North Carolina § 160D-405 - Appeals of administrative decisions.

§ 160D-405. Appeals of administrative decisions.

Appeals. - Except as provided in G.S. 160D-1403.1, appeals of administrative decisions made by the staff under this Chapter shall be made to the board of adjustment unless a different board is provided or authorized otherwise by statute or an ordinance adopted pursuant to this Chapter. If this function of the board of adjustment is assigned to any other board pursuant to G.S. 160D-302(b), that board shall comply with all of the procedures and processes applicable to a board of adjustment hearing appeals. Appeal of a decision made pursuant to an erosion and sedimentation control regulation, a stormwater control regulation, or a provision of the housing code shall not be made to the board of adjustment unless required by a local government ordinance or code provision. Standing. - Any person who has standing under G.S. 160D-1402(c) or the local government may appeal an administrative decision to the board. An appeal is taken by filing a notice of appeal with the local government clerk or such other local government official as designated by ordinance. The notice of appeal shall state the grounds for the appeal. Repealed by Session Laws 2020-25, s. 10, effective June 19, 2020. Time to Appeal. - The owner or other party has 30 days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. 160D-403(b) by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service. Record of Decision. - The official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the decision 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. Stays. - An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the board of adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the official who made the decision certifies to the board 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 are not 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 shall meet to hear the appeal within 15 days after the request is filed. Alternative Dispute Resolution. - The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The development regulation may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution. No Estoppel. - G.S. 160D-1403.2, limiting a local government's use of the defense of estoppel, applies to proceedings under this section. Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations, the appellant or local government 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. History (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 10, 50(b), 51(a), (b), (d).) Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause. Session Laws 2020-25, s. 50(b), provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act." Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of: "(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or "(2) July 1, 2021." Effect of Amendments. - Session Laws 2020-25, s. 10, effective June 19, 2020, substituted "G.S. 160D-1403.1" for "subsection (c) of this section" in subsection (a); deleted subsection (c), which read: "Judicial Challenge. - A person with standing may bring a separate and original civil action to challenge the constitutionality of an ordinance or development regulation, or whether the ordinance or development regulation is ultra vires, preempted, or otherwise in excess of statutory authority, without filing an appeal under subsection (a) of this section."; in subsection (f), added "during the pendency of the appeal to the board of adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom" in the first paragraph, substituted "Notwithstanding any other provision of this section" for "Notwithstanding the foregoing" in the second paragraph, and made minor stylistic changes; and added subsection (h).