News

In judicial role, town boards have limited fexibility

By Bill Moss, Published: May 7, 2018

Coming off a contentious and emotional public hearing on a widely opposed zoning application, Laurel Park Town Council members got a tutorial from its attorney on their role as decision-makers in judicial-like setting.

The council asked for the legal explanation of its its authority — and the boundaries of that authority —after its OK earlier this year of a conditional use permit for phase 1 of the Cottages at Arcadia View, which neighboring homeowners have strongly opposed.
Town Attorney Sharon Alexander told council members that state law gives them little latitude when they sit as a quasi-judicial body. That question has come up, too, in Hendersonville. Council members there were so uncomfortable with the role that they ordered a rewrite of the zoning code to eliminate most quasi-judicial hearings, which tend to frustrate constituents who are told their objections don’t qualify as legal evidence or that they don’t have legal standing to participate as witnesses. State law, not a town’s land-use code, governs the process.
“While there’s no inherent authority, there’s a whole lot of almost inherent limitation imposed on you,” Alexander told Laurel Park council members. “You can’t listen to your constituents, be lobbied in the grocery store. You can’t use any of that to make your decision because you’re acting like judges.”
The council sits as a quasi-judicial body when it decides conditional use permits or appeals of a staff decision.
“Everybody who has standing gets the right to present evidence, evidence that’s not opinion but evidence,” she said. “Everybody with an interest, the applicant and landowners, can confront the evidence, cross-examine the evidence that’s presented. Part of the reason you can’t talk outside the meeting is everybody is entitled to know what the evidence is that you all are basing your decision on.”
It’s unavoidable that the council hears opinions about controversial matters before it decides.
“It doesn’t mean you’ve heard nothing at all,” she said. “It is that whatever you’ve heard, you can set it aside, you can be fair and impartial to all sides of that matter. … The appeal from you is to Superior Court. When they go to court, they take all that evidence in the record and they take each finding and look for the evidence you received that supports that finding.” If an appellant asserts that “you acted outside your authority or you acted arbitrarily that can be a difficult issue to prove but it also can be a difficult issue to defend. The process is a lot about protecting the record… that supports your decision and protects you.”
“If they satisfy the requirement, you have to issue. It makes it, not an easy job I guess, but an easy decision to defend,” she said.
Sitting in a quasi-judicial role, she said, the council has no leeway if a zoning applicant meets or fails to meet the requirements set out in a conditional use permit.
“If it’s there, you’ve got to do it. If it’s not, you can’t do it,” she said.
Council members agreed that it’s impossible to explain to a roomful of anxious homeowners that most of their objections don’t qualify as factual evidence.
“That’s my dilemma,” said George Banta. “How do we convey to the general public that we are bound by these rules and regulations? We can’t just vote no because you don’t like it.”
There’s not much the town board can do, the attorney responded.
“They’re really going to be dealing in a very emotional part of their life and they frankly aren’t going to be able to hear it, I don’t believe,” she said.