Municipal Education Grant Fayston, Vermont June 9, 2009
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Transcript of Municipal Education Grant Fayston, Vermont June 9, 2009
Municipal Education GrantFayston, Vermont
June 9, 2009
Quasi Judicial HearingsTaking Evidence
And
Site VisitsStephanie Smith, AICPSenior Associate VLCT Municipal Assistance Center
Overview
Municipal Land Use Officials
Quasi Judicial Hearings
Managing Hearings
Site Visits
Dillon’s Rule
“ We have consistently adhered to [ ] Dillon’s Rule that a municipality has only those powers and functions specifically authorized by the legislature, and such additional function as may be incidental, subordinate or necessary to the exercise thereof…”
Petition of Ball Mountain Dam Hydroelectric Project, 154 Vt. 189 (1990).
Municipal Land Municipal Land Use OfficialsUse Officials
Administrative OfficerAdministrative Officer
The Administrative Officer is the face of local land use regulation
ZA is required by law to administer bylaws literally.
Primary functions are: Assisting public and applicants with process; Reviewing applications where AMP approval
is not required (and refer applications to AMP as necessary); and
Initiating enforcement proceedings for violations.
Administrative OfficerAdministrative Officer
The Administrative Officer may provide staff support to the AMP in
hearings and drafting decisions, but does not vote as a member of the AMP
spends more time reading and administering the bylaws than any other officer
may have institutional knowledge regarding how bylaws have been interpreted over time
should coordinate a unified development review program, and
notifies applicants that State permits might be necessary
Administrative OfficerAdministrative Officer AppealsAppeals
All actions (or inactions) are appealable to the AMP.
Role in appeals before the AMP is different from in referrals
Acts more like a party, making arguments and presenting evidence to support his/her decision. Cannot staff deliberations of the AMP or participate in the decision writing process.
Administrative OfficerAdministrative OfficerAdministrative ReviewAdministrative Review
24 V.S.A. § 4464 (c) enables a legislative body to establish procedures under which the Administrative Officer may review and approve new development; and amendments to previously
approved developments that typically required review before the AMP
Administrative OfficerAdministrative OfficerAdministrative ReviewAdministrative Review
The bylaws shall clearly specify the thresholds and conditions under which the administrative officer classifies an application as eligible for administrative review.
The thresholds and conditions shall be structured such that no new development shall be approved that results in a substantial impact under any of the standards set forth in the bylaws.
Appropriate Municipal PanelAppropriate Municipal Panel
Boards designated in local bylaws to conduct development review (DRBs, PCs and ZBAs) are considered “Appropriate Municipal Panels” (AMPs).
AMPs are quasi-judicial bodies because they act like a court when applying local land use regulations to applications.
Appropriate Municipal PanelGround Rules
Personal opinions of individual members must not affect decision-making of board.
Only approve applications that comply with the applicable bylaw or state law.
Only levy conditions authorized by bylaws or state law.
If a project meets the applicable criteria, AMPs must grant the approval.
Appropriate Municipal PanelAppropriate Municipal Panel
Every AMP has two primary functions:
1. To afford applicants and interested persons fair and consistent quasi-judicial hearings.
2. To determine whether a particular application meets the requirements set forth in the applicable provisions of the zoning or subdivision bylaw, or might do so with reasonable conditions.
Meetings & Meetings & HearingsHearings
Two Types of Public Assemblies
1. Meetings
2. Quasi Judicial Hearings
Meetings versus Hearings
• Meetings are different from hearings
• Meetings are LEGISLATIVE General applicability, governed
primarily by Open Meeting Law• Hearings held by an AMP are
QUASI-JUDICIAL Application limited to specific parties Governed by a particular statute
Meetings
When are we meeting?
The AMP is meeting when
acting in a rule making capacity
working on ministerial duties.
Basic Open Meeting Law Requirements
• A meeting occurs when a quorum of a public body convenes to discuss the business of the body or to take action. Minutes Meeting must be publicly noticed Meeting must be open to the public Public must have opportunity to
comment
Basic Open Meeting Law Requirements
Minutes Minutes must be kept and include:
All members of the public body present;
All other active participantsAll motions, proposals, and
resolutions made and their result;Results of any votes, with a record of
individual votes if a roll call is takenMinutes must be available 5 days
after the meeting
Basic Open Meeting Law Requirements
Regular meetings: Meeting schedule (time and place) is set by resolution at organizational meeting. No notice or posting requirements, however good idea to post prominently in town for entire year. 1 V.S.A. § 312(c)(1).
