Loading...
HomeMy WebLinkAboutAgenda - 04-20-2018 4-b - Board of Adjustment OverviewORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: April 17, 2018 Action Agenda Item No. 4-b SUBJECT: Board of Adjustment Overview DEPARTMENT: County Attorney ATTACHMENT(S): INFORMATION CONTACT: 1. Board of Adjustment Information from Other Local Governments 2. Available Training for Boards of Adjustment in North Carolina 3. Brochure on Boards of Adjustment in North Carolina John Roberts, 919-245-2318 Professor David Owens, UNC School of Government PURPOSE: To receive information regarding the purpose and operations of the Orange County Board of Adjustment, including a brief presentation from Professor David Owens, Gladys Hall Coates Professor of Public Law and Government, of the UNC School of Government. BACKGROUND: Orange County residents have expressed concerns regarding the operations of the Board of Adjustment and staff appointed to assist the Board of Adjustment. The Board of Commissioners directed staff to recruit a neutral third party to present an overview of the purpose and operations of boards of adjustment. The County Manager, County Attorney, and staff have been reviewing the issues raised and associated solutions and costs. In addition to questions related to process concerns were expressed regarding availability of public records. Orange County is in the midst of converting to a process in which most public records subject to requests would be published on the County’s website. This conversion is ongoing, but once complete will eliminate situations in which a record may be provided in a format not acceptable to the requesting party. Per newly enacted state law most records will be posted electronically in response to requests. Below is a brief overview of county boards of adjustment. The Orange County Board of Adjustment is a quasi-judicial hearing panel appointed by the Board of Commissioners. The term quasi-judicial usually refers to the adjudicative acts of an elected or appointed official or board. In Orange County the quasi-judicial hearings before the Board of Adjustment generally fall into three categories – appeals of final decisions, applications for special use permits, and variances. Unlike legislative hearings in which the public at large may comment on all conceivable policy issues associated with the subject matter of the legislative hearing, there are restrictions on who may participate in quasi-judicial hearings. The participants of a quasi-judicial hearing may only be those interested parties with standing. Interested individuals with specific knowledge or 1 expertise on the subject matter may participate as witnesses or expert witnesses as long as they have the ability to offer competent, material, substantive testimonial or other evidence. Members of the general public may not participate if they do not fall into one of these categories. The parties to a quasi-judicial hearing have a right to have their matter heard by an impartial decision-maker. If a member of a quasi-judicial board has already formed an opinion before the hearing or has a conflict of interest, that member should not participate in the hearing. Members of quasi-judicial boards should also ensure they have no ex parte communications either with parties, witnesses, or the general public. Any such communications must, at a minimum, be disclosed. There may be members of local quasi-judicial boards who would prefer to deliberate in closed session. This is not permitted. North Carolina open meetings laws require meetings of public bodies to be held in open session so that the public may remain informed of the nature and subject matter of the meetings. The law does have exceptions that allow closed sessions, but these exceptions do not include the authority to deliberate on quasi-judicial hearings. The only exception that may apply to boards of adjustment is consultation with an attorney. There may be situations in which a board of adjustment needs to consult an attorney – for example, when a decision is appealed to inform the Board of Adjustment of its role in the appeal. Currently, meetings of the Orange County Board of Adjustment are attended by a staff attorney of the County Attorney’s office. Under the prior County Attorney, meetings were attended by the assistant attorney. In both situations the attorney was present to answer questions of law and procedure and to help ensure due process. As noted above, it may be lawful for boards of adjustment to meet in closed session to consult with an attorney. This has only occurred once in the last thirteen years. That incident was for the limited purpose of discussing the board’s role in an appeal. Questions of law are generally asked in open session and generally responded to by all attorneys present. Attachment 1 shows examples of how surrounding counties and towns staff board of adjustment meetings. None regularly hire independent counsel to represent their boards of adjustment. The only exceptions to this appear to be when there is an actual conflict for the attorney who attends their board of adjustment hearings. Only in those situations does another attorney attend for the board of adjustment. The only situations in which another attorney would be needed are situations as noted above when the Board of Adjustment has questions of law that for some reason cannot be asked in open session or if the County appeals a Board of Adjustment decision. The former has occurred once as noted above. The latter has not occurred in at least the last thirteen years are unable to determine if it has ever occurred in Orange County. Orange County Planning Staff is presently training Planning Board members using an interactive video E-Learning seminar series from the UNC School of Government. Some training topics are directly relatable to the Board of Adjustment functions, including “Conducting an Evidentiary Hearing” and “Making a Quasi-Judicial Decision,” both by Professor Owens. Training can begin immediately for the Board of Adjustment and continue while the access is active. FINANCIAL IMPACT: There is no financial impact associated with receiving this report. Adding additional meetings to be recorded, maintained, and/or broadcast will involve