Zoning Hearings: Knowing Which Rules to Apply

Armed with petitions, lapel pins, and lawyers, 200 agitated citizens crowd into the courthouse to voice their objection to a proposed rezoning. They have been writing and calling the county commissioners ever since the notice of the hearing appeared in the local paper a few weeks ago. How should this hearing be conducted? Must everyone be allowed to speak for as long as he or she wants? May the board consider the strong personal opinions it is about to hear? What about the petitions and the calls the commissioners got last week? If the board decides on a compromise that gives petitioners only part of what they want, is another hearing required? When it comes time to make a decision, does the board have to justify its conclusion?

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]

Types of Zoning Decisions

Local governments are called upon to make myriad zoning decisions, ranging from a planning board's decision to recommend adoption of an initial zoning ordinance to a zoning enforcement officer's decision to issue a notice of violation when the terms of the ordinance have not been followed.

Two types of zoning decisions--legislative and quasi-judicial[2]--require formal public hearings.

Legislative zoning decisions affect the entire community by setting general policies applicable through the zoning ordinance. They include decisions to adopt, amend, or repeal the zoning ordinance (including the zoning map).

Quasi-judicial decisions involve the application of zoning policies already established in the ordinance to individual situations--for example, variances, special- and conditional-use permits (even if issued by the governing board), appeals, and interpretations. Quasijudicial decisions involve two key elements: the finding of facts regarding the specific proposal and the exercise of some discretion in applying predetermined policies to the situation.

Advisory zoning decisions, such as review of a rezoning petition by a county planning board, do not require a formal hearing. Nor do administrative decisions, such as staff issuance of permits for permitted uses, initial ordinance interpretations, and initiation of enforcement actions.

Types of Proceedings

Government uses two different types of proceedings to formally obtain comment on proposed zoning decisions: legislative hearings and evidentiary hearings. 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. Evidentiary hearings are an even more formal means of gathering evidence before a decision is made in the application of a zoning ordinance to an individual situation. These hearings are much like a court proceeding--witnesses present testimony, exhibits are submitted, detailed minutes are kept, and a formal written decision is rendered. Legislative hearings are required for legislative zoning decisions, while evidentiary hearings are required for quasi-judicial zoning decisions.

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.

Why Are There Different Rules?

Matters certainly would be simpler if there were just one generic "zoning hearing" that could be used whenever a city or county was required to hold a public hearing on a rezoning, a special-use permit, or a variance. Local officials could learn one set of rules and follow them for all zoning hearings. But that is not the way things work, and there are good reasons that different requirements must be followed for different types of zoning hearings.

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.)

When to Apply Both Sets of Rules

Local governments imposing special- or conditional-use district zoning must be especially attentive to these differences, because such district zoning involves simultaneous application of a legislative zoning decision (the rezoning to a new zoning district with no permitted uses, only special uses) and a quasi-judicial zoning decision (the decision on the special-use permit for a particular project). Therefore both types of hearings are required, and the local government must exercise particular care in observing whichever rules apply to each stage of its decision making.

Rules for Zoning Hearings Informal Public Meetings

A local government may decide that it is advisable to hold informal public meetings on zoning issues prior to conducting the required legislative or evidentiary hearing. These may be held for a variety of purposes: to gather public opinion prior to an update of the zoning ordinance or the land-use plan, to discuss potential policy changes, to explain a new provision of the ordinance, or to discuss a particularly controversial project or policy. They may be conducted by the governing board, the planning board, staff, or a neighborhood advisory group.

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.

Legislative Hearings

As mentioned above, state statutes and court decisions have established some detailed rules for hearings on legislative zoning decisions, which must be followed whenever a zoning ordinance is adopted, amended, or repealed. The requirements for notice of the hearing, its speakers, the information presented, and when an additional hearing is required are set out below.

