Consider another situation. On the same night, a few miles away, a city council is holding a hearing on a special-use permit application for a controversial project. This hearing room is also packed with angry neighbors, and the council members have to struggle with most of the same questions, plus a few more. Does everyone who speaks need to be under oath? Does there have to be a transcript of the hearing? Since the city's zoning ordinance calls for this decision to be made by the city council instead of a board of adjustment, can informal procedures be used?
The answers are different in these two situations. They illustrate the two different types of zoning hearings, which have different purposes and rules of conduct. Because both types are commonly called "public hearings," the difference is confusing to those attending as well as those conducting the hearings.
Zoning decisions can profoundly affect landowners, neighbors, and the entire community--often with a significant impact on property values, the character of neighborhoods, and even the future quality of community life--so the law imposes special requirements to assure the opportunity for full and open discussion of proposed zoning decisions. These requirements go well beyond what is required for most other city and county ordinances.
This article distinguishes the two main types of zoning hearings and lays out the ground rules for how each should be conducted.[1]
Two types of zoning decisions--legislative and quasi-judicial[2]--require formal public hearings.
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.
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.)
An informal public meeting is just that. It is not a formal hearing; it is not mandated by statute. While it needs to be conducted in a fair and reasonable manner, it is not subject to the legal restrictions that apply to the legislative and evidentiary hearings discussed below.[3] So the local government is free to set whatever reasonable ground rules it chooses for publicizing and conducting these public meetings.
The published notice must be sufficiently detailed to allow a citizen to determine what is being proposed and whether he or she would be affected.[7] This does not mean that it must contain a legal description of the property affected,[8] nor that the text of the proposed ordinance be published.[9] But enough detail must be printed to let a person know the nature of the zoning change being proposed and to clearly describe the property involved (for example, by giving the street address). Just listing the ordinance number with the date and time of the hearing will not suffice; the court of appeals held such a notice to be inadequate.
By reading the notice, even the most diligent owner of property . . . would have no reasonable cause to suspect that his property might be affected by the City's contemplated amendment to its ordinance. To be adequate, the notice of public hearing required by G.S. 160A-364 must fairly and sufficiently apprise those whose rights may be affected of the nature and character of the action proposed.[10]
Most aspects of the mailed-notice requirement are clear. The notice should include the same information contained in the published notice, should advise persons of the proposed zoning change, and should be mailed in time for receipt a reasonable time before the hearing. The mailed notice need only be made by first-class mail. It does not have to be registered or return-receipt mail. Some zoning ordinances go beyond this to require certified mail, and some zoning offices do so as a matter of office policy, but that is not required by statute. Also, the notice is to be mailed to the owners as identified by the county tax records; an updated title search is not required. If there are no tax maps available for the area, the mailed-notice requirement does not apply.[12]
All rezonings that amend zoning district boundaries require mailed notice. In general, it is also required for the application of new overlay zones, the application of zoning to new extraterritorial areas, and the initial adoption of zoning. Mailed notice usually is not required for most routine zoning text changes, since they do not affect the basic zoning classification of property.[13]
The mailed notice also must be sent to all "abutting" property owners. As a matter of practice, some cities send a mailed notice to all who would qualify to sign a protest petition whether or not they have technically abutting parcels of land. This generally includes the owners of both the property being rezoned and the property within 100 feet (excluding abutting rights-of-way) of that property.
The statute does not require the local government to do the mailing if it is not initiating the rezoning. Several zoning ordinances place much of the administrative and cost burden on the party requesting a rezoning, by requiring that person to provide a certificate that the mailing was done or to provide stamped, addressed envelopes to the local government to deposit in the mail. Many other local governments require that a list of those to be mailed notices be provided as part of any petition for a rezoning.
The mailed-notice requirement has been subject to more modification by local legislation than any other mandated zoning procedure. Given the high cost of individual mailings when a substantial rezoning is proposed, eighty-five local governments have sought and received legislative relief. The most common modification has been to substitute publication once a week for four weeks of a large display advertisement in a local newspaper in lieu of mailed notices.[14]
The general statutory guidance for legislative public hearings is G.S. 160A-81 for cities and G.S. 153A-52 for counties. The statutes allow the governing board to
Given that the purpose of a legislative hearing is to broadly solicit public opinion, there is no problem with receiving petitions, hearing personal opinions, or with board members' talking to members of the public about the issue prior to the hearing. This is an important distinction between a legislative hearing and an evidentiary hearing. Also, unlike evidentiary hearings, no written findings of fact or explanation of the decision is required.
