Quasi Judicial Hearing Procedural Guidelines - Policy Statement 167
POLICY STATEMENT 167
QUASI-JUDICIAL HEARING PROCEDURAL GUIDELINES
Prepared by: Chris Simpson, Town Attorney
Approved by Council:
Effective:
I. Purpose and General Information
II. Who May Appear at the Hearing
III. Prior to the Hearing
IV. Responsibilities of the Mayor/Chair
V. Responsibilities of the Hearing Body
VI. Conduct of the Hearing
VII. Burden of Proof, Testimony, and Evidence
(A) Burden of Proof for Special Use Permits, Subdivision Plan and Site Plan Approvals
(B) Burden of Proof for Variances
(C) Burden of Proof for Appeals
(D) Testimony and Evidence
(E) Lay Versus Expert Testimony
VIII. Conditions of Approval
(A) Conditions Generally
(B) Conditions on Appeals Decisions
IX. Findings of Fact and Conclusions
X. Withdrawal of the Application
XI. Reconsideration/Reopening
I. Purpose and General Information
Quasi-judicial decisions arise in a variety of local government settings. In
During a quasi-judicial hearing, the Hearing Body must hold an evidentiary hearing and make its decision based on the written and oral evidence presented. Unlike legislative decisions (like rezonings), a quasi-judicial decision must be based solely on the evidence presented and cannot be based on opinions of members of the Hearing Body. Put differently, a quasi-judicial decision is one that requires the Hearing Body to find facts and exercise discretion when applying the standards of an ordinance to a specific situation.
This policy is adopted not as binding rules of procedure but to provide flexible guidance for the conduct of quasi-judicial hearings. It is designed to be used in conjunction with Policy 143 (Rules of Procedure for the Cary Town Council) and the ZBOA Rules of Order. This policy is based on NC law, but is not designed to create any additional rights or obligations and does not provide any procedural rights to any person. The failure of Hearing Body or any other person to adhere to this policy shall not affect the validity of any hearing, action taken or decision made. To the extent there is conflict or any discrepancy between these recommended procedures and the NC General Statutes, case law, or Town ordinances (collectively “law”), the law shall prevail.
II. Who May Appear at the Hearing
Both individual applicants and individuals opposed to the application who are aggrieved may represent themselves or be represented by an attorney, and they may have expert witnesses testify for them. All applicants are strongly advised to have an attorney represent them. Applicants that are corporations (‘corporate applicant’) must be represented by an attorney. Engineers, architects, real estate agents, planners and other non-attorneys may only appear as expert witnesses; they may not represent an applicant or those opposed to an application. If a non-corporate applicant desires to have a non-attorney act as his or her representative (and not solely as an expert witness), the applicant should notify the attorney advising the Hearing Body who will then advise the Hearing Body that it must vote on whether to allow the representation. The request may be denied. Therefore, applicants or their attorney should always be present at the hearing.
III. Prior to the Hearing
To the greatest extent practical, all exhibits and evidence to be relied on during the hearing should be submitted electronically with the application or to the Town Clerk (if the hearing is before the Town Council) or the Board Secretary (if the hearing is before the Board of Adjustment) by 5 p.m. on the Tuesday the week before the hearing date (for hearings before the Town Council) and at least fourteen (14) days before the hearing date (for hearings before the Board of Adjustment). The Town Clerk and Board Secretary may designate Town staff members responsible for processing each application (sometimes ‘Staff Representative’) as the person to whom such exhibits should be submitted. Copies should also be provided to any other known party. By receiving exhibits and evidence with the application or no later than the deadlines shown above, the Town is able to post such exhibits with the hearing agenda. Failure to provide evidence or exhibits by the date and time specified shall mean the applicant or other witness is responsible for providing a sufficient number of copies of such exhibits at the hearing and may result in the hearing being continued. If possible, electronic submissions should meet
If prior to the hearing an applicant or a person opposed to an application has questions about the process, he or she may contact the Staff Representative for more information. The person shall not contact any member of the Hearing Body.
