POLICY STATEMENT 167

QUASI-JUDICIAL HEARING PROCEDURAL GUIDELINES

Prepared by: Chris Simpson, Town Attorney

Supersedes:  5/22/2014

Approved by Council: 10/30/2014

Effective: 10/30/2014 

1. Purpose and General Information
2. Who May Appear at the Hearing
3. Prior to the Hearing
4. Responsibilities of the Presider
5. Responsibilities of the Hearing Body
6. Responsibility of those who Testify
7. Conduct of the Hearing
8. 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 Certificates of Appropriateness 

(D)        Burden of Proof for Appeals 

(E)        Testimony and Evidence 

(F)        Lay Versus Expert Testimony

IX. Conditions of Approval

 (A)        Conditions Generally 

(B)        Conditions on Appeals Decisions

X. Written Decision
XI. Withdrawal of the Application
XII. Reconsideration/Reopening

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 Rules of Procedure for the Cary Town Council (Policy 143), the HPC Rules of Procedure, 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. 

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.  It is inappropriate for anyone to 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.  

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 Town staff should provide the information to all during the hearing before the entire Hearing Body. 

(a)        All persons, including Town staff, who intend to present evidence must be sworn in.

(b)        The Presider shall call the case as advertised on the agenda.  The Presider 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 Presider shall open the hearing.

(g)        The Staff Representative should present the staff report.

(h)        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 and any opposing party.  The Clerk 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.  

(i)         If all parties are represented by attorneys, the applicant, followed by any opposing party, may present a brief opening statement.

(j)         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 Presider may prefer to delay cross-examination until all sides present their arguments and evidence.

(k)        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.  

(l)         The Presider will provide Town staff and/or their attorney an opportunity to present relevant arguments or evidence.

(m)       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 Presider may rule on such objection or take it under advisement.

(n)        After all evidence has been presented, the Presider may ask the parties if there is additional relevant information that has not been presented that would make a continuance in order.  The Presider will entertain objections and rule on the admissibility of the evidence or exhibit.

(o)        Unless the Presider continues the public hearing to the next regularly scheduled quasi-judicial meeting of the Hearing Body or to a publicly stated date, time and location, the Presider 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.  

(p)        Unless the hearing has been continued, the Hearing Body shall render a decision on the matter, or, if it so chooses, recess the case to the next regularly scheduled quasi-judicial meeting of the Hearing Body or to a publicly stated date, time and location.  The Town Council and HPC may approve an application by vote of a majority of the members.  The ZBOA may approve variances 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); all other ZBOA decisions may be made by majority vote.

(q)        Any motion to approve an application that does not receive the required majority or super-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.  A motion to deny an application that fails does not mean that an application has been effectively approved.  An application can only be approved on an affirmative vote. 

(r)         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 IX) 

(s)        A written decision must be approved for every quasi-judicial application, generally at the next scheduled meeting of the Hearing Body.  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 X).

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 site/subdivision plan, 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 unnecessary hardships would result from carrying out the strict letter of the zoning ordinance.  The ZBOA must deny a request for a variance unless the applicant puts forth sufficient evidence that all of the criteria of LDO § 3.20.5 have been met.   

(C)        Burden of Proof for Certificates of Appropriateness:  The applicant has the burden of producing sufficient substantial, competent and material evidence for the Hearing Body to conclude that the request complies with the standards contained in the principles and guidelines adopted by the HPC for review of changes and that the proposed changes are congruous with the special character of the landmark or district.  If the applicant fails to meet this burden, the HPC must deny a request for a COA for major works and must deny or delay a request for a COA for demolition, as appropriate. 

            (D)        Burden of Proof for Appeals:  Appeals of administrative and HPC 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 HPC or 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 interpretation of the HPC or Town staff.  

When deciding an appeal of an administrative decision, 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.  

When deciding an appeal of an HPC decision regarding Certificates of Appropriateness, the Hearing Body hears the appeal “in the nature of certiorari.”  G.S. § 160A-400.9.  This means that the Hearing Body hears no new evidence and reviews the matter strictly on the record of the case forwarded to it by the HPC.  The Hearing Body must defer to the judgment of the HPC on matters of fact.  The HPC’s decision should be reversed or remanded only when the HPC’s decision is in violation of constructional provisions, in excess of statutory authority, inconsistent with applicable procedures specified by statute or ordinance, affected by other error of law, unsupported by substantial competent evidence in the record, or arbitrary or capricious. 

In appeals, neither party has the burden of proof and neither party has any right to any affirmative decision.

 (E)        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.

(F)        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) requires expert testimony in three cases:

1. The use of property in a particular way would affect the value of other property;
2. The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety; and,
3. 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, COAs, and variances, and such other approvals as law may permit.  For special use permits and subdivision and site plans, conditions must be reasonable and appropriate 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 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 decision.    An appeal of an administrative decision cannot be used to impose conditions or vary the ordinance. 

There are no specific LDO standards that apply to the appeal of an administrative or HPC decision; instead, the Hearing Body should make findings of fact and conclusions that are relevant to the specific ordinance or guideline that is at issue in the appeal.

The written decision must be signed by the Presider or other authorized member of the Hearing Body, and becomes effective upon filing with the Planning Department.  A copy of the written decision must be delivered to the applicant, property owner, and others as required by state law.  

 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 Presider or Clerk, 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 

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 material change in circumstances, the case may be submitted as a new case under the LDO.