NCAZO Quasi-judicial Training Asheville, NC July 24, 2012

1. NCAZO Quasi-judicial Training • Asheville, NC • July 24, 2012 Bill Duston, AICP Chief Planner, N-Focus Planning

2. TOPICS TO BE DISCUSSED • What requires q-j hearings • BOA membership • Variances and findings • What is an appeal? • What is a BOA interpretation? • BOA Rules of Procedure • How to Conduct a Hearing • Hearsay/Evidence • Conflicts of Interest • Voting and making Decisions • Q/J Do’s and Don'ts

3. SO…WHAT REQUIRES A QUASI-JUDICIAL HEARING? • Variances • Conditional Use Permits • Appeals • Interpretations (more on this later)

4. WHAT ARE VARIANCE “FINDINGS”? • North Carolina Courts have said: • Practical Difficulties or Unnecessary Hardship • Spirit of Ordinance is Preserved • Public Safety and Welfare Secured • Substantial Justice Done

5. TOWN X’s VARIANCE “FINDINGS”? (A) There are practical difficulties or unnecessary hardships that would result from carrying out the strict letter of this Ordinance. 1. If the applicant complies with the provisions of this Ordinance, he/she can make no reasonable use of his/her property. 2. The hardship of which the applicant complains results from unique circumstances related to the applicant's property. 3. The hardship relates to the applicant's property, rather than personal circumstances. 4. The hardship is not the result of the applicant's own actions. (B) The variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit. (C) The granting of the variance assures the public safety and welfare and does substantial justice.

6. COUNTY Y’s VARIANCE “FINDINGS OF FACT” A. There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance; B. That the variance is in harmony with the general purpose and intent of this ordinance and preserves its spirit; C. That in the granting of the variance, the public safety and welfare have been assured and substantial justice has been done; and, D. That the reasons set forth in the application justify the granting of a variance, and that the variance is a minimum one that will make possible the reasonable use of land or structures.

7. HOW TO VOTE ON FINDINGS →If you are leaning towards approval with added conditions, make sure conditions are “on the table” before taking votes; →Try to get a vote on each motion using the finding verbiage from your code; → Make sure each motion references evidence gleaned from the public hearing; → Vote on ALL findings, even if one is turned down; and, → Once votes on each finding are made, vote to approve/disapprove motion on the floor.

8. WHAT’S A LEGAL/ILLEGAL VARIANCE? • Allowing for the reduction in the required number of off-street parking spaces from 13 to 11 spaces. • Allowing a convenience store in the B-2 district when, according to the Table of Uses, convenience stores are not allowed. • Allowing for a 7 foot ground mounted sign when the Code specifies that the maximum height shall be only be 5 feet. • Allowing a reduction in the required rear yard setback from 30 to 27 feet. Some codes limit the scope of variances that they will consider

9. WHAT’S A CONDITIONAL USE PERMIT? • Uses, by their very nature, require approval on a case-by-case basis, usually from BOA or governing board. • Depending on the use, it’s location, and other factors, FAIR AND REASONABLE conditions may be placed upon the permit by the issuing body. • Conditions may also be offered by applicant. Approval body makes final decisions on what (if any) conditions are imposed. • Sample CUP examples: • Outdoor amusement facilities • Retail uses w/>100,000 sf GFA

10. COUNTY Y’s CUP “FINDINGS OF FACT” A. The use will not materially endanger the public health or safety if located where proposed and developed according to plan; B. The use meets all required conditions and specifications; C. The use will not substantially injure the value of adjoining or abutting property unless the use is a public necessity; and, D. The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and will be in general conformity with the adopted land use plan and other plans for the physical development of the county as adopted by the board of commissioners.

11. BOA MEMBERSHIP • Needs to be at least five (5) members, each appointed for three-year terms • Proportional representation from ETJ appointed by County Commissioners • 5 or 7 REGULAR members the norm • Alternate members necessary? ABSOLUTELY! • More later…but look at ROP about voting ability of ETJ members and who can vote if hearing continued. • Alternate members should attend ALL hearings

12. WHAT’S AN APPEAL? • If somebody disagrees with the decision of the Administrator, that decision can be appealed to the BOA (within 15? 30? Business? Calendar? days of contested action). Administrator’s decision CANNOT be overruled or modified by Board of Commissioners. • BOA has authority to reverse, modify or affirm, in whole or in part, the decision of the Administrator. • The BOA can reverse or modify the contested action if it first determines that the Administrator erred in the application or interpretation of the requirements of the code.

