have the right to participate as a party in the 42 evidentiary hearing. The chair or presiding officer may take whatever action is necessary to limit testimony to the 43 presentation of new factual evidence that is material to the application to ensure fair and orderly proceedings and to 44 otherwise promote the efficient and effective gathering of evidence and those actions to limit testimony could include 45 barring presentation of obvious hearsay evidence, barring presentation of non-expert opinion, interrupting digressions 46 into immaterial testimony, interrupting repetitive testimony, reasonably limiting the time allotted each witness or cross 47 examination, providing for the selection of a spokespersons to represent groups or persons with common interests, 48 interrupting personal attacks or ordering into disorderly conduct. Where the Board finds compliance with the general 49 standards, the specific rules governing a specific use and that the use complies with all required regulations and 50 standards, the application must be approved unless the Board shall also find, in some specific manner, that the use will