ORD-1999-016 Proposed Zoning Atlas Amendment Z-3-9 Ernie McBroom

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31 opular Government Spring 1993 http://ncinfo.iog.unc.edu/planning/pgsp93.htm Speakers and Evidence The principal difference between legislative and evidentiary hearings arises in how speakers and evidence are handled. Since the purpose of an evidentiary hearing is to carefully gather relevant facts to aid in decision making,restrictions on what can be heard and how it can be heard are applied to these hearings. These standards apply to any board making a quasi-judicial zoning decision, even the governing board.This places a particular burden on city councils and county boards of commissioners, which are usually more accustomed to conducting less formal hearings on legislative matters. In the leading case on this subject,Humble Oil &Refining Co.v. Board of Aldermen, which involved the denial of a special-use permit for a gas station by the governing board in Chapel Hill,Justice Susie Sharp set forth the key requirements for an evidentiary zoning hearing: Notwithstanding the latitude allowed municipal boards, . . .a zoning board of adjustment,or a board of aldermen conducting a quasi-judicial hearing, can dispense with no essential element of a fair trial: (1) The party whose rights are being determined must be given the opportunity to offer evidence,cross-examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal; (2) absent stipulations or waiver such a board may not base findings as to the existence or nonexistence of crucial.facts upon unworn statements;.and(3) crucial findings of fact which are "unsupported by competent,material and substantial evidence in view of the entire record as submitted" cannot stand. 22 If critical factual findings in a quasi-judicial zoning matter are based on unswom testimony or hearsay evidence,the decision may be overturned by the courts and the matter sent back for a new hearing.1231 If all the parties agree,however,the right to have witnesses under oath may be waived. 24 A question arises occasionally as to whether attorneys need to be under oath when making a presentation in an evidentiary hearing.If the attorney is just summarizing evidence presented by others and making legal arguments for his or her client,there is no need to be under oath. On the other hand,if the attorney is offering evidence directly,he or she would need to be sworn like any other witness. The court tolerates but strongly discourages an attorney from serving both as a witness and an advocate in the same case.251 Likewise,if the city or county staff is presenting evidence to the board in an evidentiary hearing,they should also be under oath. Oaths for witnesses testifying at these evidentiary hearings may be administered by the chair of the board or any notary.f261 Witnesses may affirm rather than swear. All individuals likely to testify can be administered the oath together at the beginning of the hearing in order to expedite matters. If this is done,each witness should be reminded of the oath at the outset of his or her testimony. Additional rules apply to assure that evidentiary hearings are conducted fairly.All of the parties to an evidentiary hearing have a right to know all of the evidence being considered by the board.Therefore it is improper for a board member to discuss the case or to individually gather evidence outside the hearing. If a board member has prior or specialized knowledge about a case,that should be disclosed to the rest of the board and the parties during the hearing.f271 Also, it is inappropriate in an evidentiary hearing to consider nonexpert personal opinions or hearsay testimony. At the conclusion of an evidentiary hearing,the board making the decision must adopt written findings of the facts upon which it is basing its decision. This contrasts with legislative zoning decisions,where no findings are required--those decisions are left to the sound discretion of the governing board, and the board is not required to explain why it made a particular decision.But since the purpose of an evidentiary hearing is to produce well-documented evidence to support a decision,the parties are entitled to know what the board concluded are the facts.Any judicial review of the decision is based on the facts as determined by the board making the decision, so the courts also need to know what the board concluded. This is done by requiring written findings of fact. Since any subsequent judicial review is based on the record established in this hearing,it is important to keep detailed records of evidentiary hearings. Sound recording or a verbatim transcript of these hearings