Requirements for a Hearing

Since its adoption in 1923, North Carolina's zoning enabling statute has mandated a formal public hearing prior to the adoption or amendment of a zoning ordinance, as well as prior to repeal of zoning.[4] This hearing must be held by the governing board; a hearing by the planning board alone is not sufficient.[5] The hearing may be conducted as part of the governing board's regular meeting or it may be held as a special meeting at a separate time and place. The planning board may also hold formal public hearings, but it is no longer required by state law to do so.[6]

Newspaper Notice

A local government must publish notice of the governing board's required public hearing on the proposed adoption, amendment, or repeal of a zoning ordinance. G.S. 160A-364 for cities and G.S. 153A-323 for counties require that the notice be published in a newspaper of general circulation in the community once a week for two successive calendar weeks, with the first notice being published not less than ten nor more than twenty-five days prior to the hearing. The advertisement is usually run as a legal ad in the classified section of the newspaper, but some local governments purchase larger display ads to provide more prominent notice. While news stories about forthcoming zoning hearings are also common, they cannot take the place of the formal advertisement. Likewise, publication in a homeowners' association newsletter or other informal publication is permissible but may not substitute for newspaper publication. State statutes do not require posting of a sign on the site of a proposed rezoning, although a number of zoning ordinances add that requirement.

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]

Individual Mailed Notice

In 1985 the General Assembly amended G.S. 153A-343 and 160A-384 to require individual mailed notice to those parties most directly affected by certain legislative zoning decisions: "zoning classification actions." In 1987 this provision was amended to exempt the total rezoning of an entire community from the mailed-notice requirement. This exemption was itself modified in 1990 to require mailed notice in total rezonings if the rezoning involves "down zoning" or zoning to a less intense use.[11] (See Table 2.)

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]

Speakers and Evidence

Public hearings on legislative zoning decisions must be conducted in a fair and impartial manner, but the formalities of an evidentiary hearing--oaths, exhibits, cross-examinations, avoiding gathering evidence outside of the hearing, and the like--need not be observed. After all, with these hearings the governing board is receiving comments, not hearing evidence.

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

adopt reasonable rules governing the conduct of the public hearing, including but not limited to rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing.

Therefore reasonable rules can be established to limit the number of speakers and the amount of time each speaker is given, provided that the hearing is conducted in a fair and reasonable fashion. An example is provided in Freeland v. Orange County,[15] in which 500 citizens attended the required public hearing on the adoption of zoning for the Chapel Hill township. The chair allotted one hour each to the proponents and opponents of the zoning ordinance, with each side also having fifteen minutes for rebuttal. Some sixteen proponents and fifteen opponents were heard. By a show of hands, it appeared that those at the hearing were opposed to the adoption of zoning by a four-to-one ratio. About 200 persons indicated that they wished to speak but were not allowed to because of the time limitation. The court upheld this procedure, ruling that the legislative intent was to mandate a hearing and provide a "fair opportunity" for those in attendance to present their views. The governing board is allowed, however, to establish an "orderly procedure" for the hearing, as "[t]he General Assembly did not contemplate that all persons entertaining the same views would have an unqualified right to iterate and reiterate these views in endless repetition."[16]

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.

Additional Hearings

A question frequently arises as to whether readvertisement and rehearing are required if changes are made in the proposed ordinance at or after the hearing. The general rule is that an additional hearing is required only if there are substantial changes in the proposal after the initial notice.

A 1971 case, Heaton v. City of Charlotte, set the standard for determining whether an additional hearing is required. The court held:

Ordinarily, if the ordinance or amendment as finally adopted contains alterations substantially different (amounting to a new proposal) from those originally advertised and heard, there must be additional notice and opportunity for additional hearing. However, no further notice or hearing is required after a properly advertised and properly conducted public hearing when the alteration of the initial proposal is insubstantial. Alteration of the initial proposal will not be deemed substantial when it results in changes favorable to the complaining parties. Moreover, additional notice and public hearing ordinarily will not be required when the initial notice is broad enough to indicate the possibility of substantial change and substantial changes are made of the same fundamental character as contained in the notice, such changes resulting from objections, debate and discussion at the properly noticed initial hearing.[17]

In this instance, the court noted that the notice was broad enough to indicate that changes might be made, the changes were consistent with the fundamental character of the noticed proposal, and the changes were made as a result of comments received at the hearing. This led the court to conclude that an additional hearing "could have resulted only in repetitive statements by the same parties or parties similarly situated. . . . The very purpose of the public hearing was to guide the City Council in making changes in the original proposal consistent with the views reflected at the public hearing. This is exactly what was done."[18] So, if in response to comments raised at the hearing the city council rezones less land than was requested or rezones it to a less intense category, a new hearing generally is not required.

