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zoning ordinances for evidentiary hearings,and once in Oaths for witnesses testifying at these evidentiary hear- the ordinance those notice requirements are binding. ings may be administered by the chair of the board or any notary26 Witnesses may affirm rather than swear.All in- Speakers and Evidence dividuals likely to testify can be administered the oath The principal difference between legislative and evi- together at the beginning of the hearing in order to expe- dentiary hearings arises in how speakers and evidence are dite matters. If this is done, each witness should be re- handled. Since the purpose of an evidentiary hearing is minded of the oath at the outset of his or her testimony. to carefully gather relevant facts to aid in decision mak- Additional rules apply to assure that evidentiary hear- ing,restrictions on what can be heard and how it can be ings are conducted fairly.All of the parties to an eviden- heard are applied to these hearings. These standards tiary hearing have a right to know all of the evidence apply to any board making a quasi-judicial zoning deci- being considered by the board.Therefore it is improper sion, even the governing board.This places a particular for a board member to discuss the case or to individually burden on city councils and county boards of commis- gather evidence outside the hearing.If a board member sioners,which are usually,more accustomed to conduct- has prior or specialized knowledge about a case, that ing less formal hearings on legislative matters. should be disclosed to the rest of the board and the par- In the leading case on this subject, Humble Oil 6 ties during the hearing.n Also, it is inappropriate in an Refining Co. v. Board of Aldermen,which involved the evidentiary hearing to consider nonexpert personal opin- denial of a special-use permit for a gas station by the goy- ions or hearsay testimony. eming board in Chapel Hill,Justice Susie Sharp set forth At the conclusion of an evidentiary hearing,the board the key requirements for an evidentiary zoning hearing: making the decision must adopt written findings of the facts upon which it is basing its decision.This contrasts Notwithstanding the latitude allowed municipal with legislative zoning decisions, where no findings are boards,...a zoning board of adjustment,or a board of required—those decisions are left to the sound discretion aldermen conducting a quasi-judicial hearing,can dis- pense with no essential element of a fair trial:(1)The of the governing board,and the board is not required to party whose rights are being determined must be given explain why it made a particular decision.But since the the opportunity to offer evidence, cross-examine ad- purpose of an evidentiary hearing is to produce well- verse witnesses,inspect documents,and offer evidence documented evidence to support a decision,the parties in explanation and rebuttal; (2) absent stipulations or are entitled to know what the board concluded are the waiver such a board may not base findings as to the existence or nonexistence of crucial facts upon unsworn facts.Any judicial review of the decision is based on the statements; and (3) crucial findings of fact which are facts as determined by the board making the decision,so 'unsupported by competent, material and substantial the courts also need to know what the board concluded, evidence in view of the entire record as submitted'can- 'This is done by requiring written findings of fact. not stand 22 Since any subsequent judicial review is based on the If critical factual findings in a quasi-judicial zoning record established in this hearing,itis important to keep matter are based on unswom testimony or hearsay evi- detailed records of evidentiary hearings. Sound record- dence,the decision may be overturned by the courts and ing or a verbatim transcript of these hearings is not re- the matter sent back for a new hearing.23 If all the par- quired.28 Many boards do make audio tapes of these ties agree, however, the right to have witnesses under hearings in case a transcript is later desired. However, oath may be waived.24 handwritten records and detailed summary of the testi- A question arises occasionally as to whether attorneys mony received are acceptable. Special care should be need to be under oath when making a presentation in an taken to ensure that the clerk to the board retains exclu- evidentiary hearing. If the attorney is just summarizing sive custody of any exhibits presented.The exhibits and evidence presented by others and making legal argu- record of testimony should be retained for at least the ments for his or her client,there is no need to be under period within which a judicial challenge can be filed— oath. On the other hand, if the attorney is offering evi- thirty days after notice of the decision is filed and corn- dence directly,he or she would need to be sworn like any municated to the parties—and the matter resolved. other witness. The court tolerates but strongly discour- ages an attorney from serving both as a witness and an Additional Hearings advocate in the same case 25 Likewise, if the city or With quasi-judicial land-use decisions, such as vari- county staff is presenting evidence to the board in an ance requests and special-use permits,the doctrine of res evidentiary hearing,they should also be under oath. judicata applies,and a board may not reopen and rehear POPULAR GOVERNMENT Spring 1993 33