the cost 2 associated with approximately six - eight additional meetings per year. This funding will come out of the Clerk’s budget and videos would be available on the planning department’s website. Assuming an hourly rate of $200 per hour, retaining outside counsel to represent the Board of Adjustment could range from a low of $15,000 solely for attendance at meetings and preparation for those meetings to many tens of thousands of dollars for representation in cases that are appealed if representation during appeals is contemplated. There is currently no line item budgeted to cover this expense. SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to this item: • GOAL: ENABLE FULL CIVIC PARTICIPATION Ensure that Orange County residents are able to engage government through voting and volunteering by eliminating disparities in participation and barriers to participation. RECOMMENDATION(S): The County Attorney previously recommended outside counsel was not necessary to represent the Board of Adjustment. If the Board determines separate counsel is needed to represent the Board of Adjustment, an option that does not involve the expense of outside counsel is for the County Attorney’s office to screen one or more attorneys within the office from having any connection to issues that may be appealed to the Board of Adjustment. This would ensure the Board of Adjustment has access to an attorney who has had no prior exposure to matters on appeal. The County Manager recommends the Board receive the information regarding the purpose and operations of the Orange County Board of Adjustment, discuss this matter as necessary and provide direction to the Manager. 3 Attachment 1 Attachment 1 Independent (I) Maybe from same firm as County Attorney Independent (ID) Different Firm Chatham County I/PT/C City of Mebane FT/IH ID-If necessary The City Attorney attends the board of adjustment meetings. Outside counsel may be retained if there is an actual conflict of interest. Town of Chapel Hill I/PT/C ID-If necessary Town of Carrboro I/PT The Town contracts for legal services with the Brough Law Firm including Town Attorney and Board of Adjustment legal services . Town of Hillsborough I/C ID-If necessary City/County of Durham I/FT A representative of the ‘City’ and ‘County’ Attorney’s offices attends the Board of Adjustment meetings to assist the Board members with legal questions. Wake County FT/IH County Attorney serves as legal counsel to the Board of Adjustment PT/C PT/C FT/IH FT/IH County Attorney/Board of Adjustment Representation Local Government Attorney BOA Attorney The Chatham County Board of Adjustment does have independent legal counsel separate from the County Attorney. The county does not have a full time attorney, but contracts with Poyner and Spruill. Both attorneys are from Poyner and Spruill. The Town Attorney generally serves as counsel to the Board of Adjustment and attends the Board’s meeting in that role. On occasion, where the Town Attorney has been directly involved in a staff decision being appealed to the BOA or when some other situation arises where it is not appropriate for the Town Attorney to serve as the Board’s advisor, the Town will retain independent counsel to advise the BOA. There is a general account with funds available to access when the need for consulting attorneys are authorized to be hired. The Town contracts with the Brough law firm for legal services. They serve as the Town and Board of Adjustment’s Attorney. In cases of an appeal from the Historic Commission the Town hires a third party to represent the Board of Adjustment with reps from the Brough law firm representing the Historic Commission. Full Time (FT) / Part Time (PT) / In-House (IH)/Contractual ( C) PT/C FT/IH FT/IH 4 Attachment 2 Training for Quasi-judicial Boards This module reviews how local government boards make quasi-judicial decisions as part of their land development regulations. The concepts discussed include: the two key parts of a quasi-judicial decision – determining facts and applying standards, the requirement for impartial decision-makers, use of conditions on approvals, the role of prior decisions in setting precedents, the mechanics of making a decision, and requirements for the decision document. This module reviews how local government boards conduct evidentiary hearings as a part of their land development regulations – a necessary step in making quasi-judicial decisions. The concepts outlined include: when an evidentiary hearing is required and why, the purposes of an evidentiary hearing, the roles of various persons at these hearings, actions taken prior to the hearing, conducting the hearing itself, and compiling the record of the hearing. 5 Can I talk to the Board members about my con- cerns with a proposed Special Use before the hear- ing? No. This is commonly referred to as ex parte commu- nication. Board members cannot discuss the case with anyone, including the applicant or County staff, out- side of the public hearing. Who can speak during a quasi - judicial hearing? Only those individuals sworn in or affirmed as offering expert or qualified testimony may testify on the merits of the application. What is considered evidence? Breaking down what constitutes evidence can best be summarized as follows: i. Competent/material evidence: Evidence from a recognized expert or a trustworthy source. For example a realtor who has professional experience and can offer an opinion if a specif- ic project will or will not impact the value of adjacent property. ii. Substantial evidence: evidence that which a `reasonable mind' would regard as sufficiently supporting a specific result. iii. Material evidence: evidence that is relevant to the issue being considered. For more detail on what constitutes evidence you can refer to a Special Use permit fact sheet which can be viewed using the following link: http: // www.orangecountypc.gov/departments/ planning and inspections /documents.php. As a general rule, anyone with knowledgeable infor- mation (i.e. relevant) to the case may provide factual information, but only experts may provide opinion tes- timony. Even expert testimony must be competent (i.e. the expert has qualifications relevant to the issue) and material before the decision - making board can rely on it. How are decisions made? Members of the board rendering the decision must make their decision solely on the competent, material and substantial evidence presented at the hearing. The Orange County Planning Department looks forward to working with all property owner to ad- dress questions and concerns over the issuance of a Zoning Compliance Permit and will be more than happy to make themselves available to you to address any concerns you may have . To request assistance, or review provisions of the Zoning Ordinance, please contact the Planning staff at (919) 245 -2597. �ogntp of ®CMIM0 = 20 Orange County Planning and Inspections 131 West Margaret Lane PO Box 8181 Hillsborough, NC 27278 Phone: (9 19) 245 -2597 Fax: (919) 644 -3347 Email: mharvey @orangecountync.gov ®�Q�ge C."