Special meetings: Time, place and purpose must be publicly announced 24 hours before meeting. Posting in three places in town, including the clerk’s office, oral or written notice to board members unless waived and notice to news media upon request. 1 V.S.A § 312(c)(2).
Emergency meetings: No notice required, but some sort of notice should be given as soon as possible. 1 V.S.A. § 312(c)(3).
Quasi-Judicial Hearings
Conducting Effective Quasi-Judicial Hearings A quasi-judicial
proceeding/hearing occurs when an appropriate municipal panel convenes to hear an application for development.
Rules are different, and more strict in quasi-judicial hearings than in meetings.
Conducting Effective Quasi-Judicial Hearings An AMP may
administer oaths and compel the attendance of witnesses
require production of evidence related to any issue under review by the AMP
conduct site visits
MinutesMinutes The AMP is required to keep
minutes and records of its examinations and other official actions of its proceedings in the clerk’s office as a public record.
24 V.S.A. § 4461 (a)
Five Hallmarks of a Quasi-Judicial Hearing
1. Rights of parties are being considered
2. All parties can present evidence3. All parties can cross-examine
witnesses/question evidence4. Written decision5. Appealable
Constitutional Due ProcessConstitutional Due Process
Parties have a property right protected by the 14th Amendment to U.S. Constitution
“. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”
The Essence of Due ProcessThe Essence of Due Process
1. Providing Notice
The government is taking action that may effect your property
2. Having an Opportunity to be Heard proceedings should be free of conflict
of interest, run in an orderly manner, and evidence managed and presented at an open proceeding
Managing Managing HearingsHearings
Managing HearingsManaging Hearings
Role of the Administrative Officer
Role of the Chair
Role of the Parties
Role of the Appropriate Municipal Panel
Role of the Administrative Officer Application Requirements
The actions of the AO can influence the integrity of the development review process Provides critical information that could
effect a potential applicant’s decision or actions
Provides application materials (forms) May make sure an application is complete
and contains all required information Gives insight into the regulatory review
process
First impressions impact the relationship-positively or negatively
Eliminates possible misunderstandings Provide feedback concerning the
adequacy of plans relative to clear standards
Reduces errors leading to a more streamlined process
Reduces uncertainty in the development review process
Role of the Administrative Officer Application Requirements
The application requirements outline what information (evidence) is necessary for the AMP or the ZA to determine if the proposal complies with the bylaws.
Bylaws indicate the information required for a complete submission Fees Forms Studies Plans !!!
Role of the Administrative Officer Application Requirements
The complexity of the bylaw or the review process will expand the basic plan application requirements
A checklist of required information will Provides the necessary information for review No arbitrary or subjective decisions about
required application materials Leads to consistent reviews Self explanatory for those new to the
development review process
Application RequirementsChecklist
The Role of the ChairThe Role of the Chair
The Chair• Runs proceedings consistently
and maintains order.• Administers oaths (if required).• Decides all points of order or
procedure.• Chair enforces the adopted Rules
of Procedure.
The Role of the ChairThe Role of the Chair
The Chair• Reminds the board to disclose potential
conflicts of interest for the record.• Steers clear of history and personalities.• Ask those who believe they meet the
definition of interested person to identify themselves and provide contact information.
• Keeps discussion on topic and relevant.• May notify participants that irrelevant,
immaterial or unduly repetitious evidence may be excluded.
The Role of the ChairThe Role of the ChairOrder of ProceedingOrder of Proceeding
• Request for presentation by applicant
• Board members ask questions• Public presents evidence and
applicant responds• More questions from board • Final comments• Call for close of hearing
The Role of the PartiesThe Role of the Parties
Who are Parties?• Any people who believe that
meet the definition of interested person
• Panel shall keep a written record• Interested person defined in the
24 V.S.A. § 4465 (b)• Those who participate must
receive copy of the decision.
The Role of the PartiesThe Role of the Parties
The Parties Have the right to know and
participate according to specific rules
May present and question evidence
Should (however not required) speak from personal knowledge, experience and observation
Must link testimony to the bylaws
The Role of the Appropriate Municipal Panel
The AMP is both Judge and Jury Focus on
Parties Offered relevant and credible evidence
Bylaws
The Role of the Appropriate Municipal Panel
The AMP is not a board : that makes policy decisions on land
use development that encourages or discourages
development in a town that lets their “feelings” about
development or a particular applicant guide its decision making process
The Role of the Appropriate Municipal Panel Don’t focus on or consider
Personal issues (personalities),
Violation history, Financial hardship and Details provided by parties that have no relationship to standards in your bylaws.
The Role of the Appropriate Municipal Panel
Factual Questions
Who, What, Where, When, Why and How?