13. WHICH IS AN ALLOWABLE BOA INTERPRETATION? I have two definitions of the term “convenience store”. Which should I use? How should I measure setbacks on an irregularly shaped lot? The GIS maps and the old tax maps don’t match. Which is the correct zoning boundary? A certain use is not listed in the use table. Should I issue them a permit?

14. BOA RULES OF PROCEDURE A SET OF RULES (ROP) SHOULD BE ADOPTED BY THE BOA… AND BE FOLLOWED. They normally address: • When officer elections occur/roles of the officers • When regular meetings are held/how special meetings occur •  How/when alternate members are used •  Who makes motions/how votes are taken/who can vote • How to deal with conflicts of interests and recused members • How meetings are conducted • How votes are taken

15. BOA RULES OF PROCEDURE • Make sure you (staff and Chair) have the ROP at all meetings; • If a particular Rule needs to be changed, let staff know. BOA can change the ROP. • MAKE SURE THE ADOPTED RULES (AND CODE) ARE FOLLOWED…ALWAYS…NO EXCEPTIONS… NADA… NONE… NO WAY, JOSE… AIN’T GOING TO HAPPEN! Once adopted, ROP should be reviewed annually… and with all new members. When was the last time you looked at them?

16. Q-J Hearing Overview Application MUST be complete (with fee paid!) and submitted on time before case is processed and heard. Public hearing must be properlyadvertised. People can give evidence…only after they have been sworn in/affirmed to do so. Purpose of hearing is to gather evidence…not to gauge popularity of application. What do the General Statutes say about q-j hearing notification?

17. Q-J Hearing Overview 5. You cannot make your decision based solely on financial impacts. 6. BOA MUST make findings that support their decision for variances, CUP’s …good idea to share findings with applicant beforehand. 7. Written record of hearing should include written findings…and the facts that support them. 8. Always notify applicant of BOA decision and their ability to appeal the BOA decision to Superior Court. Some communities include findings in application and require each to be addressed in the application by applicant. Good idea!

18. How Should a Q-J Hearing Be Conducted? Hearing opened by Chair; hearing procedures explained by Chair. Chair asks if any member has (1) potential family/financial conflict (2) can vote fairly on the case; and, (3) or any “relevant evidence or ex-parte conversation” that needs to be shared. All persons (including staff) who are to give evidence get sworn in/affirmed. What are your meetings like?

19. How is a Q-J Hearing Conducted? How Should a Q-J Hearing Be Conducted? 4. Staff (once sworn in) gives overview of case. 5. Have sign up sheet for persons who want to present evidence 6. Applicant (or agent, attorney) presents his/her case. Give them ample time to present their evidence. Does/should staff give its recommendations when presenting overview? What are your meetings like?

20. How is a Q-J Hearing Conducted? How Should a Q-J Hearing Be Conducted? 7. Others who are sworn in can speak. Chair can set time limits CAREFULLY on length of non-applicants speaking 8. Persons who are sworn in can be cross-examined by persons with standing. What are your meetings like? 9. Hearsay (MORE ON THAT LATER) should not be relied upon in making decision. Let folks know what is “hearsay”. Staff/attorney can/should point out any procedural errors during PH

21. How Should a Q-J Hearing Be Conducted? 10. Prior to closing of public hearing, evidence presented is summarized by Chair or Secretary. Chair closes public hearing. No further evidence or testimony allowed (with one exception… more on that in Item #12). Only clarifications of evidence presented allowed at this point. 11. BOA deliberates and decides based on substantial, competent and material evidence presented at hearing… NOT HEARSAY! What are your meetings like?

22. How Should a Q-J Hearing Be Conducted? 12. Mutually agreeable conditions can be placed on approval. Conditions proposed by approval body should be fair, reasonable and land-use related. Discuss proposed conditions with applicant prior to motion being made. 13. Once motion with any conditions is made, take a vote on each required finding. 14. Final vote should be to adopt/reject the motion on the floor. If a “no” vote is made on any finding, you cannot approve variance/CUP. What are your meetings like?

