Agenda - 09-28-1981 - Laserfiche WebLink

Browse Search

ors i / / to establish the existence of the facts and Sore active/role in the hearings before them than / conditions which the ordinance requires for Judges ordinarily take in judicial proceedings; ( the issuance of a special use permit, prima they should be impartial, but not impassive. u m t he hiou f l coond d o on ttrha e VoCi eitbe which are supported by competent, material, In virtually identical language, both the and sub evidence a antial evid ( appearing in the city and county enabling acts provide: 5a3 record. [I]he concurring vote of four fifths of the This statement may cause difficulty for two reasons: members of the board shall be necessary to First, the court uses the term prima facie in a reverse any order, requirement, decision, or manner inconsistent with the accepted meaning of determination of an administrative official the term as explained above. It appears from the charged with the enforcement of an ordinance '' court's statement that if the applicant produces adopted pursuant to this Article, or to ' ` sufficient evidence to authorize the board to find decide in favor of the applicant any matter in his favor, the board must do so unless evidence upon which it is required to pass under any tending to counteract his case is introduced by ordinance, or to grant a variance from the local planning officials, the board members them- provisions of the ordinance. selves, or other interested parties, Second, the very concept of establishing a prima facie case Note that the statute requires a four-fifths may have less meaning in the context of proceed- vote of the board membership and not merely the ings before a board of adjustment than it does in members present, a court of law because of the nature of the find- ings the board is called upon to make. As Part 1 while the required majority must participate of this series explains, before granting or deny- in the decision, the Court has indicated that not log a variance or a special-use permit, the board every member voting to make up the four- fifths must reach conclusions that involve a considerable majorityl�ust actually have been present at the exercise of judgment, For example, one finding hearing, In one case in which the board men- the board was required to make before issuing a bership changed between the date of the hearing special-use permit in the Refining Co. case was and the time when the vote on a special-use permit that "the location and character of the use if de- was taken, the Court held that "the changes in veloped according to the plan as submitted members Hp did not break the continuity o 6 t d and of t P Y the Board," The n approved will be e ew men 1 e in harmo members iy PP n ith the had act t e area in which access to the it is to be located, ,yl It is not at all minutes and records of the hearings, and so no clear how one establishes a prima facie case on infirmity was found in the proceedings. According such an issue when the very definition of what is to the logic of this decision, it might be per- 0 harmonious may vary from board member to board missible for only one member of the board to member. Virtually any factual representation actually hear the evidence so long as the required an applicant might make could be construed to majority has access to the record of the hearing support a finding that the proposed use will be and participates in the decision. Such a prac- in harmony with its surroundings. And conversely, Lice, however, might push judicial tolerance to almost anything the applicant proposed could be the breaking point. In any event, the issue is construed to be inharmonious, depending on one's avoided in many local units by ordinances or board definition. The point is that when findings in- rules establishing a quorum requirement of four- volve the exercise of considerable judgment and fifths (or in some cases even higher) of the discretion, the rule that an applicant who es- membership of the board. tablishes a prima facie case is entitled to the permit may be extremely difficult to apply, An essential element of a fair hearing is that the decision be made by an impartial tri- Crosa-examination bunal,. This means that in certain circumstances, Cross-examination of adverse witnesses is a board member may have to disqualify himself from another right found by the North Carolina Court to participation in a particular case if his vote be fundamenigl to a fair hearing before a board of could be challenged on the basis of bias, pre- judice, or other conflict of interest, However, adjustment. In many cases, particularly when a party is not represented by counsel, no attempt is an important countervailing factor is the four- made to take advantage of this right. However, If fifths vote requirement, As a result of this a participant at a hearing expresses a desire to requirement, a board member who removes himself question a witness presenting adverse evidence, from a case not only neutralizes whatever pre- the board must give him or his attorney every fair judicial impact his own participation might opportunity to do so, have but also (unless an alternate member is readily available to take his place) greatly If no participant at the hearing makes any increases the risk that the board will not be able attempt to cross-examine witnesses, the board to muster the necessary quorum to take affirmative itself has some duty to satisfy itself of the action. In effect, one sort of bias is exchanged accuracy of the testimony by asking whatever for another, Also where the doctrine of self- questions it believes suitable under the cir- disqualification is liberally interpreted and cumstances. Board members may properly take a frequently invoked, a tendency sometimes develops IP