Municipal Education Grant Fayston, Vermont June 9, 2009

Municipal Education GrantFayston, Vermont

June 9, 2009

Quasi Judicial HearingsTaking Evidence

And

Site VisitsStephanie Smith, AICPSenior Associate VLCT Municipal Assistance Center

Overview

Municipal Land Use Officials

Quasi Judicial Hearings

Managing Hearings

Site Visits

Dillon’s Rule

“ We have consistently adhered to [ ] Dillon’s Rule that a municipality has only those powers and functions specifically authorized by the legislature, and such additional function as may be incidental, subordinate or necessary to the exercise thereof…”

Petition of Ball Mountain Dam Hydroelectric Project, 154 Vt. 189 (1990).

Municipal Land Municipal Land Use OfficialsUse Officials

Administrative OfficerAdministrative Officer

The Administrative Officer is the face of local land use regulation

ZA is required by law to administer bylaws literally.

Primary functions are: Assisting public and applicants with process; Reviewing applications where AMP approval

is not required (and refer applications to AMP as necessary); and

Initiating enforcement proceedings for violations.

Administrative OfficerAdministrative Officer

The Administrative Officer may provide staff support to the AMP in

hearings and drafting decisions, but does not vote as a member of the AMP

spends more time reading and administering the bylaws than any other officer

may have institutional knowledge regarding how bylaws have been interpreted over time

should coordinate a unified development review program, and

notifies applicants that State permits might be necessary

Administrative OfficerAdministrative Officer AppealsAppeals

All actions (or inactions) are appealable to the AMP.

Role in appeals before the AMP is different from in referrals

Acts more like a party, making arguments and presenting evidence to support his/her decision. Cannot staff deliberations of the AMP or participate in the decision writing process.

Administrative OfficerAdministrative OfficerAdministrative ReviewAdministrative Review

24 V.S.A. § 4464 (c) enables a legislative body to establish procedures under which the Administrative Officer may review and approve new development; and amendments to previously

approved developments that typically required review before the AMP

Administrative OfficerAdministrative OfficerAdministrative ReviewAdministrative Review

The bylaws shall clearly specify the thresholds and conditions under which the administrative officer classifies an application as eligible for administrative review.

The thresholds and conditions shall be structured such that no new development shall be approved that results in a substantial impact under any of the standards set forth in the bylaws.

Appropriate Municipal PanelAppropriate Municipal Panel

Boards designated in local bylaws to conduct development review (DRBs, PCs and ZBAs) are considered “Appropriate Municipal Panels” (AMPs).

AMPs are quasi-judicial bodies because they act like a court when applying local land use regulations to applications.

Appropriate Municipal PanelGround Rules

Personal opinions of individual members must not affect decision-making of board.

Only approve applications that comply with the applicable bylaw or state law.

Only levy conditions authorized by bylaws or state law.

If a project meets the applicable criteria, AMPs must grant the approval.

Appropriate Municipal PanelAppropriate Municipal Panel

Every AMP has two primary functions:

1. To afford applicants and interested persons fair and consistent quasi-judicial hearings.

2. To determine whether a particular application meets the requirements set forth in the applicable provisions of the zoning or subdivision bylaw, or might do so with reasonable conditions.

Meetings & Meetings & HearingsHearings

Two Types of Public Assemblies

1. Meetings

2. Quasi Judicial Hearings

Meetings versus Hearings

• Meetings are different from hearings

• Meetings are LEGISLATIVE General applicability, governed

primarily by Open Meeting Law• Hearings held by an AMP are

QUASI-JUDICIAL Application limited to specific parties Governed by a particular statute

Meetings

When are we meeting?

The AMP is meeting when

acting in a rule making capacity

working on ministerial duties.

Basic Open Meeting Law Requirements

• A meeting occurs when a quorum of a public body convenes to discuss the business of the body or to take action. Minutes Meeting must be publicly noticed Meeting must be open to the public Public must have opportunity to

comment


Minutes Minutes must be kept and include:

All members of the public body present;

All other active participantsAll motions, proposals, and

resolutions made and their result;Results of any votes, with a record of

individual votes if a roll call is takenMinutes must be available 5 days

after the meeting


Regular meetings: Meeting schedule (time and place) is set by resolution at organizational meeting. No notice or posting requirements, however good idea to post prominently in town for entire year. 1 V.S.A. § 312(c)(1).

Special meetings: Time, place and purpose must be publicly announced 24 hours before meeting. Posting in three places in town, including the clerk’s office, oral or written notice to board members unless waived and notice to news media upon request. 1 V.S.A § 312(c)(2).

