HomeMy WebLinkAboutAgenda - 09-08-94 ORANGE COUNTY COMMISSIONERS
P.O. Box 8181
HILLSBOROUGI1, N.C.
27278
Moses Carey, Jr. 732-8181
Alec M. Cordon 968-4501
Stephen H. Halkiotis 688-7331
Verla C. Insko 227-2031
Don Willhoit 644-3004 (Fax)
AGENDA
BI-MONTHLY WORK SESSION
THURSDAY
SEPTEMBER 8 , 1994
This meeting will be held in the meeting room of the
Government Services Center in Hillsborough, North Carolina.
The agenda is as follows:
1. Review and confirmation of the 1994-95 BOCC goals
2 . Board Policy and Procedures for work sessions and
public participation on regular agenda decision
items after the public hearing
9/6/94
YOU COUNT IN ORANGE COUNTY !
1
ORANGE COUNTY'S PROCEDURE FOR RECEIVING CITIZEN COMMENTS
1. An item is presented at public hearing.
2 . Citizens give comments at the public hearing and may
offer written comments to the Board of Commissioners or
the Planning Board up until the time the Planning Board
meets to consider this item.
3 . The Planning Board considers all comments received at the
public hearing as well as written comments and makes a
recommendation to the Board of Commissioners.
4 . This item is then placed as a "decision" item on the
Board of Commissioners' regular agenda.
5. At this meeting citizens attend with the expectation that
their comments will be heard again prior to the vote.
VARIOUS OPTIONS AND PROCEDURES FROM OTHER COUNTIES ARE LISTED
BELOW:
OPTION 1 (Buncombe County) Same as above except that at the time
the item is placed as a "decision" item, the Board holds another
public hearing prior to the vote.
OPTION 2 (Cleveland County)
1. The first public hearing is held by the Planning Board.
2 . The item with a recommendation from the Planning Board is
then presented to the County Commissioners.
3 . The County Commissioners may set another public hearing
if it is a controversial item or they feel they need
additional citizen input.
4 . If a second public hearing is held, the BOCC may make a
decision or refer it back to the Planning Board for
further deliberation and recommendation.
5. If the BOCC feel another public hearing is not necessary,
they may go ahead and vote on the item.
OPTION 3 (Guilford County)
Their Planning Board, by Legislative action, has the authority
to rezone property. However, cases must receive a 5/7 vote.
Anything under, and it automatically comes to the BOCC.
Watershed waivers and text amendments automatically come with
the Planning Board's recommendation.
If the Planning Board approves or denies a case, there is the
right of appeal. If appealed, a case is heard by
Commissioners. If not appealed, the decision of the Planning
Board stands.
2
Guilford County (continued)
They recently adopted a new policy as stated below for
handling speakers.
1. Proponents of the amendment are allowed a total of 30
minutes, notwithstanding the number of persons desired to
be heard.
2 . Opponents of the amendment are allowed a total of 30
minutes, notwithstanding the number of persons desired to
be heard.
3 . BOCC then ask questions of either side or staff - no time
limit.
4 . Each side then has a total of five minutes in rebuttal.
5. BOCC then vote.
6. The Board has the option of extending the time for each
side by majority vote.
The key is letting the citizens know ahead of time. They put
their policy in the letters to property owners, adjoining property
owners and also on the agenda.
OPTION 4 (Iredell County)
For rezoning requests, Iredell County uses the following
procedure:
1. Request is received by the planning staff.
2 . Property is posted; surrounding property owners notified
by mail of the request.
3 . Planning Board meets, reviews, and makes a recommendation
to the County Commissioners.
4. Legal notice put in newspaper.
5. BOCC hold public hearing on the rezoning request.
6. BOCC act on the request, usually as recommended by the
Planning Board, sometimes with modifications.
Occasionally it will be returned to the Planning Board
with a request for further study.
For other matters such as road names, house numbering,
amendments to the zoning ordinance and watershed ordinance, the
public hearings are advertised as block ads, not legal notices, by
the Planning Board. Public comments are received by the Planning
Board and a recommendation is forwarded to the BOCC for decision.
OPTION 5 (Durham County)
1. Request is received and appropriate notices are sent to
surrounding property owners with a brief explanation of
what is proposed by applicant.
2 . Presentation is made by staff to the BOCC with a staff
recommendation.
Durham County (continued)
3
3. Questions by BOCC to clarify information
4 . Proponents are allowed 15 minutes total.
5. Opponents are allowed 15 minutes total.
6. Additional time may be allowed by the Chair.
7. BOCC may question the proponents or opponents.
8. Motion to refer to the Planning Board or vote may be
taken.
Public Address to the Board is as follows:
Any member of the public who wishes to address the Board
regarding an issue which does not appear on the agenda and which
does not require a public hearing shall make a request to the Clerk
to the Board at any time prior to the meeting. The Clerk shall
notify the Chairman of such request prior to the beginning of the
meeting. The Chairman will then inform the Board for its
consideration of the request at the outset of the meeting. The
Board shall have complete discretion to determine whether it will
hear the individual or group.
Any member of the public who wishes to address the Board
regrading an agenda item shall sign the sign-up sheet at the rear
of the room, clearly indicating the item number to which they
intend to speak.
Information sheets outlining the process for the public's
participation in Board meetings will also be available in the rear
of the room.
OPTION 6 (Randolph County)
1. The Planning Board has a public hearing and makes a
recommendation to the BOCC.
2 . The BOCC may have another public hearing if it deems
necessary.
3 . The Planning Director presents the information on the
request, what the Planning Board's reasons were for their
recommendation and any conditions they recommend be
placed on the rezoning request.
OPTION 7 (Davidson County and Craven County)
1. All zoning amendments to the Planning Board first. They
hold a public hearing and make a recommendation to the
BOCC.
2 . The BOCC have one meeting a month for nothing but zoning
items.
3 . At this meeting, the BOCC hold another public hearing and
set specific times for those in favor and those against
to be heard, depending on how many items they have and
how many people want to speak.
4 . In almost all cases, the BOCC take action on the zoning
matter. In a few cases, the recommendation is sent back
to the Planning Board for further consideration.
4
OPTION 8 (Catawba County)
1. The County Planner will give the introductory background
statement and Planning Board report.
2 . The representatives of the applicant will present the
request.
3 . Representatives for organized groups both in favor and
opposing the request will have fifteen minutes to present
their case.
4 . Each representative will have five minutes to rebut.
5. Individuals wishing to be heard on their own behalf will
have three minutes to speak.
6. The representative of the applicant will have five
minutes for a final statement.
7. The BOCC either takes action or refers it back to the
Planning Board for further study.
