Agenda - 09-28-1981 - Laserfiche WebLink

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2 ,\ "person aggrieved" is broad enough to include a Right to Present Evidence neighbor who believes that a permit was errone- The State Supreme Court has held that a party ously granted under the ordinance, As indicated to a board of adjustment hearing must be allowed in Part 2 of this series, a property owner who to present evidence to meet his burden of proof applies for a variance or special-use permit is and must also be permitted to pment evidence by the only formal party to such a proceeding, though way of explanation or rebuttal. But this right i, other interested individuals may participate at is not unlimited. Clearly, the board is not 1 the hearing. required to listen to evidence that is incompetent (as that term is explained in Part 2 of this ' A question has arisen in several North series),1IIrrelevant, immaterial, or unduly repe- Carolina cases as to whether a person who has only titious. Evidence is irrelevant if it has no an option to buy a certain piece of property has reasonable tendency to prove or disprove a point standing to appeal from an adverse decision of a at issue, For example, evidence that all the past zoning administrator or to apply for a variance or ventures of a builder have been successful is special-use permit. the North Carolina Court has irrelevant if the issue is whether the plans for a resolved the issue by holding that a mere option -particular development comply with the specifi-- holder does not have standing but a prospective cations of the ordinance. This is a rather purchaser who has conditionally exercised his technical doctrine with which boards of adjustment option (the contingency being a successful appeal need nor be much concerned. The concept of mate- to the board or successful application for a riality is more important. Evidence is immaterial variance or special-use permit) doee have stand- if it does not bear upon one of the issues. in the ing. Obviously, persons with interests in the case. For example, evidence of personal or property more remote than those of an optionre, or family hardships in a variance application is persons with no legal interest whatever in the immaterial because a variance can be granted only property, cannot properly seek permits from the on the bases of hardships that stem from the board. application of the ordinance to the land. Evi- dence that is merely repetitious may be excluded Notice simply on the pragmatic basis that meetings have In proceedings before boards of adjustment, to end, decisions eventually have to be made, and notice to the parties is seldom a problem because evidential or argumentative overkill does not help in most cases the only party to the action is the the fact-finder reach more accurate conclusions. individual making application to the board, One rare exception might occur when a neighbor appeals Burden of Proof the issuance of a zoning permit to a property The burden of proof includes both the bur- owner on the basis that the zoning administrator den of producing evidence and the burden of per- misinterpreted the ordinance and the ordinance suasion. The burden of producing evidence is the ! actually prohibits the use for which the permit obligation of an applicant to bring sufficient was granted. In such a case, the property owner evidence before the board of adjustment to allow to whom the y it to find in his favor on a particular issue. In permit was issued would be a would bar the case of an application for a variance or s e- party to the appeal by the neighbor and would have Pp P to be notified of the appeal. Another deviation cial use permit, this means that he must produce from the norm occurs when a lessee makes appli sufficient evidence to allow the hoard reasonably cation to the board, In this type of case, good to conclude that the conditions precedent to the land be issuance of the permit have been Satisfied. When practice $ictates that the owner of the land notified, he has carried this burden the applicant is said to have made out a prima facie case. According Usually, however, the only issue is whether to the common understanding of this term, the notice of the appeal or application to the board trier of fact is authorized but not compelled to must be given to the public or to neighboring find in fav��r of the party establishing the prima landowners. The city and county zoning enabling facie case. acts are silent on this question, although it appears that most ordinances do require that some The burden of persuasion also lies with the form of notice be given (most frequently newspaper applicant. Thus, if the applicant's opponents notice) announcing a public hearing on variance introduce evidence that is as persuasive as his and special-use permit applications. Perhaps the evidence, the applicant loses. In other words, best practice is to provide in the ordinance that a tie goes to the party that does not have the newspaper notice only (similar to Me notice burden of persuasion, requirement for zoning amendments) must be given for all special-use permit and variance appli- In Refining Co. v. Board of Aldermen, the cations, leaving to the discretion of the zoning court made a statement that is certain to cause 1 enforcement officials the determination of when a confusion on the issue of the burden of producing more direct form of notice ought to be sent to evidence: property owners immediately affected by the pro- posed variance or special use. When an applicant has produced competent, material, and substantial evidence tending 1 ! I