Agenda - 05-01-2018 8-a - Minutes

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11 to the requesting party. Per newly enacted state law most records will be posted electronically 1 in response to requests. 2 3 Below is a brief overview of county boards of adjustment: 4 5 The Orange County Board of Adjustment is a quasi-judicial hearing panel appointed by the 6 Board of Commissioners. The term quasi-judicial usually refers to the adjudicative acts of an 7 elected or appointed official or board. In Orange County the quasi-judicial hearings before the 8 Board of Adjustment generally fall into three categories – appeals of final decisions, 9 applications for special use permits, and variances. 10 11 Unlike legislative hearings in which the public at large may comment on all conceivable policy 12 issues associated with the subject matter of the legislative hearing, there are restrictions on 13 who may participate in quasi-judicial hearings. The participants of a quasi-judicial hearing may 14 only be those interested parties with standing. Interested individuals with specific knowledge or 15 expertise on the subject matter may participate as witnesses or expert witnesses as long as 16 they have the ability to offer competent, material, substantive testimonial or other evidence. 17 Members of the general public may not participate if they do not fall into one of these 18 categories. 19 20 The parties to a quasi-judicial hearing have a right to have their matter heard by an impartial 21 decision-maker. If a member of a quasi-judicial board has already formed an opinion before the 22 hearing or has a conflict of interest, that member should not participate in the hearing. Members 23 of quasi-judicial boards should also ensure they have no ex parte communications either with 24 parties, witnesses, or the general public. Any such communications must, at a minimum, be 25 disclosed. 26 27 There may be members of local quasi-judicial boards who would prefer to deliberate in closed 28 session. This is not permitted. North Carolina open meetings laws require meetings of public 29 bodies to be held in open session so that the public may remain informed of the nature and 30 subject matter of the meetings. The law does have exceptions that allow closed sessions, but 31 these exceptions do not include the authority to deliberate on quasi-judicial hearings. The only 32 exception that may apply to boards of adjustment is consultation with an attorney. There may 33 be situations in which a board of adjustment needs to consult an attorney – for example, when 34 a decision is appealed to inform the Board of Adjustment of its role in the appeal. 35 36 Currently, meetings of the Orange County Board of Adjustment are attended by a staff attorney 37 of the County Attorney’s office. Under the prior County Attorney, meetings were attended by the 38 assistant attorney. In both situations the attorney was present to answer questions of law and 39 procedure and to help ensure due process. As noted above, it may be lawful for boards of 40 adjustment to meet in closed session to consult with an attorney. This has only occurred once 41 in the last thirteen years. That incident was for the limited purpose of discussing the board’s 42 role in an appeal. Questions of law are generally asked in open session and generally 43 responded to by all attorneys present. 44 45 Attachment 1 in their agenda packet shows examples of how surrounding counties and towns 46 staff board of adjustment meetings. None regularly hire independent counsel to represent their 47 boards of adjustment. 48 The only exceptions to this appear to be when there is an actual conflict for the attorney who 49 attends their board of adjustment hearings. Only in those situations does another attorney 50