15A NCAC 14A .0411. BOARD'S DECISION

(a)  The Board shall determine whether or to what extent to preempt the ordinance to allow for the establishment or operation in accordance with G.S. 104E‑6.2(d).  In the event that the Board makes all five findings set out in G.S. 104E‑6.2(d) but determines that the provisions of the ordinance in question are severable, the Board may determine that a specific provision, rather than the entire ordinance is preempted.

(b)  The Board's decision shall be made by a majority of the Board members as defined in G.S. 104E‑6.2(a).  To be eligible to vote, a Board member shall be present at the time the vote is taken.

(c)  A decision shall be based exclusively on:

(1)           substantial evidence admissible under G.S. 150B‑29(a) or G.S. 150B‑30 and arguments presented during the hearing and made part of the official record;

(2)           stipulations of fact;

(3)           matters officially noticed; and

(4)           other items in the official record.

(d)  The decision shall fully dispose of all issues required to resolve the case and shall contain:

(1)           an appropriate caption;

(2)           the appearances of the parties;

(3)           a statement of the issues;

(4)           references to the specific provisions of the ordinance at issue;

(5)           findings of fact, with specific reasons given for findings on disputed facts;

(6)           conclusions of law based on the findings of fact and applicable constitution principles, statutes, rules, or regulations;

(7)           a final determination that the challenged ordinance, or specific parts thereof, is preempted with respect to the facility;

(8)           in the discretion of the Board, a memorandum giving reasons for the conclusions of law; and

(9)           a statement that each party has the right to appeal the final decision.

 

History Note:        Authority G.S. 104E‑6.2; 143B‑216.13(14);

Eff. February 1, 1990.