Agenda - 09-28-1981 - Laserfiche WebLink

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i 2 which the principle was first enunciated, the itancy to testify are not revealed; his Court held that the existence or nonexistence of motives and bias are not uncovered; his a nonconforming use was a "crucial" finding of demeanor while testifying cannot be known, fact, but has never established any criteria for Most important of all, the affient's state- distinguishing crucial from noncrucial facts, ments cannot be subjected to that searching i However, it is reasonable to assume that a fact is light of cross-examination which provides the crucial or critical if: (1) except for the exist- best instrumentality our experience has yet :J ence of that fact, the board could not reach a devised FoE assessing the true value of 'iiI ' certain conclusion; and (2) the conclusion reached testimony. i is indispensable to the outcome of the case. The 11 issue of whether proffered evidence relates to a "crucial" fact can easily be avoided when the Fourth, testimony that ge not made according evidence is offered in the form of oral testimony co the witness's own knowledge cannot be the sole 1 simply by lacin support for a critical finding of fact. In other P y y p gall witnesses under oath, and words, unless a witness is recognized as an expert this seems now to be the customary practice, by the chairman of the board, the witness should Third, as a not be allowed to tell what he "thinks" or "feels" general rule, and subject to or "believes," but only what he knows as a fact, certain exceptions long recognized in courts of In the same way, the board cannot rely upon tes- law, crucial findings of fact may not be based timony of a witness if it becomes clear that the upon hearsay evidence alone. Hearsay can be source of the witness's "knowledge" is the state- defined as a statement not made at the hearing ments of another individual. This requirement is which the proponent seeks to have admitted as evi- obviously quite closely related to the hearsay dence of the truth of the matter asserted in that rule. For this reason, an attorney should not be , statement, In other words, if an ordinance pro- allowed to "testify" for his client as to factual j vides that before a board can grant a special-use matters about which he has only secondhand know- permit, it must find that the use will not have an ledge (although he can make arguments about any of adverse impact on neighboring properties, the these matters). following items all constitute hearsay, even if they are otherwise relevant and material; (1) a Beyond these four basic considerations lies a statement by the applicant that he consulted all whole sea of evidentiary questions that eventually of his neighbors, and all said that they favored must be explored by litigation or chartered by his application; (2) letters by the applicant's legislation. In the meantime, boards of adjust-- neighbors stating that they favor the proposed went should be guided by the following general use; and (3) sw3rn affidavits by the neighbors to principles: (1) the most reliable evidence prac- the same effect, The factual matter at issue in ticably available should always be obtained, and each case is the existence of objections to peti- the more crucial the fact in question the more ' tioner's application on the part of his neighbors, important this requirement; and (2) in any event. The proffered statement, letters, and affidavits only evidence of a kind relied upon by reasonable are all hearsay because the proponent seeks to use men in the conduct of their own important affairs the words of the neighbors themselves to prove his should ever be considered. point, but those words were not uttered at the • hearing. When in Doubt, Admit the Evidence Although the guidelines differentiating Hearsay of this type cannot be used as the competent from incompetent evidence are somewhat sole foundation for crucial findings of fact by hazy, boards of adjustment can take some comfort the board because it is regarded by the law as from the doctrine generally recognized in North inherently unreliable. The following statement by Carolina that the decision of an administrative the State Court of Appeals concerning affidavits board will not be reversed simply because the (probably the most reliable of the three types of board admitted incompetent evidence as long as hearsay mentioned here) indicates some of the there is sufficient competent evidence An the reasons why hearsay of this type is suspect: record to support the findings of fact. However, the existence of this doctrine emphasizes the need Although made under oath, an affidavit is for the board to make specific findings of fact, inherently weak as a method of proof. It is for if the board were allowed to state only gen- prepared without notice and under circum- eral conclusions, in all probability it would be stances which afford ample opportunity to relatively easy to find sufficient competent lead the witness; it normally includes only evidence in the record to support these general matters deemed helpful by the party who conclusions, and this would make a mockery of the prepares it, omitting all matters deemed principle that only competent evidence should be detrimental; it may be entirely true as far considered by the board. As a result, courts as it goes, and yet constitute the misrep- might find it necessary to require boards to make resentation of a half-truth because of mat- difficult decisions on the admissibility of evi- tars omitted, The source and extent of the dance, with errors in judgment penalized by re- af£iant's knowledge of the facts concerning versa'. Therefore, it appears that when there is which he swears are seldom adequately die- reasonable doubt as to whether a matter conati- closed; any weakness in his memory or hes- tutee admissible evidence, the board should let 1 i