Agenda - 10-19-1999 - 9d - Laserfiche WebLink

Browse Search

26 Popular Government Spring 1993 http: / /ncinfo. iog.unc.edu /planning/pgsp93.htrn involve two key elements: the finding of facts regarding the specific proposal and the exercise of some discretion in applying predetermined policies to the situation. Advisory zoning decisions, such as review of a rezoning petition by a county planning board, do not require a formal hearing. Nor do administrative decisions, such as staff issuance of permits for permitted uses, initial ordinance interpretations, and initiation of enforcement actions. Types of Proceedings Government uses two different types of proceedings to formally obtain comment on proposed zoning decisions: legislative hearings and evidentiary hearings. Legislative hearings are sessions mandated by statute or ordinance to secure citizens' comments on a specific policy proposal. Legislative hearings must be conducted in a fair, orderly manner so as to allow citizen opinion to be expressed directly to those making zoning policy decisions. Evidentiary hearings are an even more formal means of gathering evidence before a decision is made in the application of a zoning ordinance to an individual situation. These hearings are much like a court proceeding -- witnesses present testimony, exhibits are submitted, detailed minutes are kept, and a formal written decision is rendered. Legislative hearings are required for legislative zoning decisions, while evidentiary hearings are required for quasi-judicial zoning decisions. Both types of hearings are open to the public and are intended to solicit comments, but they have different standards for the notice required prior to the hearing, as well as for who can speak, what issues are appropriately raised, the formality with which the hearing must be conducted, and the records that must be maintained. Why Are There Different Rules? Matters certainly would be simpler if there were just one generic "zoning hearing" that could be used whenever a city or county was required to hold a public hearing on a rezoning, a special-use permit, or a variance. Local officials could learn one set of rules and follow them for all zoning hearings. But that is not the way things work, and there are good reasons that different requirements must be followed for different types of zoning hearings. Because legislative zoning decisions such as a rezoning have such widespread impact, the state statutes authorizing local government zoning require broad public notice of the proposed decision. The policy choices in a zoning ordinance affect landowners, neighbors, business and industry, and all citizens concerned about the future character of the community. The statutes encourage full public discussion and deliberation before these decisions are made and leave substantial discretion in the hands of local elected officials regarding what these public policies should be. In quasi-judicial zoning decisions (such as a variance petition), on the other hand, while the hearing and deliberation must be open to the general public, the focus is on gathering relevant evidence and protecting the rights of the specific parties before the board. No new policies affecting the entire community are being created, so there is no need to-broadly solicit public opinion. But since the rights of the parties are being determined, the courts have imposed fairly strict requirements to assure an impartial decision based solely on legitimately acquired and considered evidence. The courts further require a clear rationale for the decision, because any appeal of the local board's decision to superior court will not result in a new hearing on the facts - -the courts must use the record developed before the local board. An expeditious judicial review ensures that these required protections of individual rights have been observed. These different types of considerations result in different statutory and constitutional due process requirements for the various types of zoning decisions. The purpose of a hearing on a legislative zoning decision is to gather public opinion; the purpose of a hearing on a quasi-judicial zoning decision is to gather evidence. Therefore different types of notice are required, and different types of hearings are conducted. (See Table 1 for a summary of differences between. legislative and quasi-judicial zoning decisions.)