Notice of Hearings: Evidentiary Hearings for Quasi-judicial Decisions
[Adapted from Owens, Land Use Law in North Carolina (4th ed., 2023)]
When a local government board makes a quasi-judicial decision – deciding on a special use permit, a variance, a certificate of appropriateness, or an appeal of a staff decision – it must hold an evidentiary hearing. Prior to 2013, the statutes required that the local government provide “reasonable notice" of the hearing and left it to each local government to define just what that notice would be. State law now sets a uniform standard of the minimum notice that must be provided.
Required Mailed and Posted Notice
The constitutional due-process rights for quasi-judicial matters require that timely notice of the opportunity to be heard be afforded to interested parties.[1] Since 2013 the statutes have also included specific, detailed rules regarding published and mailed notice of evidentiary hearings required for quasi-judicial decisions.
Richardson v. Union County Board of Adjustment [2] addressed the issue of proper notice for quasi-judicial zoning decisions. The court noted that the zoning statutes at that time required “due notice” of a hearing, while the zoning ordinance involved provided for a ten-day mailed-notice requirement and specified how that period is to be computed. The court held that the more specific ordinance requirements control rather than G.S. 1A-1, Rule 6 (the more general state law regarding computation of notice). The court has also held that it is necessary for the party claiming inadequate notice of a hearing to specify how it would have benefited from a later hearing in order to establish that it was prejudiced by lack of notice.[3]
G.S. 160D-406(b) sets a uniform notice requirement for evidentiary hearings on quasi-judicial matters. These notice provisions are similar to those required for a zoning-map amendment, with the exception that newspaper published notice is not mandated. Notice of the hearing must be mailed to the person who submitted the application that is the subject of the hearing, the owner of the affected property (if that is not the person requesting the hearing), adjacent owners, and anyone else entitled to mailed notice under the local ordinance. A notice of the hearing must be posted on or adjacent to the site that is the subject of the hearing. Both the mailing and posting must be done ten to twenty-five days before the hearing.
G.S. 160D-406(b) provides that an evidentiary hearing may be continued without additional notice if the time, date, and place of the continued hearing is announced at a duly noticed hearing that has been convened. Also, if a quorum of the board is not present at the announced date and time of a properly noticed evidentiary hearing, then the hearing is automatically continued to the next regular meeting of the board, and no additional notice of the hearing is required.
Published Notice – Local Option
Some ordinances impose additional notice, such as published notice, posting of the site, or mailed notice to everyone who owns property within a specified proximity to the property involved. While none of these are mandated by the constitution or state statute, once they are incorporated into the ordinance, they are binding and must be followed.
Open Meetings Law Requirements
The Open Meetings Law also applies to the meetings at which the evidentiary hearing is conducted. G.S. 143-318.10 requires that a copy of the regular meeting schedule must be filed in a central location and posted on the local government website (if it has one). A special meeting held outside the regular meeting schedule requires posting notice of the meeting on the local government’s bulletin board, posting notice on the local government’s website, and mailing a copy of the notice 48 hours in advance of the meeting to each person who has made a request for notification. An emergency meeting, which would be rare for a quasi-judicial hearing, requires notice to the local news media.
Related blog posts:
Mandated Notices in Land Development Regulations
By: David Owens Published on: 01/28/14
[1]. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
[2]. 136 N.C. App. 134, 523 S.E.2d 432 (1999). See also Jones v. Flowers, 547 U.S. 220 (2006) (notice required in a condemnation proceeding). Note that a person claiming a procedural-due-process right to notice generally must qualify as a party. Absent a statutory mandate, neighbors generally have no constitutional right to notice of permit applications or appeal hearings.
[3]. Symons Corp. v. Quality Concrete Constr., Inc., 108 N.C. App. 17, 422 S.E.2d 365 (1992); J.D. Dawson Co. v. Robertson Mktg., Inc., 93 N.C. App. 62, 376 S.E.2d 254 (1989); Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).