PUBLIC COMMENTS
1. ITEMS ON THE PRINTED AGENDA
a. Items listed for the first time
b. Items that have already gone to public hearing
2. ITEMS NOT ON THE PRINTED AGENDA
3. PUBLIC HEARING ITEMS ON THE REGULAR AGENDA
4. PUBLIC HEARING ITEMS AT THE QUARTERLY PUBLIC HEARING
5, CITIZEN COMMENTS AT WORK SESSIONS INCLUDING BUDGET WORK
SESSIONS
ji
SUGGESTED ADDITIONS TO 1994-95 GOALS
1. VOLUNTEER SATISFACTION SURVEY
Conduct a survey of former volunteers(members of OC boards, committees, task forces, etc.)to determine level of
satisfaction and suggestions for improvements. For example, was their service adequately recognized, should they
have had more(or less)involvement by the BOC, if not satisfied what would they suggest to improve the
experience, etc.
2. COUNTY GOVERNMENT COMPUTER FUTURE
Is OC going to have an on-ramp to the Information Hwy? Why haven't County offices moved to a pc network-
based Windows operating environment? I would suggest a short-lived committee of citizen "experts"to consider
the alternatives if there is not a consensus that we should move to the Windows environment
3. EFLAND SEWER
• Proceed with engineering work to identify parcels that may reasonable be served by the County's sewer line, to
include original petition signees.
• Request Economic Development Commission to prepare an economic development plan for the Buckhom
Interchange area based on the assumption that sewer service to the area will be provided.
• Prepare a financing strategy/options for funding the expansion of the Efland sewer system, including
consideration of establishing a sanitary tax district.
4. SCHOOL BOARD WORK SESSIONS
Schedule a series of work sessions with the school boards to bring about a common understanding on key issues
and to continue long-range planning efforts. These discussions may help to alleviate the crisis atmosphere that
frequently surrounds the annual budget work sessions. Key issues that I would like to be considered for work
sessions include:
• The technology programs for each system, including means of providing technical support for maintenance
and development.
• Teacher salary schedules, turnover rates, and prospects for a common pay plan for both systems.
• Emerging educational programming theories and implications for space and staff.
• Identification of future school sites(50 yr plan?),plan for acquisition,and interim use for recreation and
parks.
Don Willhoit
OC_G&O/0994
Zoning Heathigs:•
Knowing Which Rules to A pp l y
David W. Owens
With addendum
A reprint from Popular Government
Vol. 58, No. 4 (Spring, 1993), pp. 26-35.
•
Zoning Hearings:
Knowing Which Rules to Apply
David W. Owens
•
Armed with petitions,lapel pins,and lawyers,200 agi-
tated citizens crowd into the courthouse to voice
their objection to a proposed rezoning.They have been
-........ -..-.,1E . : ". t _ :..:.:. . . • :
and calling the county commissioners ever since
.. , . . .
• the notice of the hearing appeared in the local paper a
10writing
.
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 awa y,a city council is holding shearing on aspecial-
..,::,.,::t.;,.•. t;. use permit application for a controversial project.This,, . hearing room is also packed with angry neighbors,and the
., oTicE
::::::::,,,,,,,,,,,,,,,,,,, -.,...,,-- N .....„,,.... ..
council members have to struggle with most of the same. ::.,:....::„.„.....::::::::::::,.....:....„."....
..„....„,..............` aitF} $% t at < f %Yt4t Y> }4 4}n� questions,plus a few more.Does everyone who speaks
r.. < ` t.:::4.::. .:;.:,.`db:::...'..�:.: .'::'}.'.:'::':.,:' 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?•
. x The answers are different in these two situations.
e a 41.i:::::': } • They illustrate the two different types of zoning hear-
. ........v:;:::.
•••••••'� 4` ings,which have different purposes and rules of conduct.
•: r Because both types are commonly called"public hear-
r ;
a 4 a ings,"the difference is confusing to those attending as
t>: ;>,�a>x x v. well as those conducting the hearings.
y x°}�'a .. ° t a Zoning decisions can profoundly affect landowners,
:.;• k rs,a entire community—often with a sig-
neighbo nd the enti
::}::r::���<:�:::::;.;<::::>::»:<:.;.>:.;:<:.}}:.}%:is::t4::4}}at.;.:::.;.:.;:..:,.. ...: • '.,..'.:.'.:..': .'}; nifican impact on
.::>.>;:.>:,.:•.}:•.:>,.;::;::a..:.::.;....;. .4 `.�..}.:.;:• .: ..�.,}aX<::•::<t;.::<;•:•:::•;::a:;t:r}::;:::t:> t p ct o property values, the character of
'y:.;..:::•.Y:tiit,:j:::;:•:•:i:i%i::t,:,•Y.:`v':•i:':::ti1:ri tt4i::}: :: .......:.:.yt::.::,},...:.;::.....:;.. ...:•::..::.::::..:..•
:.;:�:.:;•:}.'.>'.:>}'.:.}}.:>'.>�::�<•}.::.;'.}t:.;t'•>:;;:;:%•::;..::.. ::~f }:;.::.:>:;.:.<::�.:,:.}•.:r,::::,:>r:�;::.a,;.<;,. ..,.}..:..,,.,,.:�.� neighborhoods,and even
}:4 }:t::.}:,::,,.,..:;... ;..' gh a en the future quality of commu-
v
.;:?':::;::>::::}:::.:;.: :::t;x.}}:w:o::,:x:•}:•�:a:4:•}x aaa>}}a rr X}'•}'•t%}:'::i£+'.}'}:'
}}:•$0::4}•,.4{} :$Y:iio•.•.;•:: :•4:•:•,, •v.$•..k.:: ::�.,.... ...•,• ...r..}•: .. nity life—so the law imposes special requirements to
::.a: :t.•;v.•X:•}:,.wr•'..�'•.•••1>.:.t•:%..w.•O'• �X:a'.S -1 P P� q
•
The author is an Institute of Government faculty member who
specializes in land-use law.
Highly visible,bright yellow signs are posted at or near the site
of a proposed rezoning in Charlotte.
• ♦,WIXYK�u AWi ' I
_ . p.