Emergency meetings: No notice required, but some sort of notice should be given as soon as possible. 1 V.S.A. § 312(c)(3).

Quasi-Judicial Hearings

Conducting Effective Quasi-Judicial Hearings A quasi-judicial

proceeding/hearing occurs when an appropriate municipal panel convenes to hear an application for development.

Rules are different, and more strict in quasi-judicial hearings than in meetings.

Conducting Effective Quasi-Judicial Hearings An AMP may

administer oaths and compel the attendance of witnesses

require production of evidence related to any issue under review by the AMP

conduct site visits

MinutesMinutes The AMP is required to keep

minutes and records of its examinations and other official actions of its proceedings in the clerk’s office as a public record.

24 V.S.A. § 4461 (a)

Five Hallmarks of a Quasi-Judicial Hearing

1. Rights of parties are being considered

2. All parties can present evidence3. All parties can cross-examine

witnesses/question evidence4. Written decision5. Appealable

Constitutional Due ProcessConstitutional Due Process

Parties have a property right protected by the 14th Amendment to U.S. Constitution

“. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”

The Essence of Due ProcessThe Essence of Due Process

1. Providing Notice

The government is taking action that may effect your property

2. Having an Opportunity to be Heard proceedings should be free of conflict

of interest, run in an orderly manner, and evidence managed and presented at an open proceeding

Managing Managing HearingsHearings

Managing HearingsManaging Hearings

Role of the Administrative Officer

Role of the Chair

Role of the Parties

Role of the Appropriate Municipal Panel

Role of the Administrative Officer Application Requirements

The actions of the AO can influence the integrity of the development review process Provides critical information that could

effect a potential applicant’s decision or actions

Provides application materials (forms) May make sure an application is complete

and contains all required information Gives insight into the regulatory review

process

First impressions impact the relationship-positively or negatively

Eliminates possible misunderstandings Provide feedback concerning the

adequacy of plans relative to clear standards

Reduces errors leading to a more streamlined process

Reduces uncertainty in the development review process


The application requirements outline what information (evidence) is necessary for the AMP or the ZA to determine if the proposal complies with the bylaws.

Bylaws indicate the information required for a complete submission Fees Forms Studies Plans !!!


The complexity of the bylaw or the review process will expand the basic plan application requirements

A checklist of required information will Provides the necessary information for review No arbitrary or subjective decisions about

required application materials Leads to consistent reviews Self explanatory for those new to the

development review process

Application RequirementsChecklist

The Role of the ChairThe Role of the Chair

The Chair• Runs proceedings consistently

and maintains order.• Administers oaths (if required).• Decides all points of order or

procedure.• Chair enforces the adopted Rules

of Procedure.

The Role of the ChairThe Role of the Chair

The Chair• Reminds the board to disclose potential

conflicts of interest for the record.• Steers clear of history and personalities.• Ask those who believe they meet the

definition of interested person to identify themselves and provide contact information.

• Keeps discussion on topic and relevant.• May notify participants that irrelevant,

immaterial or unduly repetitious evidence may be excluded.

The Role of the ChairThe Role of the ChairOrder of ProceedingOrder of Proceeding

• Request for presentation by applicant

• Board members ask questions• Public presents evidence and

applicant responds• More questions from board • Final comments• Call for close of hearing

The Role of the PartiesThe Role of the Parties

Who are Parties?• Any people who believe that

meet the definition of interested person

• Panel shall keep a written record• Interested person defined in the

24 V.S.A. § 4465 (b)• Those who participate must

receive copy of the decision.

The Role of the PartiesThe Role of the Parties

The Parties Have the right to know and

participate according to specific rules

May present and question evidence

Should (however not required) speak from personal knowledge, experience and observation

Must link testimony to the bylaws

The Role of the Appropriate Municipal Panel

The AMP is both Judge and Jury Focus on

Parties Offered relevant and credible evidence

Bylaws


The AMP is not a board : that makes policy decisions on land

use development that encourages or discourages

development in a town that lets their “feelings” about

development or a particular applicant guide its decision making process

The Role of the Appropriate Municipal Panel Don’t focus on or consider

Personal issues (personalities),

Violation history, Financial hardship and Details provided by parties that have no relationship to standards in your bylaws.


Factual Questions

Who, What, Where, When, Why and How?

Questions must be relevant to the application and the bylaws.

Board shouldn’t answer its own questions

Taking Evidence

“Evidence” is testimony, documents, and tangible objects that prove or disprove the existence of an alleged fact.

