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

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12 attend for the board of adjustment. The only situations in which another attorney would be 1 needed are situations as noted above when the Board of Adjustment has questions of law that 2 for some reason cannot be asked in open session or if the County appeals a Board of 3 Adjustment decision. The former has occurred once as noted above. The latter has not 4 occurred in at least the last thirteen years are unable to determine if it has ever occurred in 5 Orange County. 6 7 Orange County Planning Staff is presently training Planning Board members using an 8 interactive video E-Learning seminar series from the UNC School of Government. Some 9 training topics are directly relatable to the Board of Adjustment functions, including “Conducting 10 an Evidentiary Hearing” and “Making a Quasi-Judicial Decision,” both by Professor Owens. 11 Training can begin immediately for the Board of Adjustment and continue while the access is 12 active. 13 14 David Owens, Gladys Hall Coates Professor of Public Law and Government, of the UNC 15 School of Government, gave a brief history of the BOA. He said when zoning was first 16 envisioned, it was deemed that a separate board would be needed to handle quasi-judicial and 17 administrative aspects of development and regulations, as opposed to legislative body that sets 18 the policies and created the board in the first place. He said New York City had the first Board 19 of Adjustment to apply policies to individual cases where some judgement and discretion and 20 fact-finding were necessary. 21 David Owens said this was incorporated into the state enabling acts, which N.C. 22 adopted in 1923 for cities, and required a BOA. He said when counties were given the authority 23 to do zoning in 1959, that same authority was applied. He said the notion was that the Board of 24 County Commissioners would adopt policies, and determine the substantive requirements of 25 the development and regulation, with the advice of a planning board. He said once this was 26 done, decisions that were not objective and were the application of policy would be assigned to 27 the BOA. He said these decisions typically fall into one of three categories: 28 29 • Variances - justified by substantial hardship but still consistent with the purpose of intent 30 of ordinance; 31 • Appeals of staff decisions or interpretation of an ordinance 32 • Special/conditional use permit – where the ordinance says, “this is allowed in a zoning 33 district” but only if one can show evidence that specific standards set forth in the 34 ordinance are met: harmonious with the surrounding neighborhood, not have a 35 significant adverse impact on neighboring property values, be consistent with plan and 36 ordinance 37 38 David Owens said in carrying out the authority to make decisions, the BOA holds an 39 evidentiary hearing, not to determine public opinion, but to apply the ordinance as written by the 40 Board of County Commissioners. He said there is very little comment made at these hearings, 41 and the only reason to hold these hearings is to gather evidence to determine the facts that are 42 necessary to apply the ordinance as written. He said witnesses are under oath and subject to 43 cross examination, there is opportunity to present rebuttal testimony, and general fair trial 44 standards seen at a court, but in a slightly more informal sense. 45 David Owens said there are about 500 BOAs in N.C., made up mostly of lay members, 46 who exercise the judicial type function of hearing evidence, and based on that evidence, 47 applying the standards in the ordinance. He said if the BOA does not like the standards, it can 48 make a recommendation to the Board of County Commissioners to change the ordinance, but 49 the BOA has no authority to amend the ordinance on its own. 50