Prior to the hearing the Staff Representative, applicant or other person may suggest time limits for testimony and agreement on other procedural issues, and agreement may be reached on such matters. The applicant may also request a continuance prior to the hearing by contacting the Staff Representative.
IV. Responsibilities of the Mayor/Chairperson
The Mayor (if the hearing is before the Town Council) or the Chair of the ZBOA (if the hearing is before that body), shall preside over the hearing. The Mayor/Chair must recognize speakers and members of the Hearing Body before they may be heard. The Mayor/Chair may rule on any objections or requests from participants in the hearing regarding the procedure of the hearing or evidence presented. The Mayor/Chair may rule on the competence (i.e. the admissibility) of evidence with or without an objection from a participant. The Mayor/Chair should allow every speaker to be heard, but may limit and/or cut off evidence or testimony that is irrelevant, repetitive, incompetent, inflammatory, or hearsay. The Mayor/Chair may place reasonable and equitable limitations on the presentation of evidence, arguments, and cross-examination of witnesses so that the matter at hand is heard without undue delay.
The Mayor/Chair may impose additional requirements and take actions as may be necessary or desirable to facilitate the fair and efficient conduct of the hearing and other agenda items. Additional requirements or actions may include requiring witnesses to sign up in advance of the hearing allocating reasonable time for each side to present their testimony and evidence, limiting the overall time for the hearing, and delaying a hearing to a later point in the agenda or continuing the hearing to a later meeting.
V. Responsibilities of the Hearing Body
Members of the Hearing Body must make their decision solely on the written and oral evidence presented and cannot consider information obtained through independent research or undisclosed ex parte communications. Members may, however, view the premises at issue before the hearing so long as at the commencement of the hearing the members disclose the site visit and any facts or information gleaned from the site visit that are relevant to the case. Likewise at the commencement of the hearing, or during the hearing if it only becomes evident then, members must disclose any specialized knowledge they may have that is relevant to the case.
Members of the Hearing Body should refrain from ex parte communications about upcoming or ongoing cases with any parties or other members of the Hearing Body, and at the commencement of the hearing, members must disclose any intentional or inadvertent ex parte communications. Members may seek and receive general, technical information pertaining to the case from Town staff prior to the hearing, but the Town staff should provide the information to all during the hearing before the entire Hearing Body.
VI. Responsibilities of those who Testify
In addition to other responsibilities of the applicant and others who testify (‘witnesses’) , witness shall observe time limits imposed on testifying unless the Mayor/Chair grants additional time for good cause shown. Witnesses shall avoid all hearsay evidence. Hearsay evidence is testimony that the witness does not know of his or her own personal knowledge, including that which someone else told the witness and the use or introduction of signed petitions and letters. Witnesses shall focus their testimony on the applicable criteria. Unless they are a qualified expert, witnesses are not competent to testify about the impact of a proposed land use on the value of nearby property, the danger to public safety resulting from increases in traffic or other matters that require special training or expertise like the level of noise that will be generated. Non-expert witnesses are competent to testify about facts known to them and their opinion so long as it is not about the impact on values, the danger to public safety from increases in traffic and other matters that require special training or expertise.
VII. Conduct of the Hearing
This section discusses the general format for a quasi-judicial hearing. Section
(a) All persons, including Town staff, who intend to present evidence must be sworn in.
(b) The Mayor/Chair shall call the case as advertised on the agenda. The Mayor/Chair may state something along the lines of:
This matter requires this body to conduct a quasi-judicial hearing, which means the body must find facts and base its decision upon the application of the ordinance standards/criteria and the competent, substantial and material evidence received during this hearing. All testimony must be competent and not repetitious. Speculative opinions and general expressions of fear of potential increases in crime, traffic or impacts on property values do not constitute competent evidence.
(c) If the applicant is to be represented by anyone other than a licensed attorney, the applicant shall request the consent of the Hearing Body for such representation. See, Section II, above.