." Orange County 6 Planning and Inspections 17 52 Department e Oath �dCa``� Zoning Information Brochure : Legislative versus Quasi - Judicial Hearings A citizens guide to the different development review processes utilized within Orange County Attachment 3 Orange County Planning and Inspections 131 West Margaret Lane PO Box 8181 Hillsborough, NC 27278 Phone: (919) 245 -2597 Fax: (919) 644 -3347 Email: mharvey @orangecountync.gov Purpose: The purpose of these informational brochures is to supply local citizens with essential information con- cerning various Planning and Zoning related topics in order to foster greater understanding of local regula- tions. This brochure is intended to provide guidance to local residents on how to properly address specific planning issues as well as to inform local residents what there rights are with respect to specific areas of concern. What is the legislative review process and when is it used ? A legislative review process is typically used to re- view requests to rezone property, act on certain appli- cations proposing the subdivision of property, or to amend local land use regulations as contained within the Orange Count Unified Development Ordinance (UDO). It is the most common review process em- ployed by the County. When are legislative items reviewed? Such items are typically reviewed first by the Plan- ning Board and then by the elected officials during a previous advertised public hearing. How am I notified of the meetings? Notices are sent out by first -class mail to property owners within 1,000 feet of the property where the use will be located, a sign is posted on the subject proper- ty announcing the date /location of the public hearing, and the County advertises the hearing Who can speak during the review of a legislative item? Anyone can address the elected officials or staff on a legislative item. The Orange County Board of Com- missioners can solicit and consider the comments and concerns of many different constituents and listen to the different viewpoints involved in an issue. Can I speak to a Planning Board member or a County Commissioner about a legislative item be- fore the public hearing? Yes. Individual Board members can review and dis- cuss the matter at any time and place, even before the holding of the Planning Board meeting or the required public hearing. How are decisions made on a legislative item? Decisions are made based on all comments received, the recommendation of the County Planning Board, a recommendations made by County staff, as well as the Board members own experiences, opinions and judg- ment. What is the quasi - judicial process and when is it used? A quasi - judicial process is typically used to review land use development applications, commonly called a Spe- cial Use. In this process the Board hears factual evi- dence and sworn testimony presented at a previous ad- vertised public hearing and then makes a determination on whether the permit can be issued based on the evi- dence presented. What is a Special Use and where can I find a list of allowable uses in Orange County? A Special Use is a use of property where the County has previously determined the potential impacts of its development calls for special consideration. Section 5.2. Table of Permitted Uses of the UDO contains a list of those specific land uses identified considered to be a Special Use. Orange County has 2 different categories of SUP, specifically: Class A reviewed and acted upon by the Board of County Commissioners (BOCC), with a recommendation from the Planning Board, and Class B reviewed and acted upon by the Orange County Board of Adjustment.. How am I notified of the meeting? 7 Notices are sent out by first -class mail to property own- ers within 1,000 feet of the property where the use will be located, a sign is posted on the subject property an- nouncing the date /location of the public hearing, and the County advertises the hearing Can staff help me prepare for the meeting? Staff is always happy to offer guidance and assistance with respect to understanding the Special Use permit process and what types of arguments can be made with respect to supporting or opposing an application. Staff cannot, however, help you prepare an argument or act as an expert for you. How does a quasi - judicial public hearing work? The review of a Special Use occurs in the following general manner: 1. A public hearing is scheduled and advertised in accordance with the UDO and State law, 2. Individuals intending on addressing the decision making body are sworn (i.e. indicate they are going to offer factual testimony and evidence), 3. Those in favor of the application present sub- stantial, competent evidence that a proposal meets the requirements of the UDO, 4. Those in opposition must also present substan- tial, competent evidence that the proposal does not meet the applicable standards. The purpose of the hearing is to allow those in favor or opposition to a proposed Special Use to present evidence to the decision making board that the proposed use does or does not comply with applicable standards. Opinions, hearsay, general comments, or per- sonal feelings on a project are not considered evidence and cannot be used in rendering a decision on a permit request. 4. The Board rendering the decision bases the deci- sion to approve or deny the permit request on the evidence and testimony offered during the hear- ing.