Agenda - 09-28-1981 - Laserfiche WebLink

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fill i ilium I, 1 II 1111111111111111 11111liiilil111111111111111111111111111111I11111111111I1111 I, 1ul 1 it 11 11 llI II II II IIIIjI1 i Iii III 11'IJJ IIII 1 II I1I11 IIIIl11 11 111111 iiIiIi 11 +Illli I '. .,.. II .c .i 1 ZONING IIi11 IlI III 1 1111111 III II tl I III ,Ili I I It I hhY No, 6 (1975) II II `i i 'IIII i I III HII Ii II I,i�IIi . . I 111111111111111111II111111111111111111111111III lili111111IIi1111111IIIIIIllliiIll PROCURES OF THE 13OARD OF ADJUSTMENT PART 3 CON DUO INC A I INN RINK; MICHAEL 'ROUGH grand and petit juries from its coverage, as well as "(a]11 State agencies, commissions or boards This Is the third of a three-part series of exercising quasi-judicial functions during any memoranda dealing with the quasi-judicial pro- meeting or session held solely for the purpose of ceedings of boards of adjustment. Part 1 deals making a decision in an adjudicatory action or with the nature of the record of the proceedings. proceeding." However, since an earlier section It also contains a general introduction to the of the law recognizes the separate viatence of series, discussing such matters as the reasons "State, county, city and municipal" commissions boards of adjustment are considered quasi-judicial and boards, it would be difficult to argue that agencies and the sources of the rules imposed on the exemption for state quasi-judicial agencies such boards. Part 2 examines what types of evi- also applies to local boards of adjustment. dance are admissible at board hearings. Ihis Consequently until the law is changed, the de- memorandum covers some remaining questions con- liberations of boards of adjustment must remain cerning the conduct of board hearings. open to the public. PROCEDURAL REQUIREMENTS Locally Adopted Procedural Rules Many cities and counties, acting pursuant to In General authority granted by general law or local. act, With the one exception noted immediately have adopted their own rules and regulations below, all of the procedural requirements ap- governing the procedures that boards of adjustment plicable to board hearings are judicially imposed. must follow. It is critical that boards be aware The central thread that tics all of the require- of the following statement of the State Supreme ments together is the due process notion that a court: proceeding that affects property rights must be "fair" in all respects; or, as the North Carolina The procedural rules of an administrative Supreme Court recently said: "[The board] can agency are binding upon the agency which dispensrl with no essential element of a fair enacts them as as well as upon the public.... trial" Although most of the requirements dis- To be valid the action of the agency must cussed below are based on this principle, many conform to its rules which are in effect at questions surrounding the translation of this the time the action is taken, particularly principle into concrete rules must await reso- those designed to provide procedural safe- lution in future cases. guards for fundamental rights." [Citation omitted.] In no other way can an applicant Qpen Meetings Law he accorded due process and equal protection, The only procedural requirement imposed by or the [board( refute a charge that their state atatute1on meetings of local administrative denial of a permit constituted an arbitrary bodies such as boards of adjustment is that the and unwarrantedbdiscrimination against a meetings of such boards be open to the2public in property owner. accordance with the Open Meetings Law. A strong argument can be made that boards ought to be able Parties to meet in executive session in order to weigh the The city and county zoning enabling acts evidence before making findings of basic fact.. provide that "any person aggrieved" by the deci- After all, when acting in this capacity, the board sion of the zoning enforcempt officer may appeal is acting much like a jury, and our tradition is to the board of adjustment. Obviously, the owner to have such deliberation shielded from public of the property involved can appeal an adverse scrutiny. The Open Meetings Law does exclude decision to the board. In addition, the language