A 1971 case, Heaton v. City of Charlotte, set the standard for determining whether an additional hearing is required. The court held:
Occasionally lengthy legislative zoning hearings are recessed and continued at a subsequent meeting. In this situation no additional public notice is required. G.S. 153A-52 and 160A-81, the general provisions on public hearings, specifically allow hearings to be continued without further advertisement.[19]
Many zoning ordinances limit additional hearings after a decision is made on a rezoning proposal by establishing a minimum waiting period between consideration of rezoning proposals. A typical provision would be that once a rezoning petition has been considered for a particular parcel, no additional rezoning petitions will be considered for a set period, most frequently six or twelve months. These mandatory waiting periods have been upheld by the courts.[20]
The courts have held that the constitutional requirements of due process mandate that all fair trial standards be observed when quasi-judicial zoning decisions are made, no matter which local board is making the decision. This includes an evidentiary hearing with the right of the parties to offer evidence, cross-examine adverse witnesses, inspect documents, have sworn testimony, have the decision based only on evidence that is properly in the hearing record, and have written findings of fact supported by competent, substantial, and material evidence.[21]
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. However, the detailed newspaper notice and individual mailed-notice provisions in the zoning enabling statute do not apply to evidentiary hearings for quasi-judicial zoning decisions. Some local governments have voluntarily put these same requirements into their zoning ordinances for evidentiary hearings, and once in the ordinance those notice requirements are binding.
In the leading case on this subject, Humble Oil & Refining Co. v. Board of Aldermen, which involved the denial of a special-use permit for a gas station by the governing board in Chapel Hill, Justice Susie Sharp set forth the key requirements for an evidentiary zoning hearing:
A question arises occasionally as to whether attorneys need to be under oath when making a presentation in an evidentiary hearing. If the attorney is just summarizing evidence presented by others and making legal arguments for his or her client, there is no need to be under oath. On the other hand, if the attorney is offering evidence directly, he or she would need to be sworn like any other witness. The court tolerates but strongly discourages an attorney from serving both as a witness and an advocate in the same case.[25] Likewise, if the city or county staff is presenting evidence to the board in an evidentiary hearing, they should also be under oath.
Oaths for witnesses testifying at these evidentiary hearings may be administered by the chair of the board or any notary.[26] Witnesses may affirm rather than swear. All individuals likely to testify can be administered the oath together at the beginning of the hearing in order to expedite matters. If this is done, each witness should be reminded of the oath at the outset of his or her testimony.
Additional rules apply to assure that evidentiary hearings are conducted fairly. All of the parties to an evidentiary hearing have a right to know all of the evidence being considered by the board. Therefore it is improper for a board member to discuss the case or to individually gather evidence outside the hearing. If a board member has prior or specialized knowledge about a case, that should be disclosed to the rest of the board and the parties during the hearing.[27] Also, it is inappropriate in an evidentiary hearing to consider nonexpert personal opinions or hearsay testimony.
At the conclusion of an evidentiary hearing, 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.
Since any subsequent judicial review is based on the record established in this hearing, it is important to keep detailed records of evidentiary hearings. Sound recording or a verbatim transcript of these hearings is not required.[28] Many boards do make audio tapes of these hearings in case a transcript is later desired. However, handwritten records and detailed summary of the testimony received are acceptable. Special care should be taken to ensure that the clerk to the board retains exclusive custody of any exhibits presented. The exhibits and record of testimony should be retained for at least the period within which a judicial challenge can be filed--thirty days after notice of the decision is filed and communicated to the parties--and the matter resolved.
It is also important that this information be communicated clearly to the participants in the hearing. Landowners, neighbors, and citizens need to understand what these rules are and why they exist in order to participate effectively in zoning decisions. Each zoning hearing should open with a brief explanation of the rules that must be followed and their purpose. A written summary of the hearing ground rules can also be provided in advance to the parties to the hearing.
There will never be complete agreement on how zoning decisions should come out, and there will always be rooms full of people eager to make their strong opinions known to the boards making these decisions. However, the boards' being mindful of the standards for conducting zoning hearings fairly and clearly communicating these standards to all involved will help make zoning hearings more understandable, more efficient, and fair for all concerned.
The new statute creates five exceptions to the requirement of sending an individual first-class mailed notice when a zoning classification action is proposed. The five exceptions are:
Also, the Supreme Court handed down a decision in County of Lancaster v. Mecklenburg County, ___ N.C. ___, 1993 N.C. LEXIS 403 (Sept. 10, 1993), after this article was published. In this case the court reaffirmed that evidentiary hearings are required for quasi-judicial zoning decisions. The court emphasized that it is the nature of the type of decision--rather than what it is called in the ordinance or who makes it--that controls whether this more formal decision-making process is required. Those zoning decisions that involve findings of fact and application of discretion (typically special- and conditional-use permits, variances, and appeals of administrative decisions) are quasi-judicial. The court in this case also addressed the standard for avoiding conflicts of interest in zoning decisions. The court held that with legislative zoning decisions, "where there is a specific, substantial, and readily identifiable financial impact on a member, nonparticipation is required. Additional considerations beyond these financial interests require nonparticipation in quasi-judicial zoning decisions. A fixed opinion that is not susceptible to change may well constitute impermissible bias, as will undisclosed ex parte communication or a close familial or business relationship with the applicant." Id. at ___.