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 x>�. ' ir
ordinances. >� `< ad r x :
This article distinguishes the two main types of zon- . 1
ing hearings and lays out the ground rules for how each f
• should be conducted.' .`
Types of Zoning Decisions
Local governments are called upon to make myriad '' ° "
zoning decisions,ranging from a planning board's deci-
sion to recommend adoption of an initial zoning ordi- °• °"
nance to a zoning enforcement officer's decision to issue ; * * -
a notice of violation when the terms of the ordinance `',, 9
have not been followed. 44 a" t
Two types of zoning decisions—legislative and quasi-
.* judicial2—require formal public hearings. In 1991 developers petitioned the Greensboro city council to rezone
'/ the property shown above and Grant a conditional-use permit to allow
• Legislative zoning decisions affect the entire commu- the building of a large entertainment complex,Celebration Station,
pity by setting general policies applicable through the on land adjacent to I-40 previously zoned for institutional use.The
zoning ordinance. They include decisions to adopt, zoning board denied the petition,but the city council approved the
amend,or repeal the zoning ordinance(including the project on appeal.
zoning map). In 1992 the Raleigh city zoning board ordered the Neuse Baptist
• Quasi-judicial decisions involve the application of zon- Church to remove a large flag flying in front of the church building
ing policies already established in the ordinance to (shown here with pastor,M.L.Walters,Jr.)because it violated an or-
individ»al situations—for example,variances,special- dinance controlling commercial flap.The church appealed,and even-
and conditional-use permits (even if issued by the tnally the City council amended the zoning ordinance to allow the flag.
governing mir board),appeals,
and interpretations.Quasi-
r ::> : :::<:« :: :: <:> <::::N »:::>::> ::::<: >::>:_::':;:: ::::>':::::::>:_>::
ii �:�lFiiii<zi ?iiiik{i?ii iii:'>>i'2 ii•ii>';trii'i;;
judicial decisions involve two key elements: the
<t'< iiii iii;:is:i`<i>:ii'- iiii:..:::::::.::•:::::.�.•:::II:i::::.,.:::::::._:.:::iii.,.....ggi:....:;:::
Y
finding din of facts regarding rain the e s P
P proposal r
0 oralandth
the
iii-giirii;iii:iii ii i
exercise of some discretion in applying redetermin ry°ai:>i< :::.:.:::::. .:>::::::::.
P predetermined : :.�: : >
policies es to the si
tuation.
..........................:...:.:::.:
Advisory zoning decisions,s,
such as review of a rezonin g ? ? . . : . . ., .»::.iiii:iii3 4
Petition t
on b
a county
Planning board,
do
not require a for-
`i
mal hearing.Nord
do a dministrative decisions
; i ;: i?
> : tis'i3.:ii.i}ii:i:ti£ii`iiiii
c
such as staff
€�.�> :i:<': <�>`:ii>iii>iii:aii:>:<iii<iii�ii�i=>:>:
:i i<i>ii>;:iiiiii:ii:::ii iii<::iii<:i:i::i�>::>::i><iii;><i
<:iii<:iiii::i i::<:i;:iii:;<i: >:ii>as>~a:>i<:>i:a :: iaaa::::::<:>»>
issuance of events for i<>:<ii<ii:;i::«::iii;<ii:;;i:>ix;:isi:isi:>is?: <::<:>:: >:isi:>:::::::::.:::::::::::....>:<........................................,
p r permitted uses,initial ordinance
<.i
i
::::::::.�::�:�:.<.::.:: isisi::is ii:<:::::;::�iiiiiii<>::: .
interpretations, ..
::.<.>:.;:.:::..:.:;<.:.,:::...
to r
etations and initiation s?'= i i <............ ..... .. ::.::::..�:..:.:..::::::::.�. ..:�::::::
rp nitiahon of enforcement actions. r:..�.,.,i��,,...::,.i:<.:<.;:. ..
• q>7°0'��� •' nx<at?.•:i•;•:•i... iaai:a:::: ia'•::'•iSaii;i
Types of Proceedings
Y
Government uses two different types of proceedings ,,,,,
to formally obtain comment on proposed zoning deci-
sions:legislative hearings and evidentiary hearings.Legis-
lative hearings are sessions inanda'ted by statute or
.
ordinance to secure citizens' comments on a specific ,,-:.:w
policy proposal.Legislative hearings must be conducted
olic N:
in a fair,orderly manner so as to allow citizen opinion to �> "'. '•be expressed directly to those making zoning policy de- �` `
cisions. Evidentiary hearings are an even more formal t
< � �ay� ..,_of
means of gathering evidence before a decision is made . ;-, . f- hx.< :•
POPULAR GOVERNMENT Spring 1993 27
Table 1
ing on a rezoning,
Key Differences between Legislative and Evidentiary Zoning Hearings g g' special-use permit,r, es a and follow
Local officials could learn one set of rules and follow
Legislative Evidentiary them for all zoning hearings. But that is not the way
things work, and there are good reasons that different
Notice of Hearings Both newspaper notice Only notice to parties requirements must be followed for different types of
and mailed notice to to the matter is zoning hearings.
owners and neighbors required unless Because legislative zoning decisions such as a rezon-
are required. ordinance mandates ing have such widespread impact,the state statutes au-
otherwise.
thorizing local government zoning require broad public
Speakers at Hearings Number of speakers, Witnesses presenting notice of the proposed decision.The policy choices in a
time for speakers can testimony can be zoning ordinance affect landowners,neighbors,business
be reasonably limited. limited to relevant and industry,and all citizens concerned about the future
evidence that is not character of the community.The statutes encourage full
repetitious. public discussion and deliberation before these decisions
Evidence None is required; Substantial, are made and leave substantial discretion in the hands of
members are free to competent,material local elected officials regarding what these public policies
discuss issue outside evidence must be put should be.
hearing. in the record;witnesses In quasi-judicial zoning decisions(such as a variance
are under oath,subject 'petition),on the other hand,while the hearing and de-
to cross-examination; liberation must be open to the general public,the focus
no discussion of the is on gathering relevant evidence and protecting the
case outside the
hearing is allowed. rights of the specific parties before the board. No new
policies affecting the entire community are being
Findings None are required. Written findings of fact created,so there is no need to broadly solicit public opin-
are required. ion. But since the rights of the parties are being
Records Regular minutes are Detailed record of determined,the courts have imposed fairly strict require-
satisfactory. testimony is required; ments to assure an impartial decision based solely on le-
clerk should retain all gitimately acquired and considered evidence.The courts
exhibits during period further require a clear rationale for the decision,because
of potential appeal. 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
in the application of a zoning ordinance to an individual expeditious judicial review ensures that these required
situation.These hearings are much like a court proceed- protections of individual rights have been observed.
ing—witnesses present testimony, exhibits are submit- These different types of considerations result in dif-
ted, detailed minutes are kept, and a formal written ferent statutory and constitutional due process require-
decision is rendered.Legislative hearings are required for ments for the various types of zoning decisions. The
legislative zoning decisions, while evidentiary hearings purpose of a hearing on a legislative zoning decision is
are required for quasi-judicial zoning decisions, to gather public opinion;the purpose of a hearing on a
Both types of hearings are open to the public and are quasi-judicial zoning decision is to gather evidence.
intended to solicit comments, but they have different Therefore different types of notice are required,and dif-
standards for the notice required prior to the hearing,as ferent types of hearings are conducted.(See Table 1 for
well as for who can speak,what issues are appropriately a summary of differences between legislative and quasi-
raised,the formality with which the hearing must be con- judicial zoning decisions.)
ducted,and the records that must be maintained.
When to Apply Both Sets of Rules
Why Are There Different Rules?
