Regional Quasi-judicial TrainingAsheville, North Carolina

February 26, 2010

Bill Duston, AICP

Centralina COG

Charlotte, NC

1

TOPICS TO BE DISCUSSED

• Who holds q-j hearings

• What is a variance? Use variance?

• What are variance findings?

• What is a CUP/SUP?

• What is an appeal?

• What is a BOA interpretation?

• How are q-j hearings advertised?

2

TOPICS TO BE DISCUSSED

• BOA Rules of Procedure

• How are q-j hearings held?

• Conflicts of interest

• Evidence

• Cross Examinations/ Subpoenas

• Staff Attorneys

• Open Meetings Law

3

SO…WHAT REQUIRES A QUASI-JUDICIAL HEARING?

• Variances

• Appeals

• Conditional Use Permits

• Interpretations (more on this later)

• Discretionary decisions based on findings (zoning, UDO, and subdivision!) [SL2009-421]

4

Who Holds a Quasi-Judicial Hearing?

• Boards of Adjustment (always)

• Governing Board (sometimes)

• Planning Board (occasionally)

Processes that require a quasi-judicial hearing should be clearly spelled out in your land use

ordinance. ARE THEY?

5

WHAT’S A VARIANCE? USE VARIANCE?

• Allows you to develop your property in a manner not allowed by the LU Ordinance.

• Prescribed “findings” must EACH be met before variance can be approved

Variances should be issued sparingly!

“Use variances” are illegal in North

Carolina!

• Variances can be approved w/fair and reasonable conditions. Conditions should be mutually agreed upon

6

WHAT’S AN ILLEGAL VARIANCE?

7

1. Allowing for the reduction in the required number of off-street parking spaces from 13 to 11 spaces.

2. Allowing a convenience store in the B-2 district when, according to the Table of Uses, convenience stores are not allowed.

3. Allowing for a 7 foot ground mounted sign when the Code specifies that the maximum height shall be only be 5 feet.

4. Allowing a reduction in the required side yard setback by two feet.

WHAT ARE VARIANCE “FINDINGS”?

North Carolina Courts have said:

Practical Difficulties or Unnecessary Hardship

Spirit of Ordinance is Preserved

Public Safety and Welfare Secured

Substantial Justice Done

What are the findings that are contained in your Ordinance? Do they match what’s on your checklist? Do you have a checklist? Are “findings” in your ROP?

Does your Board take votes on each finding? More on this later.

8

WHAT’S A SPECIAL/CONDITIONAL USE PERMIT?

• Allows you to develop a certain specified use (e.g. shopping center) only after approval body allows it.

• Approval body may attach fair and reasonable conditions to the permit

• Uses subject to CUP/SUP must be spelled out in your code

9

HOW DOES A CUP/SUP DIFFER FROM PARALLEL CONDITIONAL ZONING

CUP/SUP

• For specified uses in code

• Q/J Process

• Fair/reasonable Conditions

• Any other permitted use is also allowed

Parallel Conditional Zoning

• Creates new zoning districts

• Two step process: 1. Rezoning; 2. Issue CUP (q/j)

• Only thing allowed on property is what is approved on the CUP10

HOW DOES PARALLEL CONDITIONAL ZONING DIFFER FROM CONDITIONAL ZONING

Parallel Conditional Zoning

• Creates new zoning districts

• Two step process: 1. Rezoning; 2. Issue CUP (Q/J)

• Only thing allowed on property is what is approved on the CUP

11

Conditional Zoning

• Creates new zoning districts

• One step LEGISLATIVE process, usually with neighbor input

• Only thing allowed on property is what is approved

WHAT’S AN APPEAL?

• If somebody disagrees with the decision of the Administrator, that decision can be appealed to the BOA (within a specified time period). Administrator’s decision CANNOT be overruled by governing board.

• BOA has authority to reverse or affirm, in whole or in part, the decision of the Administrator.

What is the appeal period in your community? Is a period prescribed? Where? Do persons know of the appeal process?

12

WHICH IS AN ALLOWABLE BOA INTERPRETATION?