(d) Members of the Hearing Body should disclose the following:
(1) Any site visits,
(2) Ex parte communications,
(3) Specialized knowledge they have relevant to the case,
(4) Whether they have a fixed opinion that is not susceptible to change based on what they learn at the hearing;
(5) Whether they have a close familial, business or other relationship with the applicant or other affected person;
(6) Whether they have a financial interest in the outcome of the case; and
(7) Any other information relevant to determining whether a conflict of interest exists. If necessary, the Hearing Body will vote on recusal of members at this time. A member shall not participate in the hearing if the member has a fixed opinion prior to the hearing that is not susceptible to change; has engaged in undisclosed ex parte communications; has a close familial, business or other associational relationship with the applicant or an affected person; or has a financial interest in the outcome of the matter.
(e) The applicant or other affected person (having been sworn in) shall present any objections they may have to a member’s participation. If an objection is made to the participation of a member based on personal bias or other ground for disqualification, the Hearing Body shall determine the matter as part of the record.
(f) The Staff Representative should present the staff report.
(g) Evidence and the appropriate number of exhibits that were not provided by the deadline in advance of the hearing shall be given to the Clerk/Board Secretary, and any opposing party. The Clerk/Board Secretary shall number the exhibits if they have not already been numbered and shall distribute to Hearing Body. If an exhibit is presented it becomes part of the record and will not be returned.
(h) If all parties are represented by attorneys, the applicant, followed by any opposing party, may present a brief opening statement.
(i) The applicant shall present the arguments and evidence in support of his/her case or application. The applicant shall address applicable approval criteria. Members of the Hearing Body or any attorney representing the Hearing Body or the Town may ask questions for clarification. If all parties are represented by attorneys, opposing parties may ask questions of (cross-examine) the applicant (if the applicant testifies) or supporting witnesses at this time. If those opposed to the applicant are not represented by attorneys, the Mayor/Chair may prefer to delay cross-examination until all sides present their arguments and evidence.
(j) Persons opposed to granting the application shall present the arguments and evidence against the application based on the applicable approval criteria. Members of the Hearing Body or any attorney representing the Hearing Body or the Town may ask questions for clarification. If all parties are represented by attorneys, the applicant may cross-examine the speaker or opposing witnesses at this time.
(k) If cross-examination was not done at the conclusion of each side’s case, then both sides will be permitted to cross examine previous witnesses. Those who oppose the application should cross examine the applicant (if the applicant testified) and the applicant’s supporting witnesses first. Then the applicant may cross examine those witnesses who spoke in opposition to the application. Both sides will be permitted to present rebuttals to opposing testimony. Both sides may, as necessary, object to incompetent evidence and testimony (such as improper lay opinion testimony and hearsay) offered by other witnesses. The Mayor/Chair may rule on such objection or take it under advisement.
(l) After all evidence has been presented, the Mayor/Chair may ask the parties if there is additional relevant information that has not been presented that would make a continuance in order. The Mayor/Chair will entertain objections and rule on the admissibility of the evidence or exhibit.
(m) Unless the Mayor/Chair continues the public hearing to a publicly stated date, time and location, the Mayor/Chair shall close the period for public discussion. The Hearing Body shall publicly discuss the case without further general input from the public. Members of the Hearing Body, however, may seek clarification or ask questions of persons previously sworn on any piece of evidence presented. Cross-examination and rebuttals may be made only on new evidence presented. The Hearing shall be closed after Hearing Body deliberations are complete.
(n) Unless the public hearing has been continued, the Hearing Body shall render a decision on the matter, or, if it so chooses, recess the case to a publicly stated date, time and location, which should generally be the next regular meeting of that body. The Town Council may approve an application by vote of a majority of the members. The Board of Adjustment may approve variances and reverse or modify a staff decision only by a vote of four-fifths of the members of the board (excluding vacant positions and members who are disqualified from voting, if there are no qualified alternates available).
(o) The Hearing Body may attach conditions to the approval of any application in accordance with LDO § 3.1.8, or other applicable authority. Note, however, the Hearing Body’s authority to attach conditions as part of an appeal is limited (See Section VIII).