Local governments imposing special-or conditional.
Matters certainly would be simpler if there were just use district zoning must be especially attentive to these
one generic"zoning hearing"that could be used when- differences,because such district zoning involves simul-
ever a city or county was required to hold a public hear- taneous application of a legislative zoning decision(the
28 POPULAR GOVERNMENT Spring 1993
rezoning to a new zoning district with no permitted uses,
only special uses)and a quasi-judicial zoning decision(the - NoticE OF NbnCta PUBLIC SMARM N°CNE fee
MARX NEARING poi 0 rassee aPua
decision on the special-use permit for a particular Yin herdwNdrnrrrwlnrrrdd• N0 t'Otr.aornb.""'bGavtdY"Y°"saod
Thr w..Hens.,Ceenry nqurr w.rrrM tM alt .1
project). Therefore both types of hearings are required, rn°Pi�, r°1g10{,� „ , ,.'"4 Lel ""hs* Orel $o ,,,,ro hour-
, pp Ai,a•t r7�' rdbw,b.rr ore°rrlat of°Ill m Mar•oun and the local government must exercise particular care y jb b��Rc , G.E: M°H N Mirnwn n* wlkaNan:
-1 O$ I Mr.Zi d Fvt Pan ha.
in observing whichever rules apply to each stage of its . . .P.115.0 PIN"e S.R"""'' m�olsa on I aO w
g FP Y g RAM HEARINGS ,,,- l.eelaanlh.nsthdM
NU 1:SPeelst.USE Mier• besot Rob 4-S I rok" rIp Z me
decision making. Ream) w2re aotrruq Or,b vun.FNrar)•wasu. °" Unweror,e owmto Zan(
i fund.a.bel.ry an M tP.4tt nNlal.wry F,West onlha lot (that bulia41,
U.S e`f a d are4r�tedr loco rowan qw nwlh Wr el Ii at lot PM 1W Nq,
pNOOdrdt)./a.000.tM)TMFWs - Aeeler b.M.r,Mead rcatM�onyMilh Gm Roca.
MN land r.um.onds tired. M Down Street here 5.41.R1 almOl`Iw�oORO In iM R l dtrttr°k7,
Rules for Zoning Hearings R°d'; �P 'Mef`""I""""r ml. .ml,ao,rn will b.
Rrllmt Jenlee b b• nleq abler any.asitor,el
Aw.:drr Wow st be « . ry ` ebaIrrd°a° g°w1Qwm.m a'
N�tom�...�TMs.MuN4eubdRAN• r tn.t of rwl.n ids% J r 14 1lTJ of
O{i.7ia11 trwRase, sIVOO gem 4• •m•rn Raom 7W of tM
Inerrf.dd?tw, b,qt»n aaurtteTRt.
Informal Public Meetings fTfad> tale now. N r M 111,,,All earl' ld,r.rlp.ur
1�detarilde rp, haw et d1E �.wowl,,di E - Zonro A Comm.
Can Nalco TN nen al Heel. hr�d rdowa are laminaAdminbtruta
A local government may decide that it is advisable to „r,;;,! r,,� ,l.r hw*m•
g Y I#°7i I wH.»TOa The s* IO of 9uncrnb.
.IS nu l.r TOO avowr dw let dlscrlml an 1M
hold informal public meetings on zoning issues prior to NON.rt uC'EARINGS mgs1PaMI m«�.s • b.b1s a dloobltl'l°rro in /M
F g g P UV!OH< ri aarnilskm a °aces to or
4:6"-4 wnseusrmr itlIllo.
conducting the required legislative or evidentiary hear- R1iar4t":SUB NNM+. „ ,..,,b,,.,, „, R.glreeN pPproPrle+....•
t4ag 7 de.dyrojzzoot h NSA J, 1,tta, ran olds oed qry wen
ing. These may be held for a variety of purposes: to `°°'�r`rr' . IbCS»arY ro dtser�°oeo..son
timid.Is�-a.7A71 with a dISwllh an equal
maerhs,tty I. nAklparo in
gather public opinion prior to an update of the zoning o,,,,wrb,�r new
Wants,
ordinance or the land-use plan,to discuss potential policy d a� hi, ame Co,na at enla:
hn yam..c at Ph.sang
changes,to explain a new provision of the ordinance,or "'""w'l;.' �IN 'b°" �mb. COW), Buncombe
g P P �:..�»m ar.er l o.a,. EOO nu err�rorr,b.
f s TOO number Is 1704)
to discuss a particularly controversial project or policy. mina
""" " '""' `
P Y P 1 P Y Juno 27,1P7J
They may be conducted by the governing board, the ''7 , f.
planning board,staff,or a neighborhood advisory group.
An informal public meeting-is just that.It is not a for- Pubic hearings on a legislative zoning decision are usually advertised
mal hearing;it is not mandated by statute.While it needs in legal ads in the classified section of the newspaper.
to be conducted in a fair and reasonable manner,it is not
subject to the legal restrictions that apply to the legislative formal public hearings, but it is no longer required by
and evidentiary hearings discussed below.; So the local state law to do so.6
government is free to set whatever reasonable ground
- rules it chooses for publicizing and conducting these pub- Newspaper Notice
lic meetings. A local government must publish notice of the gov-
erning board's required public hearing on the proposed
Legislative Hearings adoption,amendment,or repeal of a zoning ordinance.
G.S. 160A-364 for cities and G.S. 153A-323 for counties
As mentioned above, state statutes and court deci- require that the notice be published in a newspaper of
sions have established some detailed rules for hearings on general circulation in the community once a week for
legislative zoning decisions, which must be followed two successive calendar weeks,with the first notice be-
whenever a zoning ordinance is adopted,amended, or ing published not less than ten nor more than twenty-
repealed.The requirements for notice of the hearing,its five days prior to the hearing. The advertisement is
speakers,the information presented,and when an addi- usually run as a legal ad in the classified section of the
tional hearing is required are set out below. newspaper,but some local governments purchase larger
display ads to provide more prominent notice. While
Requirements for a Hearing news stories about forthcoming zoning hearings are also
Since its adoption in 1923, North Carolina's zoning common, they cannot take the place of the formal ad-
enabling statute has mandated a formal public hearing vertisement.Likewise,publication in a homeowners'as-
prior to the adoption or amendment of a zoning ordi- sociation newsletter or other informal publication is
nance,as well as prior to repeal of zoning.'This hearing permissible but may not substitute for newspaper pub-
must be held by the governing board;a hearing by the lication. State statutes do not require posting of a sign
planning board alone is not sufficient s The hearing may on the site of a proposed rezoning,although a number
be conducted as part of the governing board's regular of zoning ordinances add that requirement.
meeting or it may be held as a special meeting at a sepa- The published notice must be sufficiently detailed to
rate time and place. The planning board may also hold allow a citizen to determine what is being proposed and
POPULAR GOVERNMENT Spring 1993 29
Table 2 The mailed notice need only be made by first-class mail.