1. I have two definitions of the term “convenience store”. Which should I use?

2. How should I measure setbacks on an irregularly shaped lot?

3. The GIS maps and the old tax maps don’t match. Which is the correct zoning boundary?

4. A certain use is not listed in the use table. Should I issue them a permit?

13

BOA (and PB!) RULES OF PROCEDURE

A SET OF RULES (ROP) SHOULD BE ADOPTED…AND FOLLOWED. They should address:

When officer elections occur/ roles of the officers

When regular meetings are held/how special meetings occur

How/when alternate members are used

Who makes motions/how votes are taken/who can vote

What happens if quorum is lost midway during hearing

How do you handle cross-examination

ROP should be formally adopted and reviewed annually… and with all new members…When was the last time you looked at them?

14

BOA (and PB!) RULES OF PROCEDURE

Make sure the ROP don’t conflict with the adopted Code…or the General Statutes

If it is in the Code, don’t put it in the ROP

Give them out and explain them to all BOA members

Make sure you (staff) have them at all meetings

MAKE SURE THE RULES (AND CODE) ARE FOLLOWED!

15

• Newspaper Notice?

• Mail Notice (First Class? Certified?)

• Posting of Property? If so, how much information required?

• Posting in Public Meeting Place?

• What does your Code specify? Does it specify?

How is a Q-J Hearing Advertised?

16

Q-J Hearing Overview

1. Application should be complete and submitted on time before case is processed and heard. (DOES IT SAY THAT IN YOUR CODE?)

2. Does Code state deadline for application submittal?

3. Public hearing must be properly advertised

4. People can give evidence…only after they have been sworn in/affirmed to do so.

5. Purpose of hearing is to gather evidence…not to gauge popularity of project.

17

6. BOA/Governing Board MUST make findings that support their decision…good idea to share findings with applicant beforehand

7. Written record of hearing should include written findings…and the facts that support them

8. Always notify applicant of BOA decision and their ability to appeal the BOA decision to Superior Court.

Q-J Hearing Overview

18

1. Hearing opened by Chair; hearing procedures explained by Chair

2. Chair should ask if any member has a conflict or any “relevant evidence or ex-parte conversation” that needs to be shared

3. All persons (including staff) who are to give evidence get sworn in/affirmed

4. Staff should give overview of case

How is a Q-J Hearing Conducted?

What are your

meetings like?

19

8. Persons who are sworn in can be cross-examined by persons with standing!

How is a Q-J Hearing Conducted?

5. Have sign up sheet for persons who want to present evidence

6. Applicant (or agent, attorney) presents his/her case

7. Others who are sworn in can speak. Use sign up sheet, if practical

What are your

meetings like?

How is a Q-J Hearing Conducted?

20

How is a Q-J Hearing Conducted?

9. Hearsay (MORE ON THAT LATER) should not be relied upon… evidence limited to that presented at hearing

10. Chair closes public hearing…or period of public discussion…no further evidence or testimony…only clarifications.

11. BOA deliberates and decides based on substantial, competent and material evidence presented at hearing…NOT HEARSAY!

What are your

meetings like?

How is a Q-J Hearing Conducted?

21

12. Mutually agreeable conditions can be placed on approval. Conditions prescribed by approval body should relate to findings of fact and be land-use related

What are your

meetings like?

How is a Q-J Hearing Conducted?

22

Conflicts of Interest• Situations in which a board member’s duty to act in the public

interest clashes with the member’s inclination to advance his or her personal interest.

• Can be financial conflicts, personal bias, or associations with those affected by a decision.

In NC, you must recuse yourself from a q-j hearing if you have:

1. Fixed opinion on matter

2. Undisclosed ex-parte conversation

3. Close familial business or other associational relationship w/applicant

4. Financial interest in outcome.

23

NOTE: DIFFERENT STANDARDS FOR LEGISLATIVE/ADVISORY DECISIONS

Time Limits on Speakers?