| Legislative | Evidentiary | ||
|---|---|---|---|
| Notice of Hearings | Both newspaper notice and mailed notice to owners and neighbors are required. | Only notice to parties to the matter is required unless ordinance mandates otherwise. | |
| Speakers at Hearings | Number of speakers, time for speakers can be reasonably limited. | Witnesses presenting testimony can be limited to relevant evidence that is not repetitious. | |
| Evidence | None is required; members are free to discuss issue outside hearing. | Substantial, competent, material evidence must be put in the record; witnesses are under oath, subject to cross-examination; no discussion of the case outside the hearing is allowed. | |
| Findings | None are required. | Written findings of fact are required. | |
| Records | Regular minutes are satisfactory. | Detailed record of testimony is required; clerk should retain all exhibits during period of potential appeal. |
| Triggered by: | Zoning classification action |
| Sent to: | Owner of parcel and abutting parcels, as shown on county tax listing |
| How mailed: | First class |
| Exceptions: | Not required for total rezonings of entire jurisdiction (but even here must be sent to any property that is put in less intensive zone) |
| Verification: | Certification to governing board of mailing to be provided by person making the mailing |
2. In many respects this distinction is similar to the distinction between rule-making decisions and contested case decisions under the state's Administrative Procedures Act, G.S. Ch. 150B.
3. The open meetings statute does apply to these meetings and should be observed. See G.S. 143-318.9 to -318.18. Where a majority of the members of a board, council, or committee gather to conduct business or to deliberate, notice of the meeting must be provided and it generally must be open to the public.
4. The statutes that mandate hearings, G.S. 153A-323 and 160A-364, explicitly refer to adoption and amendment of zoning ordinances. The court has held that this also includes repeal of zoning provisions. Sofran Corp. v. City of Greensboro, 327 N.C. 125, 393 S.E.2d 767 (1990); Orange County v. Heath, 278 N.C. 688, 180 S.E.2d 810 (1971).
5. Keiger v. Board of Adjustment, 281 N.C. 715, 190 S.E.2d 175 (1972). See G.S. 153A-344 and G.S. 160A-387.
6. Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516, rev. denied, 295 N.C. 550, 248 S.E.2d 727 (1978). The county zoning statute does require a mandatory referral of a proposed zoning amendment to the planning board, but it is not required to hold a hearing. A number of zoning ordinances, however, still require planning board hearings; others provide for joint planning board and governing board hearings on rezoning proposals. If the zoning ordinance itself requires a formal planning board hearing, it must be held and should generally follow these rules for a legislative hearing.
7. Helms v. City of Charlotte, 255 N.C. 647, 122 S.E.2d 817 (1961); Walker v. Town of Elkin, 254 N.C. 85, 118 S.E.2d 1 (1960); Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527 (1978). These cases held that actual personal notice of a proposed rezoning is not constitutionally required nor is it sufficient to substitute for compliance with statutory requirements.
8. Capps, 35 N.C. App. at 290, 241 S.E.2d at 527.
9. Though not explicitly required by the statute, a copy of the full text of the proposed ordinance or amendment should be available for public inspection at the time the notice is published.
10. Sellers v. City of Asheville, 33 N.C. App. 544, 549, 236 S.E.2d 283, 286 (1977). By contrast, in In re Raynor, 94 N.C. App. 91, 379 S.E.2d 884, rev. denied, 325 N.C. 546, 385 S.E.2d 495 (1989), the court upheld the adequacy of a notice that stated its purpose was "to consider proposed zoning and proposed long-range land use plans within the area recently added to the Town's extraterritorial jurisdiction." The notice went on to provide a "rough description" of the area affected, using major streets as boundaries.
11. The legislature has also extended this mailed-notice requirement to some land-use regulations other than zoning. G.S. 143-214.5(d) requires cities and counties that adopt water-supply watershed protection ordinances under their general police powers to use the mailed-notice provision if the ordinance imposes requirements more stringent than the statewide minimum standards adopted by the Environmental Management Commission.
12. Frizzelle v. Harnett County, 106 N.C. App. 234, 416 S.E.2d 421, rev. denied, 332 N.C. 147, 419 S.E.2d 571 (1992). In this case, however, the ordinance itself required mailed-notice and posting, which was not done.
13. Note that a zoning text change that substantially changes the range of permitted uses in a district can have the same practical effect as a map change and in those instances may be covered.
14. Many of the modifications are of only temporary duration. This trend of local modification is continuing. Some thirteen bills were introduced in the 1993 General Assembly to provide mailed-notice exceptions to thirty-three local governments. A bill is also pending that would extend these alternatives to mailed notice to all local governments.
15. Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282 (1968).
16. Freeland, 273 N.C. at 457, 160 S.E.2d at 286.
17. Heaton v. City of Charlotte, 277 N.C. 506, 518, 178 S.E.2d 352, 359-60 (1971).
18. Heaton, 277 N.C. at 518-19, 178 S.E.2d at 360. See also Walker v. Town of Elkin, 254 N.C. 85, 118 S.E.2d 1 (1960); In re Issuance of CAMA Permit to Worthy, 82 N.C. App. 32, 345 S.E.2d 699 (1986).
19. Also, G.S. 160A-71(b1) provides that regular and special meetings of the governing board may be recessed or adjourned to reconvene at a time and place certain (the comparable county provision, G.S. 153A-40, contains a similar provision for regular county board meetings). G.S. 143-318.12(b)(1) in the state's open meetings law provides that if the time and place for reconvening are set in the properly noticed original meeting, no additional public notice is required.
20. See George v. Town of Edenton, 294 N.C. 679, 242 S.E.2d 877 (1978); Nelson v. City of Burlington, 80 N.C. App. 285, 341 S.E.2d 739 (1986); Clark v. City of Charlotte, 66 N.C. App. 437, 311 S.E.2d 71 (1984).
21. Humble Oil & Refining Co. v. Board of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974); Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879 (1963).
22. Humble Oil & Refining Co., 284 N.C. at 470, 202 S.E.2d at 137 (citations omitted).
23. See, e.g., Jarrell, 258 N.C. at 476, 128 S.E.2d at 879; Brummer v. Board of Adjustment, 81 N.C. App. 307, 343 S.E.2d 603, rev. denied, 318 N.C. 413, 349 S.E.2d 590 (1986).
24. Craver v. Board of Adjustment, 267 N.C. 40, 147 S.E.2d 599 (1966); Burton v. New Hanover County Board of Adjustment, 49 N.C. App. 439, 271 S.E.2d 550, cert. denied, 302 N.C. 217, 276 S.E.2d 914 (1981); Carter v. Town of Chapel Hill, 14 N.C. App. 93, 187 S.E.2d 588, cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972).
25. Robinhood Trails Neighbors v. Board of Adjustment, 44 N.C. App. 539, 261 S.E.2d 520, cert. denied, 299 N.C. 737, 267 S.E.2d 663 (1980). See also Rule 5.2, Rules of Professional Conduct of the North Carolina State Bar. This rule prohibits a lawyer from testifying as a witness in a case he or she is handling unless the testimony relates solely to an uncontested matter, is related to legal fees, or if refusal to testify would work a substantial hardship on the client because of the distinctive value of the lawyer in the particular case.
26. A standard oath may be used, such as, "Do you swear (or affirm) that the evidence you give shall be the truth, the whole truth, and nothing but the truth, so help you God?"
27. Crump v. Board of Education, 326 N.C. 603, 392 S.E.2d 579 (1990). It is important to distinguish personal knowledge, which can be considered if disclosed, from personal bias, which disqualifies a member from participation. Personal bias is present if the member has a fixed opinion that is not susceptible to change regardless of the evidence presented. Also, in Rice Assoc. v. Town of Weaverville Bd. of Adjustment, 108 N.C. App. 346, 423 S.E.2d 519 (1992), the court held that participation of a member with bias does not invalidate the decision if the applicant is not entitled to a permit under any circumstances.
28. Burton v. New Hanover County Board of Adjustment, 49 N.C. App. 439, 271 S.E.2d 550, cert. denied, 302 N.C. 217, 276 S.E.2d 914 (1981). The court of appeals has noted that while a verbatim transcript is not required, its presence would facilitate appellate review. In re City of Raleigh Parks and Recreation Dept., 107 N.C. App. 505, 421 S.E.2d 179 (1992).
29. Little v. City of Raleigh, 195 N.C. 793, 143 S.E. 827 (1928). See also In re J. H. Carter Builder, Inc., 95 N.C. App. 182, 381 S.E.2d 889, rev. denied, 325 N.C. 707, 388 S.E.2d 458 (1989) (rehearing by board of adjustment six weeks after original vote, made because chair wished to change his vote after reviewing the minutes, held improper because there had been no substantial change in the facts, evidence, or conditions).
30. In re Broughton Estate, 210 N.C. 62, 185 S.E. 434 (1936).
31. There are other important differences in how legislative and quasi-judicial zoning decisions are made beyond the differences in hearings discussed in this article. For example, there are different standards on conflicts of interest, voting majorities required, creation of vested rights, imposition of conditions, and the time limits for seeking judicial review.
The author is an Institute of Government faculty member who specializes in land-use law.
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The University of North Carolina at Chapel Hill