Summary of Requirements for Mailed Notice of Proposed Zoning It does not have to be registered or return-receipt mail.
Classification Actions Some zoning ordinances go beyond this to require cer-
tified mail,and some zoning offices do so as a matter of
Triggered by: Zoning classification action office policy,but that is not required by statute.Also,the
Sent to: notice is to be mailed to the owners as identified by the
Owner of parcel and abutting parcels,as shown on county tax records; an updated title search is not re-
county tax listing quired.If there are no tax maps available for the area,the
How mailed: First class mailed-notice requirement does not apply."
P Not required for total rezonings of entire jurisdiction All rezonings that amend zoning district boundaries
Exceptions: eq require mailed notice. In general,even here must be sent to any g rat,it is also required for
y property that is the application of new overlay zones,the application of
put in less intensive zone) zoning to new extraterritorial areas,and the initial adop-
Verification; Certification to governing board of mailing to be tion of zoning.Mailed notice usually is not required for
provided by person making the mailing most routine zoning text changes,since they do not af-
fect the basic zoning classification of property."
whether he or she would be affected.' This does not The mailed notice also must be sent to all"abutting"
mean that it must contain a property°�e�•As a matter of practice,some cities send
e affect legal description of the prop- a mailed notice to all who would qualify to sign ed,s nor that the text of the proposed ordi- q fY lly a protest
nonce be published.9 But enough detail must be petition whether or not they have technically abutting
to let a printed parcels of land.This generally includes the owners of both
person know the nature of the zoning change the property being rezoned and the property proposed and to clearly describe the property P perty within 100
being (for example,by P pew in- feet(excluding abutting rights-of-way)of that property.
( P y giving the street address).Just list- The statute does not require the local government to
ing the ordinance number with the date and time of the do the mailing if it is not initiating the rezoning.Several
hearing will not suffice;the court of appeals held such a zoning ordinances place much of the administrative and
notice to be inadequate.
cost burden on the party requesting a rezoning, by re-
quiring that person to provide a certificate that the mail-
By reading the notice,even the most diligent owner
of property.,.would have no reasonable cause to sus- ing was done or to provide stamped,
pect that his property might be affected by the City's to the local government to deit in the mailVMany
contemplated amendment to its ordinance.To be ad- other local governments require that a list of those to be
equate, the notice of public hearing required by G.S.
160A-364 must fairly and sufficiently apprise those mailed notices be provided as part of any petition for a
whose rights may be affected of the nature and charac-
mailed-notice
rezoning.
ter of the action proposed.' ect to
Individual Mailed Notice
more modification by local legislation than any,other
mandated zoning procedure.Given the high cost of in-
In 1985 the General Assembly amended G.S. 153A- dividual mailings when a substantial rezoning is pro-
343 and 160A-384 to require individual mailed notice to posed, ei
those parties most directly affected by certain legislative received legislative relief. have oThe most tcommon modifica-
zoning decisions:"zoning classification actions."In 1987 tion has been to substitute publication once a week for
this provision was amended to exempt the total rezon- four weeks of a large display advertisement in a local
ing of an entire community from the mailed-notice re- newspaper in lieu of mailed notices."
quirement.This exemption was itself modified in 1990
to require mailed notice in total rezonings if the rezon- Speakers and Evidence
ing involves "down zoning"or zoning to a less intense Speakers and Evident¢
Public hearings on legislative zoning decisions must
use."(See Table 2.)
Most aspects of the mailed-notice requirement are formalities conducted
of an evidentiary hearing—oaths,exhibits,The notice should include the same information cross-examinations,avoiding t
contained in the published notice,should advise persons of the hearing,and the like-gathering not be observed.
Af
of the proposed zoning change,and should be mailed in ter all,with these hearings the governing board is receiv-
time for receipt a reasonable time before the hearing. ing comments,not hearing evidence.
30 POPULAR GOVERNMENT Spring 1993
The general statutory guidance for legislative public there are substantial changes in the proposal after the
hearings is G.S. 160A-81 for cities and G.S. 153A-52 for initial notice.
counties.The statutes allow the governing board to A 1971 case,Heaton v.City of Charlotte,set the stan-
??-
adopt reasonable rules governing the conduct of the lard for determining whether an additional hearing is
public hearing, including but not limited to rules (i) required.The court held:
fixing the maximum time allotted to each speaker,(ii)
providing for the designation of spokesmen for groups Ordinarily, if the ordinance or amendment as finally
of persons supporting or opposing the same positions, adopted contains alterations substantially different
(iii)providing for the selection of delegates from groups (amounting to a new proposal) from those originally
of persons supporting or opposing the same positions advertised and heard, there must be additional notice
when the number of persons wishing to attend the hear- and opportunity for additional hearing. However, no
ing exceeds the capacity of the hall,and(iv)providing further notice or hearing is required after a properly
for the maintenance of order and decorum in the con- advertised and properly conducted public hearing when
duct of the hearing, the alteration of the initial proposal is insubstantial.Al-
teration of the initial proposal will not be deemed sub-
Therefore reasonable rules can be established to limit
stantial when it results in changes favorable to the
the number of speakers and the amount of time each complaining parties. Moreover, additional notice and
speaker is given,provided that the hearing is conducted public hearing ordinarily will not be required when the
in a fair and reasonable fashion.An example is provided initial notice is broad enough to indicate the possibility
4 in Freeland v. Orange County," in which 500 citizens of substantial change and substantial changes are made
attended the required public hearing on the adoption of of the same fundamental character as contained in the
notice,such changes resulting from objections,debate
zoning for the Chapel Hill township.The chair allotted and discussion at the properly noticed initial hearing.'7
one hour each to the proponents and opponents of the
zoning ordinance,with each side also having fifteen min- In this instance,the court noted that the notice was
utes for rebuttal. Some sixteen proponents and fifteen broad enough to indicate that changes might be made,
opponents were heard.By a show of hands,it appeared the changes were consistent with the fundamental char-
that those at the hearing were opposed to the adoption acter of the noticed proposal, and the changes were
of zoning by a four-to-one ratio. About 200 persons in- made as a result of comments received at the hearing.
dicated that they wished to speak but were not allowed This led the court to conclude that an additional hear-
to because of the time limitation.The court upheld this ing"could have resulted only in repetitive statements by
procedure,ruling that the legislative intent was to man- the same parties or parties similarly situated....The very
date a hearing and provide a"fair opportunity"for those purpose of the public hearing was to guide the City
in attendance to present their views. The governing Council in making changes in the original proposal con-
board is allowed,however, to establish an"orderly pro- sistent with the views reflected at the public hearing.
cedure"for the hearing,as"[t]he General Assembly did This is exactly what was done."'s So, if in response to
not contemplate that all persons entertaining the same comments raised at the hearing the city council rezones
views would have an unqualified right to iterate and re- less land than was requested or rezones it to a less intense
iterate these views in endless repetition.'!6 category,a new hearing generally is not required.
