Continuing the theme of yesterday’s posting, today I want to talk a look at a piece by David W. Owens, Professor of Public Law and Government in the University of North Carolina School of Government, titled Zoning Hearings: Knowing Which Rules to Apply.  This article is rather dated (1997) and does involve some peculiarities of North Carolina code and court rulings, but it still makes the overall point I’m shooting for.

Prof. Owens notes that there are two main types of land use decisions, much as we have noted in our Utah processes – legislative (policy-making), and administrative.  North Carolina, however, has apparently rolled what we call the quasi-judicial (appeals) process into the administrative process and applies essentially the same rules to both.  Bear with me here, it’ll help me get to my point.

For the legislative types of decisions, North Carolina handles those in much the same way that we do here.  Owens calls them legislative hearings, and says:

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. … 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.

So far so good.  North Carolina code has some more specific requirements about how notice is to be given for such hearings, and also requires that public hearings be held before the governing body, which Utah code does not require (it requires a public hearing for a legislative item only by the Planning Commission).

Where I want to spend some more time in this piece is on how administrative hearings are handled (North Carolina calls them quasi-judicial, because they lump their appeals hearings into the same category).

As we discuss so often in our land use training sessions, Utah code does not require that public hearings be held for administrative items, and yet so often our jurisdictions do.  Why?  I generally think it’s a habit carried over from the early days of land use planning and regulation before we had a more clear understanding of the different types of actions we undertake.  North Carolina code and court rulings apparently stipulate that these types of actions (they are called evidentiary hearings in NC) be carried out in a much more formal, prescribed manner.  From Owens:

It is important to remember the purpose of evidentiary zoning hearings. Unlike legislative hearings, they are not designed to solicit broad public opinion about how the board should vote on the matter before it. Rather, they provide an opportunity for the board to gather the facts it needs to apply policies already set in the ordinance. Therefore, while the notice requirements are not as broad, the standards on gathering evidence are much more strict than they are for legislative hearings.

…(Z)oning decisions arise in those situations where the decision maker must investigate facts, draw conclusions from them, and exercise some element of discretion in applying standards that previously have been set in the zoning ordinance to a specific situation. This includes decisions on variances, special- and conditional-use permits, and appeals of administrative determinations. (you can see here how, as I noted, administrative and appeal actions in NC are combined).

The differences for handling administrative hearings applies as well to the notices that are given:

The notice requirements for an evidentiary zoning hearing are narrower than those for a legislative rezoning hearing. The purpose of the notice for these evidentiary hearings is not to let the entire community know about a proposed policy being debated but to alert those most directly affected about an opportunity to present relevant facts to those who are applying a policy already set in the ordinance.

Still, the constitutional guarantees of due process must always be observed: the parties to the matter must be given reasonable notice of the hearing. Thus an individual mailed notice to the applicant and any affected party who has requested notice must be provided. It is also a good idea to provide individual mailed notice to adjacent property owners, even though it may not be legally required.

Owens notes that while these meetings are appropriately open to the public, there is no right accorded to the public to speak in such meetings.

Since the purpose of an evidentiary hearing is to carefully gather relevant facts to aid in decision making, restrictions on what can be heard and how it can be heard are applied to these hearings.

Owens makes it clear that the applicant in such an administrative hearing has all the normal rights of more formal legal proceedings, such as

the opportunity to offer evidence, cross-examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal.

This would obviously be handled by the applicant him/herself and people with them.  What is not so clear is how challenges to the proposed application would be handled, since there is usually no formal “opposing side” with a lawyer like in a courtroom.  I suppose rules could be put in place to require those who wish to make comments/present evidence to sign up ahead of time or something like that.  What is interesting in the North Carolina situation is that all speakers are to be sworn in, or at least “affirmed” prior to speaking, and are to be presenting evidence, not opinion or unsupported “facts.” Owens notes:

…it is inappropriate in an evidentiary hearing to consider nonexpert personal opinions or hearsay testimony.

At the conclusion of the meeting:

the board making the decision must adopt written findings of the facts upon which it is basing its decision. This contrasts with legislative zoning decisions, where no findings are required–those decisions are left to the sound discretion of the governing board, and the board is not required to explain why it made a particular decision. But since the purpose of an evidentiary hearing is to produce well-documented evidence to support a decision, the parties are entitled to know what the board concluded are the facts. Any judicial review of the decision is based on the facts as determined by the board making the decision, so the courts also need to know what the board concluded. This is done by requiring written findings of fact.

North Carolina’s approach may be a bit too legally formalized, but it may give us some lessons.  Taking what we get out of the piece I’ve described in today’s post, with what we learned from yesterday’s, maybe it’s time for us in Utah to think about adopting more clear and formal rules about the hearings processes for our land use decisions.  It may benefit everyone involved to understand better what is going on in our land use functions, why, and what it entails.  Let’s talk!