23. How Should a Q-J Hearing Be Conducted? 15. You do not have to vote the same night that you close the PH. But vote must be made within XXX days from day PH was closed. What are your meetings like? What do General Statutes say about when decision must be rendered?

24. Conflicts of Interest • Situations in which a board member’s duty to act in the public interest clashes with the member’s inclination to advance his or her personal interest. • Can be financial conflicts, personal bias, or associations with those affected by a decision. • In NC, you must recuse yourself from a q-j hearing if you have: • Fixed opinion on matter not subject to change; or, • Undisclosed ex-parte conversation; or, • Close familial business or other associational relationship w/applicant; or, • Financial interest in outcome.

25. Conflicts of Interest What does a BOA member do if he/she has a conflict of interest on a particular case? 1. Do not participate in hearing, but still sit with the other BOA members; or, • Do not participate in hearing, but sit in audience; or, • Sit in audience and be able to give testimony; or, • 4. Leave the meeting room for the duration of the hearing.

26. Competent Evidence • S44 (SL 2009-421) • Applies to q-j decisions made on/after 1/1/10 • Does not allow reliance on lay witness testimony on: • Use of property that would affect property values • Increase in vehicular traffic that would pose a danger to public safety • Matters which only expert testimony would generally be relied upon • Let persons know if what they are saying is perceived as “hearsay”

27. Evidence or Hearsay? • A petition signed by 100 persons… • “I saw it with my own eyes…” • “My Mom, who couldn’t be here, is 84, has lived here all her life, and says she can never EVER remember a store being on the property…the applicant is lying!” • “I just moved here from Brooklyn and we NEVER would have allowed that there. This is totally illegal.” • “I live next door, and if you allow it, I will never be able to sell my house…”

28. Cross- Examination/Subpoenas • Any person who has given sworn testimony may be cross-examined by the opposing party or by a person who has standing on the matter. • Can occur at any time during hearing • Cross-examination likely only to occur in contentious cases. If known ahead, best to have County Attorney present to guide BOA. • BOA has authority to subpoena witnesses

29. Making Decisions • What were the facts heard during the case? • How do these facts relate to each of the findings? • Is there enough factual evidence to support each finding or your decision? • Does your decision make sense? Is it being reasonable?

30. Making Decisions • For BOA, all quasi-judicial decisions (including individual findings of fact), require 4/5 vote in favor of applicant. • Calculate decision based on the number of persons eligible to vote (i.e., this excludes vacancies and recusals, if no alternates, but not absences!) • For variance and special use permit applications, vote on each finding…ALWAYS! Does this also hold true for governing bodies that issue CUP’s? Source: David Owens presentation, Mooresville, NC, 12/4/09

31. How Many Votes Are Needed BOA MAKEUP: 1. Seven (7) REGULAR members and two (2) alternate members. HOW MANY “YEA” VOTES NEEDED TO RULE IN FAVOR OF THE APPLICANT?

32. Q-J Do’s and Do not’s Listen to the evidence that is being presented…Is it reasonable? Does it make sense? Ask questions…especially if something does not make sense! Don’t necessarily take everything at face value. Have ALL the evidence you need to make a proper decision. Consider continuing the case if you need more evidence. But do so ONLY IF NECESSARY…time is money! Do not come into a case with your mind already made up! If you do, YOU CANNOT TAKE PART IN THE HEARING.

33. Q-J Do’s and Do not’s Visit the site in question to better familiarize yourself with the case; BUT… Do not discuss or express your opinions on the case WITH ANYONE prior to case being heard! If you receive an email re: the case, delete it unopened; DO NOT READ OR RESPOND TO IT. Ask ONLY basic questions (limited to items contained on the application) about the case, if needed, from staff. Don’t ask them for their opinions. Give it your best shot…planning is not an “exact” science. If you disagree with other BOA members, that’s OK.

34. Q-J Do’s and Do not’s Make findings based on the evidence presented; Make decision based on findings; Make sure that there is enough discussion in the record to give a judge a reasonable opportunity to know why/how you made your decision; and Follow the ZO and the Rules of Procedure.

35. NEED ADDITIONAL INFORMATION? Bill Duston, AICP Chief Planner, N-Focus Planning 704 281-5497 bduston@nfocusplanning.org