Given that the purpose of a legislative hearing is to Occasionally lengthy legislative zoning hearings are
broadly solicit public opinion,there is no problem with recessed and continued at a subsequent meeting.In this
receiving petitions, hearing personal opinions, or with situation no additional public notice is required. G.S.
board members'talking to members of the public about 153A-52 and 160A-81,the general provisions on public
the issue prior to the hearing. This is an important hearings,specifically allow hearings to be continued with-
distinction between a legislative hearing and an eviden- out further advertisement.19
tiary hearing.Also,unlike evidentiary hearings,no writ- Many zoning ordinances limit additional hearings of
ten findings of fact or explanation of the decision is ter a decision is made on a rezoning proposal by estab-
required. lishing a minimum waiting period between consideration
of rezoning proposals.A typical provision would be that
Additional Hearings once a rezoning petition has been considered for a par-
A question frequently arises as to whether readvertise- ticular parcel, no additional rezoning petitions will be
ment and rehearing are required if changes are made in considered for a set period,most frequently six or twelve
the proposed ordinance at or after the hearing.The gen- months. These mandatory waiting periods have been
eral rule is that an additional hearing is required only if upheld by the courts?°
POPULAR GOVERNMENT Spring 1993 31
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Crowd outside Orange County Courthouse is protesting a proposed zoning special-use permit to allow a move to Hillsborough by PRE,a mail-
order adult products company.
of the parties to offer evidence, cross-examine adverse
Evidentiary Hearings witnesses, inspect documents, have sworn testimony,
have the decision based only on evidence that is prop
It is important to remember the purpose of eviden-
tiary zoning hearings.Unlike legislative hearings,they are erly in the hearing record,and have written findings of
not designed to solicit broad public opinion about how fact supported by competent, substantial, and material
the board should vote on the matter before it. Rather, evidence?"
they provide an opportunity for the board to gather the
facts it needs to apply policies already set in the ordi- Notice of Hearings
nance.Therefore,while the notice requirements are not The notice requirements for an evidentiary zoning
as broad,the standards on gathering evidence are much hearing are narrower than those for a legislative rezon-
more strict than they are for legislative hearings. ing hearing.The purpose of the notice for these eviden-
tiary hearings is not to let the entire community know
Requirements for a Hearing about a proposed policy being debated but to alert those
Quasi-judicial zoning decisions arise in those situations most directly affected about an opportunity to present
where the decision maker must investigate facts, draw relevant facts to those who are applying a policy already
conclusions from them, and exercise some element of set in the ordinance.This is true even though there may
discretion in applying standards that previously have been be broad public interest in the outcome of the decision.
set in the zoning ordinance to a specific situation.This Still, the constitutional guarantees of due process
includes decisions on variances,special-and conditional- must always be observed:the parties to the matter must
use permits, and appeals of administrative determine- be.given reasonable notice of the hearing.Thus an indi-
tions. These decisions may be made by the governing vidual-mailed notice to the applicant and any affected
board,the board of adjustment,or the planning board, party who has requested notice must be provided. It is
depending upon how the individual zoning ordinance also a good idea to provide individual mailed notice to
involved is structured. adjacent property owners, even though it may not be
The courts have held that the constitutional require- legally required.However,the detailed newspaper notice
ments of due process mandate that all fair trial standards and individual mailed-notice provisions in the zoning
be observed when quasi-judicial zoning decisions are enabling statute do not apply to evidentiary hearings for
made, no matter which local board is making the deci- quasi-judicial zoning decisions.Some local governments
sion.This includes an evidentiary hearing with the right have voluntarily put these same requirements into their
32 POPULAR GOVERNMENT Spring 1993
zoning ordinances for evidentiary hearings,and once in Oaths for witnesses testifying at these evidentiary hear-
the ordinance those notice requirements are binding. ings may be administered by the chair of the board or any
notary26 Witnesses may affirm rather than swear.All in-
Speakers and Evidence dividuals likely to testify can be administered the oath
The principal difference between legislative and evi- together at the beginning of the hearing in order to expe-
dentiary hearings arises in how speakers and evidence are dite matters. If this is done, each witness should be re-
handled. Since the purpose of an evidentiary hearing is minded of the oath at the outset of his or her testimony.
to carefully gather relevant facts to aid in decision mak- Additional rules apply to assure that evidentiary hear-
ing,restrictions on what can be heard and how it can be ings are conducted fairly.All of the parties to an eviden-
heard are applied to these hearings. These standards tiary hearing have a right to know all of the evidence
apply to any board making a quasi-judicial zoning deci- being considered by the board.Therefore it is improper
sion, even the governing board.This places a particular for a board member to discuss the case or to individually
burden on city councils and county boards of commis- gather evidence outside the hearing.If a board member
sioners,which are usually,more accustomed to conduct- has prior or specialized knowledge about a case, that
ing less formal hearings on legislative matters. should be disclosed to the rest of the board and the par-
In the leading case on this subject, Humble Oil 6 ties during the hearing.n Also, it is inappropriate in an
Refining Co. v. Board of Aldermen,which involved the evidentiary hearing to consider nonexpert personal opin-
denial of a special-use permit for a gas station by the goy- ions or hearsay testimony.
eming board in Chapel Hill,Justice Susie Sharp set forth At the conclusion of an evidentiary hearing,the board
the key requirements for an evidentiary zoning hearing: making the decision must adopt written findings of the
facts upon which it is basing its decision.This contrasts
Notwithstanding the latitude allowed municipal with legislative zoning decisions, where no findings are
boards,...a zoning board of adjustment,or a board of
required—those decisions are left to the sound discretion
aldermen conducting a quasi-judicial hearing,can dis-
pense with no essential element of a fair trial:(1)The of the governing board,and the board is not required to
party whose rights are being determined must be given explain why it made a particular decision.But since the
the opportunity to offer evidence, cross-examine ad- purpose of an evidentiary hearing is to produce well-
verse witnesses,inspect documents,and offer evidence documented evidence to support a decision,the parties
in explanation and rebuttal; (2) absent stipulations or are entitled to know what the board concluded are the
waiver such a board may not base findings as to the
existence or nonexistence of crucial facts upon unsworn facts.Any judicial review of the decision is based on the
statements; and (3) crucial findings of fact which are facts as determined by the board making the decision,so
'unsupported by competent, material and substantial the courts also need to know what the board concluded,
evidence in view of the entire record as submitted'can- 'This is done by requiring written findings of fact.