Black’s Law Dictionary 8th Edition

“Evidence is substantial if it is relevant and a reasonable person might accept it as adequate to support a conclusion.”

-In re Halnon 174 Vt. 514, 811 A.2d 161 Vt.,2002

Taking Evidence

“Hearsay” is testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and this is therefore dependant on the credibility of someone other than the witness.


Relevant • Does the evidence support a standard

in the bylaw? Credible

• Is there documentation to support the testimony?

• Is the evidence based on personal experience or observation?

• Is the testimony provided by an expert?

Taking Evidence

Managing Evidence

For documentary evidence, (you can) mark each document with: Applicant’s exhibit number Interested person’s exhibit number Name and number of application (other

identifier) You can also document the evidence

received in the decisionFor oral evidence, keep a record of:

Who spoke What was said

Technical Review

The legislative body may establish procedures and standards for requiring an applicant to pay for reasonable costs of an independent technical review of the application.

24 V.S.A.§ 4440 (d)

Technical Review

(C) Technical Review. To assist in its evaluation of an application, the Board may require the submission of an independent technical analysis of one or more aspects of a proposed development, prepared by a qualified professional acceptable to the Board, to be funded by the applicant.

Section 5.2 (6) (C) Fayston’s Bylaws

Technical Review

Technical ReviewNeed assistance in determining the

facts due to: Competing experts or information Complex application for

development Inability to determine whether

standards are met

Deliberations

“[W]eighing, examining and discussing the reasons for and against an act or decision, but expressly excludes the taking of evidence and the arguments of parties.”

1 V.S.A. § 310 (1)

Deliberations

1. Deliberations in public

2. Private deliberative sessiona) To make a decisionb) Consider whether you need

more evidence

Deliberations

Recommendation: Use private deliberative session to reach your decision.

The deliberations of a appropriate municipal panel, held in conjunction with a quasi-judicial hearing, are exempt from the open meeting law. 1V.S.A. 312(e).

Deliberations

Private deliberative session allows a board to reach its decision without undue influence from the parties in the case.

Private deliberations should result in a better-reasoned and more thorough decision.

Deliberations

Unlike other board meetings, deliberations do not have to be noticed or warned.

There is no requirement to take minutes of deliberations.

Judges and juries deliberate in private.

Deliberations

Conducting deliberations via e-mail does not violate the open meeting law.

Written decisions can be drafted and circulated by email for review and comment by board members.

Deliberations

Consider each applicable standard.

Consider the relevant, credible evidence that proves or disproves compliance.

Place conditions on approval when necessary to implement the bylaw.

Decisions

“Decisions shall be issued in writing and shall include a statement of the factual bases on which the appropriate municipal panel has made its conclusions and a statement of the conclusions.”

24 V.S.A. § 4464 (b) (1)

Decisions

Findings of fact are “a determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record.”


Decisions

Avoid making verbal decisions in open session

All conditions may not be included in motion to approve.

Possibly vote to approve and discover the board wants to deny.

A standard is missed and there is no evidence to show compliance.

Decisions

Findings of fact shall be based exclusively on evidence produced during the public hearing.

Findings must explicitly and concisely restate the underlying facts that support the conclusions and decision.

Decisions

Written decisions in quasi judicial proceedings do not need to be adopted in a open meeting.

Site VisitsSite Visits

Site Visits

# 1 Tool Recognized by the courts as an

important function of land use

review.

Refusal of a site visit is not

grounds for denial.

Site Visits

#2 Scheduling

Must be warned

Public must be able to

attend

Site Visits

#3 Not part of Hearing

Any observations from the

site visit must be stated for

the record at the hearing, if

they will be the basis for

making a decision.

Site Visits

#4 Ex parte Communication

Site visits are not the place to

take testimony.

Do not engage in

conversation with interested

persons.

Site Visits

#5 Primary function

Is to put evidence into

context. Where is construction taking

place?

How tall will the buildings be?

SummarySummary

AMPs act like a court and must give interested persons “due process.”

Focus on the bylaws at play and the relevant credible evidence that supports the bylaws.

To use observations obtained during a site state them for the record at the reconvened hearing.

Any further questions?

Suggestions for next time or comments:

Stephanie Smith, [email protected]

For more information:www.vpic.info -Implementation

Manualwww.vlct.org- Resource Library

Municipal Education Grant Fayston, Vermont June 9, 2009

Documents

Transcript of Municipal Education Grant Fayston, Vermont June 9, 2009