(p) A written decision must be approved for every quasi-judicial application, either by entering the decision at the end of the hearing or at a subsequent meeting of the Hearing Body, which shall generally be the next scheduled meeting. As part of the written decision, the Hearing Body must make findings of fact and conclusions as to applicable standards and any conditions (See Section IX). In cases where the findings of fact and conclusions are sufficiently complex, the Mayor or Chair may direct the attorney representing the Hearing Body to draft a written decision for approval by the Hearing Body at its next regularly scheduled meeting, which approval may be on a consent agenda.
VIII. Burden of Proof, Testimony, and Evidence
(A) Burden of Proof for Special Use Permits and Subdivision/ Site Plan Approvals: The applicant has the burden of producing sufficient substantial, competent and material evidence for the Hearing Body to conclude that the standards of the applicable ordinance(s) have been met. If the applicant shows they meet all the standards of the LDO, the applicant is entitled to approval unless those opposed to the application produce substantial, competent and material evidence that one or more of the standards have not been met. If the applicant fails to put forth sufficient evidence to show they meet all the criteria, then the Hearing Body must deny the application. For example, for a special use, the applicant must establish that the application meets the specific criteria for the specific use proposed and that it meets all of the general criteria of LDO § 3.8.3. For a site/subdivision plans, the applicant must establish that the application meets the criteria of LDO § 3.9.2(I).
(B) Burden of Proof for Variances: The applicant has the burden of producing sufficient substantial, competent and material evidence for the Hearing Body to conclude that the standards of the applicable ordinance(s) have been met. The
(C) Burden of Proof for Appeals: Appeals of administrative decisions are only quasi-judicial decisions in the limited sense that they require the same due process protections as are given in other quasi-judicial proceedings (for example, the rights to present evidence and cross examine). Unlike other quasi-judicial decisions, however, an appeal of an administrative decision presents a question of law, which the Hearing Body considers de novo. “De novo” means the Hearing Body is not bound by the ordinance interpretation of Town staff. Instead, the Hearing Body must seek to interpret the ordinance so as to give effect to the Town Council’s intent when it adopted the ordinance. Pursuant to § 3.21.4 of the LDO, the Hearing Body shall not reverse or modify an administrative decision unless it finds that the administrative officer erred in the application or interpretation of the terms of the LDO, Town Code, or related policies adopted by the Town. The other common rules of statutory construction apply as well.
In appeals, neither party has the burden of proof, and neither party has any right to any affirmative decision.
(D) Testimony and Evidence: All testimony, including from Town staff, must be sworn testimony. All persons wishing to speak will be given a reasonable time in which to be heard; however, groups are encouraged to select a spokesperson to speak for the group in order to avoid repetitive testimony. Inflammatory, irrelevant, repetitive and incompetent testimony and hearsay is not permitted.
The Hearing Body’s decision must be based on substantial, competent, and material evidence. Substantial evidence is “that which a reasonable mind would regard as sufficiently supporting a specific result.” Competent evidence is evidence that can be subjected to cross-examination, inspection, explanation and rebuttal. Courts often refer to competent evidence as being “admissible.” Material evidence is evidence that is relevant to the issue being considered by the Hearing Body.
(E) Lay Versus Expert Testimony: As a general rule, anyone with knowledge material (i.e. relevant) to the case may provide factual information, but only experts may provide opinion testimony. Except as provided in G.S. § 160A-393(k)(3), lay witnesses may provide opinion testimony, but this testimony is generally deemed incompetent unless it is corroborated by competent evidence. Even expert testimony must be competent (i.e. the expert has qualifications relevant to the issue) and material before the Hearing Body can rely on it.
G.S. § 160A-393(k)(3) now requires expert testimony in three cases:
a. The use of property in a particular way would affect the value of other property;
b. The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety; and,
c. other matters about which only expert testimony would generally be admissible under the rules of evidence, such as the level of noise that will be generated.
IX. Conditions of Approval
(A) Conditions Generally: The Hearing Body may attach conditions to approvals of special use permits, subdivision and site plans, and variances, and such other approvals as law may permit. For special use permits and subdivision and site plans, conditions must be reasonable and limited to those that require changes in a project “that are necessary to bring the project into compliance with the standards” of the applicable statutes and ordinances. For variances, conditions must be “reasonably related to the condition or circumstance that gives rise to the need for a variance.”