not stand 22
Since any subsequent judicial review is based on the
If critical factual findings in a quasi-judicial zoning record established in this hearing,itis important to keep
matter are based on unswom testimony or hearsay evi- detailed records of evidentiary hearings. Sound record-
dence,the decision may be overturned by the courts and ing or a verbatim transcript of these hearings is not re-
the matter sent back for a new hearing.23 If all the par- quired.28 Many boards do make audio tapes of these
ties agree, however, the right to have witnesses under hearings in case a transcript is later desired. However,
oath may be waived.24 handwritten records and detailed summary of the testi-
A question arises occasionally as to whether attorneys mony received are acceptable. Special care should be
need to be under oath when making a presentation in an taken to ensure that the clerk to the board retains exclu-
evidentiary hearing. If the attorney is just summarizing sive custody of any exhibits presented.The exhibits and
evidence presented by others and making legal argu- record of testimony should be retained for at least the
ments for his or her client,there is no need to be under period within which a judicial challenge can be filed—
oath. On the other hand, if the attorney is offering evi- thirty days after notice of the decision is filed and corn-
dence directly,he or she would need to be sworn like any municated to the parties—and the matter resolved.
other witness. The court tolerates but strongly discour-
ages an attorney from serving both as a witness and an Additional Hearings
advocate in the same case 25 Likewise, if the city or With quasi-judicial land-use decisions, such as vari-
county staff is presenting evidence to the board in an ance requests and special-use permits,the doctrine of res
evidentiary hearing,they should also be under oath. judicata applies,and a board may not reopen and rehear
POPULAR GOVERNMENT Spring 1993 33
a case previously decided. There is an exception if there the meeting must be provided and it generally must be open
is some material change in conditions,such as a new road to the public.
being constructed at the site, additional development 4.The statutes that mandate hearings,G.S. 153A-323 and
160A-364,explicitly refer to adoption and amendment of zon-
near the site over time,and the like.30 Also, appeals of icg ordinances.The court has held that this also includes re-
quasi-judicial zoning decisions go directly to the courts. peal of zoning provisions.Sofran Corp.v.City of Greensboro,
It is not appropriate to seek a second evidentiary hear- 327 N.C.125,393 S.E.2d 767(1990);Orange County v.Heath,
ing before a different local board, such as appealing a 278 N.C.688, 180 S.E.2d 810(1971).
board of adjustment decision to the governing board. 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
Conclusion 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
Zoning hearings can be controversial,emotional,and of a proposed zoning amendment to the planning board,but
confusing. Often the stakes are high for everyone in- it is not required to hold a hearing.A number of zoning ordi-
volved.It is therefore important that these hearings be ordi-
nances,however,still require planning board hearings;others
provide for joint planning board and governing board hearings
conducted in a fair and lawful manner.This requires that on rezoning proposals.If the zoning ordinance itself requires
the local government body responsible for the hearing a formal planning board hearing,it must be held and should
always keep in mind what type of zoning decision is in- generally follow these rules for alegislative hearing.
volved,what type of hearing is required for that type of 7.Helms v. City of Charlotte,255 N.C.647, 122 S.E.2d
decision,and what the ground rules for that hearing are.31 817(1961);Walker v.Town of Elkin,254 N.C.85, 118 S.E.2d
It is also important that this information be cnmrnu- 1 (1960); Capps v. City of Raleigh, 35 N.C. App. 290, 241
P S.E.2d 527(1978).These cases held that actual personal no-
nicated clearly to the participants in the hearing.Land- tice of a proposed rezoning is not constitutionally required
owners,neighbors,and citizens need to understand what nor is it sufficient to substitute for compliance with statutory
these rules are and why they exist in order to participate requirements.
effectively in zoning decisions. Each zoning hearing 8.Capps,35 N.C.App.at 290,241 S.E.2d at 527.
should open with a brief explanation of the rules that 9.Though not explicitly required by the statute,a copy
of the full text of the proposed ordinance or amendment
must be followed and their purpose.A written summary should be available for public inspection at the time the no-
of the hearing ground rules can also be provided in ad- tice is published.
vance to the parties to the hearing. 10.Sellers v.City of Asheville,33 N.C.App.544,549,236
There will never be complete agreement on how zon- S.E.2d 283,286(1977).By contrast,in In re Raynor,94 N.C.
ing decisions should come out,and there will always be 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
rooms full of people eager to make their strong opinions stated its purpose was to consider proposed zoning and pro-
known to the boards making these decisions.However, posed long-range land use plans within the area recently added
the boards'being mindful of the standards for conduct- to the Town's extraterritorial jurisdiction."The notice went on
ing zoning hearings fairly and clearly communicating to provide a"rough description"of the area affected,using
these standards to all involved will help make zoning major streets as boundaries.
hearings more understandable,more efficient,and fair 11. The legislature has also extended this mailed-notice
requirement to some land-use regulations other than zoning.
for all concerned. 4 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 ordi-
Notes nance imposes requirements more stringent than the state-
wide minimum standards adopted by the Environmental
1.A more detailed discussion of the legal issues addressed Management Commission.
in this article can be found in the author's forthcoming Insti- 12. Frizzelle v. Harnett County, 106 N.C.App. 234,416
tute of Government publication,Legislative Zoning Decisions: S.E.2d 421,rev.denied,332 N.C. 147,419 S.E.2d 571 (1992).
Legal Aspects.The book will be available in summer 1993. In this case,however, the ordinance itself required mailed-
2. In many respects this distinction is similar to the dis- notice and posting,which was not done.
• tinction between rule-making decisions and contested case 13. Note that a zoning text change that substantially
decisions under the state's Administrative Procedures Act, changes the range of permitted uses in a district can have the
G.S.Ch. 150B. same practical effect as a map change and in those instances
3.The open meetings statute does apply to these meet- may be covered.
ings and should be observed. See G.S. 143-318.9 to-318.18. 14.Many of the modifications are of only temporary dura-
Where a majority of the members of a board,council,or com- tion.This trend of local modification is continuing.Some thir-
mittee gather to conduct business or to deliberate,notice of teen bills were introduced in the 1993 General Assembly to
34 POPULAR GOVERNMENT Spring 1993
provide mailed-notice exceptions to thirty-three local govern- Conduct of the North Carolina State Bar.This rule prohibits
ments.A bill is also pending that would extend these alterna- a lawyer from testifying as a witness in a case he or she is han-
tives to mailed notice to all local governments. dung unless the testimony relates solely to an uncontested
15.Freeland v.Orange County,273 N.C.452, 160 S.E.2d matter,is related to legal fees,or if refusal to testify would work
282(1968). a substantial hardship on the client because of the distinctive
16.Freeland,273 N.C.at 457, 160 S.E.2d at 286. value of the lawyer in the particular case.
