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5/5/2016 1 Quasi‐Judicial Decisions Clerks Institute Spring 2016 Adam Lovelady 1. Types of Decisions 2. Before the Hearing 3. Conducting the Hearing 4. Making the Decision
5/5/2016
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Quasi‐Judicial Decisions
Clerks Institute
Spring 2016
Adam Lovelady
1. Types of Decisions
2. Before the Hearing
3. Conducting the Hearing
4.Making the Decision
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TYPES OF DECISIONS
Legislative Quasi‐Judicial Administrative
Setting Broad Policy
Applying Standards with
Some Judgment
Objective Implementation
OrdinanceAmendment
(incl. Rezoning)
Special Use Permit Issuing Permits; Enforcement
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Quasi‐Judicial Decisions
• Special Use Permit or Conditional Use Permit
• Variance
• Certificate of Appropriateness
• Appeal of Administrative Decision
The board . . .
Must • Apply the established standards
• Decide whether the particular application meets the standards
Must not• Set new policy
• Gauge public opinion
• Decide based on personal preference
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Due Process Rights
• Notice
• Clear Standards
• Opportunity to be Heard
• Impartial Decision‐maker
• Right to Appeal
BEFORE THE HEARING
Notice
Bias
Ex Parte Communications
Conflicts
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Notice
• Mailed Notice
– Owner, applicant, and adjacent owners
– 10‐25 days prior to hearing
• Post a sign notice (same time frame)
• No published notice required
• Any Additional Ordinance Requirements
Bias
Board member cannot have a fixed opinion that is not susceptible to change
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Ex Parte Communication
• Contacts with a party outside of the hearing
• Should be avoided
• Must be disclosed
Conflicts of Interest
• a close familial, business, or other associational relationship with an affected person
• a financial interest in the outcome of the matter
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Discussion 1
CONDUCTING THE HEARING
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Recording the Hearing
– Detailed minutes or transcript required
– Audio or video tape advisable, not required
– If verbatim transcript requested, cost can be assigned to party requesting it
Roles
• Board Chair
• Board Members
• Staff
• Parties
• Attorneys
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Opening
• (Swearing In Witnesses)
• Description of the Hearing
• Description of the Standards
• Opportunity for Recusal
• Opportunity to Disclose Ex Parte Communication
Creating the Record
“Every quasi‐judicial decision shall be based upon competent, material, and substantial evidence in the record.”
• Burden of Production
• Documents
• Testimony
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Testimony
• Sworn Witnesses
• Factual Testimony
• Related to the Standards
• Not Personal Opinion or Unrelated Matters
Documents
• Application, staff report, supporting documents
• Documents from witnesses (photos, maps, studies)
• Clearly label each document
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Hearsay Evidence
Hearsay Testimony
• Statement made outside hearing offered at hearing to establish a fact
• Limitation: can accept, but not use as basis for key finding
• Can accept and use documents that are part of application, submitted without objection
Opinion Evidence
Expert Witnesses
• Property Values
• Projected Traffic Impacts
• Other technical matters
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Closing the Hearing
Discussion 2
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MAKING THE DECISION
Deliberation
Conditions
Written Decision
Appeals
Deliberate in Open Session
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Determine Facts
• Does the project injure property values?
• Is the hardship peculiar to this property?
Apply Standards
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Conditions
• Related to the standards
• May bring a development into compliance (that would have been denied otherwise)
Motion
• Approve, approve with conditions, or deny
• Reasoning related to the standards
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Voting
• Simple majority, generally
• 4/5 majority for a variance
• In calculation, do not count vacancies and excused members
Written Decision• Resolve contested facts• Accurately reflect action and reasoning of the board• May prepare draft decision prior to hearing• Final decision document prepared after the meeting• Signed by chair or authorized member• Need more than meeting minutes
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Notice of Decision
• Email, first class mail, or personal delivery
• Staff certifies delivery for the record (i.e., clerk affidavit)
Appeals
• 30 days from effective date
• To Superior Court
• On the record
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Variances
Must show “unnecessary hardship”
Hardship must be peculiar to property
• Not personal circumstances
• Not common to neighborhood or public
Hardship must not be self created
Special and Conditional Use Permits
Typical standards
No significant adverse impact on neighboring property values
Harmonious or compatible with neighborhood
Not endanger public health or safety
Comply with plans and ordinances
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Appeals of Staff Decisions
Initiating appealsOnly final, binding, written staff determinations can be appealed to BOA
Only by persons with standing
Filed with city clerk
Timing
Must appeal within 30 days of staff decision
Owner can start time to appeal for neighbors by posting notice of decision
Appeals of Staff Decisions
Record goes to board and applicant prior to hearing
Staff must be present at hearing as witness
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Questions
Adam Lovelady
919‐962‐6712
David Owens
919‐966‐4208