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]

Evidentiary Hearings

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.

Requirements for a Hearing

Quasi-judicial zoning 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. These decisions may be made by the governing board, the board of adjustment, or the planning board, depending upon how the individual zoning ordinance involved is structured.

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]

Notice of Hearings

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. This is true even though there may be broad public interest in the outcome of the decision.

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.

Speakers and Evidence

The principal difference between legislative and evidentiary hearings arises in how speakers and evidence are handled. 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. These standards apply to any board making a quasi-judicial zoning decision, even the governing board. This places a particular burden on city councils and county boards of commissioners, which are usually more accustomed to conducting less formal hearings on legislative matters.

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:

Notwithstanding the latitude allowed municipal boards, . . . a zoning board of adjustment, or a board of aldermen conducting a quasi-judicial hearing, can dispense with no essential element of a fair trial: (1) The party whose rights are being determined must be given the opportunity to offer evidence, cross-examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal; (2) absent stipulations or waiver such a board may not base findings as to the existence or nonexistence of crucial facts upon unsworn statements; and (3) crucial findings of fact which are "unsupported by competent, material and substantial evidence in view of the entire record as submitted" cannot stand.[22]

If critical factual findings in a quasi-judicial zoning matter are based on unsworn testimony or hearsay evidence, the decision may be overturned by the courts and the matter sent back for a new hearing.[23] If all the parties agree, however, the right to have witnesses under oath may be waived.[24]

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.

Additional Hearings

With quasi-judicial land-use decisions, such as variance requests and special-use permits, the doctrine of res judicata applies, and a board may not reopen and rehear a case previously decided.[29] There is an exception if there is some material change in conditions, such as a new road being constructed at the site, additional development near the site over time, and the like.[30] Also, appeals of quasi-judicial zoning decisions go directly to the courts. It is not appropriate to seek a second evidentiary hearing before a different local board, such as appealing a board of adjustment decision to the governing board.

Conclusion

Zoning hearings can be controversial, emotional, and confusing. Often the stakes are high for everyone involved. It is therefore important that these hearings be conducted in a fair and lawful manner. This requires that the local government body responsible for the hearing always keep in mind what type of zoning decision is involved, what type of hearing is required for that type of decision, and what the ground rules for that hearing are.[31]

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.

Addendum

After this article was published, the 1993 General Assembly adopted amendments to G.S. 153A-343 and 160A-384 regarding individual mailed notices (1993 N.C. Sess. Laws ch. 799). This statute repealed all of the local laws providing exemptions for mailed notices of proposed zoning classification changes, including nine additional exemptions that had been adopted earlier in the 1993 session. This new statute is effective January 1, 1994 (effective January 1, 1995, for Forsyth County and its municipalities). Local governments have the option of moving up this effective date to any time after July 23, 1993, simply by adopting an ordinance setting forth the earlier date.

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:

1. 1. a total rezoning of all property within a city or within a zoned area of a county, unless the rezoning is to a less intensive category;
2. 2. an initial zoning of an entire zoning jurisdiction area;
3. 3. a zoning classification action that directly affects more than fifty properties, with at least fifty different property owners;
4. 4. a reclassification that is a zoning text amendment; or
5. 5. a zoning classification done as part of adopting a mandated water-supply watershed protection program.

Where these five exceptions apply, a substitute notice is required in lieu of the individual mailed notice. The substitute notice consists of both publication of a half-page newspaper advertisement for four successive weeks and the posting of a prominent sign at the site of the proposed rezoning. Also, individual mailed notice still has to be provided to those affected landowners who reside outside the newspaper's circulation area.

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 ___.

Table 1
Key Differences between Legislative and Evidentiary Zoning Hearings

Table 2 Summary of Requirements for Mailed Notice of Proposed Zoning Classification Actions

Notes

1. A more detailed discussion of the legal issues addressed in this article can be found in the author's forthcoming Institute of Government publication, Legislative Zoning Decisions: Legal Aspects. The book will be available in summer 1993.

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.