17. Heaton v. City of Charlotte, 277 N.C. 506, 518, 178 26.A standard oath may be used,such as,'Do you swear
S.E.2d 352,359-60(1971). (or affirm)that the evidence you give shall be the truth, the
18.Heaton,277 N.C.at 518-19, 178 S.E.2d at 360.See also whole truth,and nothing but the truth,so help you God?"
Walker v.Town of Elkin,254 N.C.85, 118 S.E.2d 1(1960);In 27.Crump v.Board of Education,326 N.C.603,392 S.E.2d
re Issuance of CAMA Permit to Worthy,82 N.C.App.32,345 579(1990).It is important to distinguish personal knowledge,
S.E.2d 699(1986). which can be considered if disclosed, from personal bias,
19.Also,G.S. 160A-71(bl)provides that regular and special which disqualifies a member from participation.Personal bias
meetings of the governing board may be recessed or adjourned is present if the member has a fixed opinion that is not sus-
to reconvene at a time and place certain (the comparable ceptible to change regardless of the evidence presented.Also,
county provision,G.S. 153A-40,contains a similar provision for in Rice Assoc.v.Town of Weaverville Bd.of Adjustment,108
regular county board meetings). G.S. 143-318.12(bXl) in the N.C.App.346,423 S.E.2d 519(1992),the court held that par-
state's open meetings law provides that if the time and place ticipation of a member with bias does not invalidate the deci-
for reconvening are set in the properly noticed original meet- sion if the applicant is not entitled to a permit under any
ing,no additional public notice is required. circumstances.
20. See George v. Town of Edenton, 294 N.C. 679, 242 28.Burton v.New Hanover County Board of Adjustment,
S.E.2d 877(1978);Nelson v.City of Burlington,80 N.C.App. 49 N.C.App.439,271 S.E.2d 550,cert.denied,302 N.C.217,
285,341 S.E.2d 739(1986);Clark v.City of Charlotte,66 N.C. 276 S.E.2d 914(1981). The court of appeals has noted that
App.437,311 S.E.2d 71(1984). while a verbatim transcript is not required,its presence would
21.Humble Oil&Refining Co.v.Board of Aldermen,284 facilitate appellate review.In re City of Raleigh Parks and Rec-
N.C.458,202 S.E.2d 129(1974);Jarrell v.Board of Adjustment, reation Dept., 107 N.C.App.505,421 S.E.2d 179(1992).
258 N.C.476, 128 S.E.2d 879(1963). . 29. Little v. City of Raleigh, 195 N.C. 793, 143 S.E. 827
22. Humble Oil & Refining Co., 284 N.C. at 470, 202 (1928).See also In re J. H.Carter Builder,Inc.,95 N.C.App.
S.E.2d at 137(citations omitted). 182,381 S.E.2d 889,rev.denied,325 N.C.707,388 S.E.2d 458
23. See, e.g., Jarrell, 258 N.C. at 476, 128 S.E.2d at 879; (1989)(rehearing by board of adjustment six weeks after origi-
Brummer v. Board of Adjustment, 81 N.C. App. 307, 343 nal vote,made because chair wished to change his vote after
S.E.2d 603,rev.denied,318 N.C.413,349 S.E.2d 590(1986). reviewing the minutes,held improper because there had been
24.Craver v.Board of Adjustment,267 N.C.40,147 S.E.2d no substantial change in the facts,evidence,or conditions).
599(1966);Burton v.New Hanover County Board of Adjust- 30.In re Broughton Estate,210 N.C.62,185 S.E.434(1936).
ment,49 N.C.App.439,271 S.E.2d 550,cert.denied,302 N.C. 31.There are other important differences in how legisla-
217,276 S.E.2d 914(1981);Carter v.Town of Chapel Hill, 14 tive and quasi-judicial zoning decisions are made beyond the
N.C.App.93, 187 S.E.2d 588,cert.denied,281 N.C.314, 188 differences in hearings discussed in this article. For example,
S.E.2d 897(1972). there are different standards on conflicts of interest, voting
25.Robinhood Trails Neighbors v.Board of Adjustment,44 majorities required, creation of vested rights, imposition of
N.C.App.539,261 S.E.2d 520,cert.denied,299 N.C.737,267 conditions,and the time limits for seeking judicial review.
S.E.2d 663 (1980). See also Rule 5.2, Rules of Professional
Addendum
After this article was published, the 1993 General July 23, 1993, simply by adopting an ordinance setting
Assembly adopted amendments to G.S. 153A-343 and forth the earlier date.
160A-384 regarding individual mailed notices(1993 N.C. The new statute creates five exceptions to the require-
Sess. Laws ch. 799). This statute repealed all of the lo- ment of sending an individual first-class mailed notice
cal laws providing exemptions for mailed notices of pro- when a zoning classification action is proposed. The five
posed zoning classification changes, including nine exceptions are:
additional exemptions that had been adopted earlier in 1. a total rezoning of all property within a city or
the 1993 session. This new statute is effective January within a zoned area of a county,unless the rezon-
1, 1994 (effective January 1, 1995, for Forsyth County ing is to a less intensive category;
and its municipalities). Local governments have the op- 2. an initial zoning of an entire zoning jurisdiction
tion of moving up this effective date to any time after area;
POPULAR GOVERNMENT Spring 1993 35
3. a zoning classification action that directly affects article was published.In this case the court reaffirmed that
more than fifty properties,with at least fifty differ- evidentiary hearings are required for quasi-judicial zoning
ent property owners; decisions.The court emphasized that it is the nature of
4. a reclassification that is a zoning text amendment; the type of decision—rather than what it is called in the or-
or dinance or who makes it—that controls whether this more
5. a zoning classification done as part of adopting a formal decision-making process is required.Those zoning
mandated water-supply watershed protection pro- decisions that involve findings of fact and application of
gram. discretion(typically special-and conditional-use permits,
variances, and appeals of administrative decisions) are
Where these five exceptions apply,a substitute notice
quasi-judicial. The court in this case also addressed the
is required in lieu of the individual mailed notice. The standard for avoiding conflicts of interest in zoning deci-
substitute notice consists of both publication of a half- sions. The court held that with legislative zoning deci
page newspaper advertisement for four successive weeks
and the posting of a prominent sign at the site of the pro-
posed rezoning. Also,individual mailed notice still has
sions,`where there is a specific,substantial,and readily
identifiable financial impact on a member,nonparticipa
tion is required.Additional considerations beyond these
to be provided to those affected landowners who reside financial interests require nonparticipation in quasi-judi-
o ide the newspaper's circulation area. cial zoning decisions.A fixed opinion that is not suscep-
Also,the Supreme Court handed down a decision in tible to change may well constitute impermissible bias,as
County of Lancaster v.Mecklenburg County, N.C. will undisclosed ex parte communication or a close famil-
. 1993 N.C. LEXIS 403 (Sept. 10, 1993), after this ial or business relationship with the applicant?Id.at_.
36 POPULAR GOVERNMENT Spring 1993