Conditions cannot require the applicant to take action with regard to a piece of property that is not a part of the application being considered, and conditions cannot require the alteration of a special use permit previously issued to a third party.
(B) Conditions on Appeals Decisions: Unlike conditions on special use permits, subdivision plans, site plans, and variances, the Hearing Body’s authority in an appeal is limited to reversing or affirming, wholly or partly, or modifying the staff decision. Moreover, the Hearing Body only has only the powers of the officer from whom the appeal is taken. An appeal of an administrative decision cannot be used to impose conditions or vary the ordinance.
X. Findings of Fact and Conclusions
To either approve or deny an application, the Hearing Body must make findings of facts and conclusions as to applicable standards. The findings of fact are a summation of the facts presented that the members of the Hearing Body think are relevant to the case. The Hearing Body may consider proposed findings of fact offered by the applicant or staff. Conclusions as to standards are the application of the facts to any specific standards for the particular use and the general standards contained in LDO § 3.8.3 for special uses, § 3.9.2(I) for subdivision plans and site plans, and § 3.20.5 for variances. For approvals or denials of these types of applications, the Hearing Body should make conclusions as to each applicable standard as appropriate. There are no specific LDO standards that apply to the appeal of an administrative decision; instead, the Hearing Body should make findings of fact and conclusions that are relevant to the specific ordinance that is at issue in the appeal.
Findings of fact must also be made to support conditions attached to a special use permit or variance.
There is no fixed method for making findings of fact and conclusions as to standards, but the following offers one approach: The Hearing Body begins with a motion to find that the application is or is not complete. If the Hearing Body finds that the application is not complete, it should state what items are missing. Unlike an application that has been denied on its merits, an application denied for incompleteness could be submitted again and would not be barred because it was already decided (res judicata). See, Section XI, “Reconsideration/Reopening”.
Assuming the application is found to be complete, the Hearing Body should then address each of the applicable criteria. For each criterion appropriate findings of fact and conclusions should be made. If, however, a member of the Hearing Body believes an application fails because it does meet any one or more of the applicable criteria, he or she may move to deny the application on that basis alone. If the Hearing Body approves such a motion, it should make findings of fact and conclusions to support that decision. Even if the Hearing Body denies an application because it fails to meet one or two criteria, the better practice is to make findings of fact and conclusions as to all standards anyway, so the record is clear in the event the decision is appealed.
Because the Town Council must approve special use permits, subdivision plans and site plans by a majority vote and because the LDO requires that all ordinance criteria be satisfied to grant an application, any motion to approve an application that does not get a majority vote effectively means the application has been denied. Even if an application is effectively denied, however, the better practice is to approve a formal motion denying an application and then make findings of fact and conclusions to support that decision. The same applies to the Board of Adjustment, which must approve actions by a four-fifths majority.
In contrast, a motion to deny that fails does not mean that an application has been effectively approved. An application can only be approved on an affirmative vote, and should include findings of fact and conclusions as to each applicable standard to support the application approval.
XI. Withdrawal of the Application
An application or appeal will be considered to have been withdrawn under the following circumstances:
(1) The applicant submits a written request to withdraw the application or appeal;
(2) The property owner, if different than the applicant, submits a notarized request to withdraw the application or appeal;
(3) The Hearing Body requests the applicant to furnish additional information within a specified period of time, and such information is not furnished by the applicant within the time period allowed;
(4) Without prior notification to the Mayor/Chair or Clerk/Board Secretary, the applicant does not appear at the scheduled hearing to testify regarding the merits of the application; or
(5) The applicant appears at the scheduled hearing and requests that the application be withdrawn.
XII. Reconsideration/Reopening
Unless there is a significant change in circumstances, substantive decisions on the merits of a request cannot be reconsidered and decided cases cannot be reopened following the approval of a written decision. If there has been a significant change in circumstances, the case may be submitted as a new case under the zoning ordinance.