Questions must be relevant to the application and the bylaws.
Board shouldn’t answer its own questions
Taking Evidence
“Evidence” is testimony, documents, and tangible objects that prove or disprove the existence of an alleged fact.
Black’s Law Dictionary 8th Edition
“Evidence is substantial if it is relevant and a reasonable person might accept it as adequate to support a conclusion.”
-In re Halnon 174 Vt. 514, 811 A.2d 161 Vt.,2002
Taking Evidence
“Hearsay” is testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and this is therefore dependant on the credibility of someone other than the witness.
Black’s Law Dictionary 8th Edition
Relevant • Does the evidence support a standard
in the bylaw? Credible
• Is there documentation to support the testimony?
• Is the evidence based on personal experience or observation?
• Is the testimony provided by an expert?
Taking Evidence
Managing Evidence
For documentary evidence, (you can) mark each document with: Applicant’s exhibit number Interested person’s exhibit number Name and number of application (other
identifier) You can also document the evidence
received in the decisionFor oral evidence, keep a record of:
Who spoke What was said
Technical Review
The legislative body may establish procedures and standards for requiring an applicant to pay for reasonable costs of an independent technical review of the application.
24 V.S.A.§ 4440 (d)
Technical Review
(C) Technical Review. To assist in its evaluation of an application, the Board may require the submission of an independent technical analysis of one or more aspects of a proposed development, prepared by a qualified professional acceptable to the Board, to be funded by the applicant.
Section 5.2 (6) (C) Fayston’s Bylaws
Technical Review
Technical ReviewNeed assistance in determining the
facts due to: Competing experts or information Complex application for
development Inability to determine whether
standards are met
Deliberations
“[W]eighing, examining and discussing the reasons for and against an act or decision, but expressly excludes the taking of evidence and the arguments of parties.”
1 V.S.A. § 310 (1)
Deliberations
1. Deliberations in public
2. Private deliberative sessiona) To make a decisionb) Consider whether you need
more evidence
Deliberations
Recommendation: Use private deliberative session to reach your decision.
The deliberations of a appropriate municipal panel, held in conjunction with a quasi-judicial hearing, are exempt from the open meeting law. 1V.S.A. 312(e).
Deliberations
Private deliberative session allows a board to reach its decision without undue influence from the parties in the case.
Private deliberations should result in a better-reasoned and more thorough decision.
Deliberations
Unlike other board meetings, deliberations do not have to be noticed or warned.
There is no requirement to take minutes of deliberations.
Judges and juries deliberate in private.
Deliberations
Conducting deliberations via e-mail does not violate the open meeting law.
Written decisions can be drafted and circulated by email for review and comment by board members.
Deliberations
Consider each applicable standard.
Consider the relevant, credible evidence that proves or disproves compliance.
Place conditions on approval when necessary to implement the bylaw.
Decisions
“Decisions shall be issued in writing and shall include a statement of the factual bases on which the appropriate municipal panel has made its conclusions and a statement of the conclusions.”
24 V.S.A. § 4464 (b) (1)
Decisions
Findings of fact are “a determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record.”
Black’s Law Dictionary 8th Edition
Decisions
Avoid making verbal decisions in open session
All conditions may not be included in motion to approve.
Possibly vote to approve and discover the board wants to deny.
A standard is missed and there is no evidence to show compliance.
Decisions
Findings of fact shall be based exclusively on evidence produced during the public hearing.
Findings must explicitly and concisely restate the underlying facts that support the conclusions and decision.
Decisions
Written decisions in quasi judicial proceedings do not need to be adopted in a open meeting.
Site VisitsSite Visits
Site Visits
# 1 Tool Recognized by the courts as an
important function of land use
review.
Refusal of a site visit is not
grounds for denial.
Site Visits
#2 Scheduling
Must be warned
Public must be able to
attend
Site Visits
#3 Not part of Hearing
Any observations from the
site visit must be stated for
the record at the hearing, if
they will be the basis for
making a decision.
Site Visits
#4 Ex parte Communication
Site visits are not the place to
take testimony.
Do not engage in
conversation with interested
persons.
Site Visits
#5 Primary function
Is to put evidence into
context. Where is construction taking
place?
How tall will the buildings be?
SummarySummary
AMPs act like a court and must give interested persons “due process.”
Focus on the bylaws at play and the relevant credible evidence that supports the bylaws.
To use observations obtained during a site state them for the record at the reconvened hearing.
Any further questions?
Suggestions for next time or comments:
Stephanie Smith, [email protected]
For more information:www.vpic.info -Implementation
Manualwww.vlct.org- Resource Library