Municipal Education Grant Fayston, Vermont June 9, 2009

1. Municipal Education GrantFayston, VermontJune 9, 2009 Quasi Judicial Hearings Taking Evidence And Site Visits Stephanie Smith, AICP Senior Associate VLCT Municipal Assistance Center

2. Overview • Municipal Land Use Officials • Quasi Judicial Hearings • Managing Hearings • Site Visits

3. 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).

4. Municipal Land Use Officials

5. Administrative 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.

6. Administrative 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

7. Administrative OfficerAppeals • 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.

8. Administrative OfficerAdministrative 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

9. Administrative OfficerAdministrative 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.

10. Appropriate 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.

11. 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.

12. Appropriate Municipal Panel Every AMP has two primary functions: • To afford applicants and interested persons fair and consistent quasi-judicial hearings. • 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.

13. Meetings & Hearings

14. Two Types of Public Assemblies • Meetings • Quasi Judicial Hearings

15. 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

16. Meetings

17. When are we meeting? • The AMP is meeting when • acting in a rule making capacity • working on ministerial duties.

18. 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

19. Basic Open Meeting Law Requirements Minutes • Minutes must be kept and include: • All members of the public body present; • All other active participants • All motions, proposals, and resolutions made and their result; • Results of any votes, with a record of individual votes if a roll call is taken • Minutes must be available 5 days after the meeting

20. Basic Open Meeting Law Requirements • 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).

21. Quasi-Judicial Hearings

22. 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.

23. 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

24. Minutes • 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)

25. Five Hallmarks of a Quasi-Judicial Hearing • Rights of parties are being considered • All parties can present evidence • All parties can cross-examine witnesses/question evidence • Written decision • Appealable

26. Constitutional 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 . . .”

27. The Essence of Due Process • Providing Notice • The government is taking action that may effect your property • 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

28. Managing Hearings

29. Managing Hearings • Role of the Administrative Officer • Role of the Chair • Role of the Parties • Role of the Appropriate Municipal Panel

30. 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

31. Role of the Administrative Officer Application Requirements • 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

32. Role of the Administrative Officer Application Requirements • 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 !!!

33. Application RequirementsChecklist • 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

34. The 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.

35. The 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.

36. The Role of the ChairOrder 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

37. The 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.

38. The 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

39. The Role of the Appropriate Municipal Panel The AMP is both Judge and Jury • Focus on • Parties • Offered relevant and credible evidence • Bylaws

40. The Role of the Appropriate Municipal Panel The AMP is not aboard: • 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

41. 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.

42. The Role of the Appropriate Municipal Panel • 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

43. 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

44. 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. Black’s Law Dictionary 8th Edition

45. Taking Evidence • 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?

46. 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 decision For oral evidence, keep a record of: • Who spoke • What was said

47. 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)

48. 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

49. Technical Review Technical Review Need assistance in determining the facts due to: • Competing experts or information • Complex application for development • Inability to determine whether standards are met

50. 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)