Agenda - 09-28-1981 - Laserfiche WebLink

Browse Search

I A e � 3 the matter into the record, but it should elan be reliability of certain types of evidence. In certain to make specific findings of fact. In courts of law, where a dispute usually involves �� this way, a party who feels aggrieved by the the rights of private litigants only and the admission of allegedly incompetent evidence will burden of protecting his own interests can fairly have a fair opportunity:to obtain relief if he can be placed upon each contending party, this result demonstrate in court that except for the allegedly is not necessarily pernicious. But unlike the i incompetent evidence, there is not sufficient private lawsuit, in board of adjustment proceed- evidence in the record to support a "crucial" ings the public interest is always involved, and finding of fact (as that term is described above). no one can waive the public's right to see that the applicant meets his burden of proof by corn- When Evidence Is Excluded petent evidence. Consequently, even though no one If the board has no doubt that a matter is objects to the admissibility of certain types of inadmissible as evidence and decides to exclude evidence, the responsibility remains with the it, it should offer the proponent of the evidence board to see that clearly incompetent evidence is the opportunity to include in the record some sort excluded. of statement as to what the evidence would have shown if it had been admitted. In this way, a If the board requires the applicant to meet reviewing court will be able to determine not only his burden of proof with competent evidence only, whether the evidence was improperly excluded but it is hardly fair to the applicant, who quite also, if an error occurred, whether the proponent frequently is unrepresented by counsel, to allow was prejudiced by the error, the doctrine of waiver to work against him. In addition, the North Carolina Supreme Court has Waiver of Objections to Admissibility of Evidence stated that when a petitioner has produced suf- The question next arises whether the board ficient competent evidence to establish the exist- should exclude evidence on its own initiative or ence of the facts and conditions required for the whether it should exclude evidence only when some issuance for the permit, he is entitled to the participant at the hearing has objected. The permit unless a denial can reasonably be based answer involves a consideration of the doctrine of upon sufficient competent evidence in the reco n! waiver. As a general principle of evidence, at that tends to contradict the applicant's case. least as the rules are applied in a court of law, Consequently, the board should exclude obviously a party waives his right to have incompetent incompetent evidence offered in opposition to the evidence excluded in most instances simply by application, even when the petitioner fails to failing to raise a timely objection to the admis object to it, sibility of the evidence. Some carry-over of this doctrine into the field of local administrative Consideration of Natters Not ID law is indicated by the North Carolina Supreme Presented in Evidence by Hearing Participants_ Court's statements in two cases and its holding in In some cases, one or more board members may a third to the effect that a party to a hearing be aware of matters that are relevant to the can waive his right to hove only sworn testimony petitioner's application. For example, it is a considered by the board. However, there appear common practice for at least one board member to to be ample reasons why the waiver doctrine should make an on-site inspection of the piece of prop- be limited to the facts of the one case in which erty involved in the petitioner's application it was actually applied (in which the court held before the hearing. Occasionally, the entire that an applicant for a variance who failed to board may view the property in question as well as request at the hearing that opposing witnesses be the surrounding area. When this is done, the sworn and who testified himself without being board may properly consider the information so sworn waived his right to object on appeal to tI5 gained, as long as the board member explains at admission of the opponents' unsworn testimony), the hearing exactly what information he believes the board has obtained from the inspection. In The reasons that the doctrine of waiver this way, a participant in the hearing will have should not apply to board of adjustment hearings the opportunity to counter the board's information stem from the differences between the nature of with additional evidence and argument, and a re- these proceedings and true adjudicatory proceed- viewing court will have before it the entire mass ings in courts of law or some state administrative of evidence consic Bred by the board in making its agencies. Io begin, while opposing points of view findings of fact. may be presented at board of adjustment meetings, they are not truly'adversary proceedings since Substantial Evidence usually there is only one formal party to the Not only must the board consider only corn- hearing--the applicant. In many cases, no one petent evidence, but also it must have in front of will appear to oppose the application. Even when it substantial competent evidence gedfore it can parties opposing the application do appear, they make a particular finding of fact, for a re- frequently are unrepresented by counsel and con- viewing court applies quantitative as well as sequently are not in a position to object to the qualitative criteria in assessing the results of evidence. If lack of objection were always held the board's deliberations. In the recent Refining to constitute a waiver, then in these cases the Co. V. Board of Aldermen case, the Board explicitly applicant could meet his burden of proof in total refused to establish a definitive yardstick disregard of accepted principles concerning the against which to measure "substantial" evidence. ill