1. Applicant should be given necessary time to prove his/her case. Amount of time depends on nature/ complexity of case

2. Reasonable time to other persons giving evidence

3. No need to hear the same evidence over and over again

4. Consider giving equal time to pro’s and con’s if it looks like it is going to be a lengthy hearing

24

Collecting Evidence

• Maintain a complete record of the hearing• This includes application, supporting materials,

evidence and minutes• Tape of meetings is helpful (but not required)• Do not destroy any items until expiration of

period to appeal• S44 (SL 2009-421)- all to be included and

passed on to the Court along with audio or videotape, if one were produced

Source: David Owens presentation, Mooresville, NC, 12/4/09

25

Competent Evidence

S44 (SL 2009-421)• Applies to q-j decisions made on/after 1/1/10• Does not allow reliance on lay witness testimony on:

1. Use of property that would affect property values

2. Increase in vehicular traffic that would pose a danger to public safety

3. Matters which only expert testimony would generally be relied upon

• Let persons know if what they are saying is perceived as “hearsay”

26

Evidence or Hearsay?• A petition signed by 100 persons…

• “I saw it with my own eyes…”

• “My Mom, who couldn’t be here, is 84, has lived here all her life, and says she can never EVER remember a store being on the property…the applicant is lying!”

• “I just moved here from NY and we sure as he__ would NEVER EVER have allowed that there. You people are nuts if you approve this application.”

• “I live next door, and if you allow it, there goes my property value…”

27

Cross- Examination/Subpoenas

• Any person who has given sworn testimony may be cross-examined by the opposing party or by a person who has standing on the matter

• Can occur at any time during hearing

• Does your community have ROPs that address this?

28

• BOA has authority to subpoena witnesses

Making Decisions• What were the facts heard during the

case?• How do these facts relate to each of

the findings?• Is there enough factual evidence to

support each finding?• Some communities ask applicant to

specifically provide evidence on each finding during their presentation

29

Making Decisions• For BOA, all quasi-judicial decisions (including

individual findings of fact), require 4/5 vote in favor of applicant

• 4/5 vote not mandated (nor allowed) for any q-j decisions made by PB or governing board; simple majority (usually) only required

• Calculate decision based on the number of persons eligible to vote (i.e., this excludes vacancies and recusals if no alternates, but not absences!)

• Vote on each variance/SUP finding

Source: David Owens presentation, Mooresville, NC, 12/4/09

30

How Many Votes Are NeededASSUME: 1. Seven (7) member BOA; 2. No alternates on the BOA.

HOW MANY “YEA” VOTES NEEDED TO RULE IN FAVOR OF THE APPLICANT?

31

All 7members are present and are able to vote

5 6 7

6 members present and able to vote; 1 member is absent

5 6 7

6 members present and able to vote; 1 member recused from voting

5 6 7

6 members appointed and present; seventh position not filled

5 6 7

Do You Need an Attorney

• Having a staff attorney is not required at a q-j hearing…but it is a good idea to have one there

• The BOA attorney represents the BOA…not the City/County! Some communities occasionally use 2 attorneys: one for staff and one for the BOA.

• The attorney should make sure that you are following case law, your Ordinance and your Rules of Procedure.

• Don’t Ask…because the attorney will not tell you how to vote!

32

Open MeetingsNCGS 143-318.9-18

THERE SHOULD BE NO CLOSED DOOR/BACK ROOM PROCEEDINGS!

33

Open Meetings

All q-j meetings are subject to this law in NC An official meeting occurs whenever a majority of members meet (in person or by some electronic means) to:• Conduct a hearing,

• Deliberate,

• Take action, or

• Otherwise transact public business.

48-hour prior notice (AT A MINIMUM) must be given for any NEW public meeting. 34

Q-J Do’s- Make Sure You… Listen to the evidence that is being presented…Is it

reasonable? Does it make sense?

Ask questions…especially if something does not make sense! Don’t take everything at face value

Make findings based on the evidence presented

Make decision based on findings

Give it your best shot…planning is not an “exact” science.

If one of the required findings is found in the negative, do you need to continue on with the deliberations on the other findings?

35

Q-J Don’ts!! Try to Make Sure You Don’t…

Have undisclosed conflicts of Interest

Have undisclosed ex parte communication

Come off as being judgmental and don’t come into the case with your mind already made up

Rely on hearsay

Listen to someone ad nauseam… but what do your Rules say about that?

Act like you are Judge Judy! 36

NEED ADDITIONAL INFORMATION?

Bill Duston, AICP

Planning Director, Centralina Council of Governments

704 348-2709

bduston@centralina.org DON’T FORGET TO REGISTER FOR AICP CM CREDITS FOR THIS CLASS

37