“Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record” (NCGS 160A-388(e2)). Without such evidence, the decision is arbitrary and an abuse of the discretion vested in the board (Godfrey v. Zoning Board of Adjustment, 317 N.C. 51 (1986)). So what is the record? What evidence goes in that record? And how is the evidence obtained? This blog explores those and other questions.
Evidentiary Hearings, Generally
For a typical quasi-judicial decision—a special or conditional use permit or a variance—the decision-making board is acting like a trial court. The board holds an evidentiary hearing to accept and review documents and testimony. The board is determining the facts and ruling on the law. The board is answering the broad question: Does the evidence show that the applicant meets the standards for the variance or permit? Through the evidentiary hearing, the board builds the record upon which the decision is based. And, if the decision is appealed, the superior court will base its review upon that record.
According to NCGS 160A-393, the record created by the evidentiary hearing “shall consist of all documents and exhibits submitted to the decision-making board . . . together with the minutes of the meeting or meetings at which the decision being appealed was considered.” This may include the application; the staff report; photographs, plans, and diagrams; studies and reports prepared by the applicant; exhibits presented by opposing parties; and all of the testimony at the evidentiary hearing. In other words, the record includes all of the materials and input that is presented to the board.
The evidentiary hearing may be taped (audio and/or video), but there is no requirement for taping. If a tape is made and the quasi-judicial decision is appealed to superior court, then any party may request that a tape be included in the record. Additionally, a party may request that a transcript be included in the record on appeal. The requesting party bears the cost of producing the transcript (NCGS 160A-393(i)).
What if the tape messes up? In Fehrenbacher v. City of Durham, __ N.C. App. __, COA14-712 (February 3, 2015), the city taping equipment malfunctioned and failed to record the first hour of testimony. The court noted that affidavits from the neighbors covered the substance of the missing testimony, and moreover, the statutory requirement states that tapes may be requested “if such a recording was made.” In this case, a recording was not made for a portion, and there is no obligation to create a recording.
Distinguishing Evidence within the Record
We need to make a clear distinction, here. The record of a quasi-judicial decision is composed of various pieces of evidence. Some of that evidence in the record is good: the application, factual testimony from opposing parties, expert opinion testimony. Some of that evidence in the record is incompetent, immaterial, and insubstantial. This may include unqualified speculative opinion, a petition from neighbors, hearsay evidence, or irrelevant facts, for example. For this discussion, I will call that insufficient evidence. In other blogs, my colleagues David Owens and Rich Ducker have written about distinguishing good evidence from insufficient evidence and the details of sworn testimony, opinion evidence, expert evidence, and ex parte evidence.
Legally, the board must base its decision on competent, material, and substantial evidence in the record—good evidence. But, in practice and as a result of the process, the record may include incompetent, immaterial, or insubstantial evidence. So what do we do with all of the insufficient evidence? Do we strike it from the record?
No. Insufficient evidence may remain in the record, but may not be the basis of the quasi-judicial decision. Quasi-judicial boards must adhere to the procedural requirements of constitutional due process, but boards are not required to follow the strict rules of evidence that apply in a courtroom. Some informality is allowed for the quasi-judicial board. As such, courts allow that the inclusion of some insufficient evidence as part of the record is not a due process violation.
“The question is whether there is substantial evidence in the whole record to support the findings and conclusions.” Where the court has determined that the record includes competent, material, and substantial evidence to support the Board’s decision, the admission of other arguably incompetent evidence does not infringe upon the parties’ due process rights (Dobo v. Zoning Bd. of Adjustment of City of Wilmington, 149 N.C. App. 701, 709-10, 562 S.E.2d 108, 114 (2002)rev’d on other ground, 356 N.C. 656, 576 S.E.2d 324 (2003)).
To be clear the board cannot base its decision upon insufficient evidence in the record. Where an applicant presents evidence to show the he meets the standards for a special use permit, the burden shifts to opponents to produce evidence to the contrary. If neighbors produce nothing more than unrelated comments and speculative opinions (insufficient evidence), then the board does not have sufficient evidence to deny the permit. The board must approve the permit. (Blair Investments, LLC v. Roanoke Rapids City Council, 752 S.E.2d 524 (N.C. Ct. App. 2013)).
Getting the Evidence
Application and Evidentiary Hearing. Generally, the evidence creating the record is provided by the parties, either in advance of the hearing (with the application) or as part of the evidentiary hearing. Indeed, the burden typically is on the applicant to present the evidence that they meet the applicable standards.
Administrative Record. In addition to the typical evidentiary hearings described above, the board of adjustment is tasked with handling appeals from decisions made by zoning administrators and historic preservation commissions. David Owens has written about these types of appeals to the board of adjustment. When that happens, the case comes to the board of adjustment with a record.
Consider an appeal of an administrative decision such as issuing a notice of violation or making a formal interpretation of the ordinance. When an administrative decision is appealed, the zoning administrator who made the decision “shall transmit to the board all documents and exhibits constituting the record.” The zoning administrator also must provide the record to the appealing party and owner of the property (NCGS 160A-388(b1)).
Preservation Commission Record. When a decision from the historic preservation commission is appealed to the board of adjustment, the preservation commission should transmit to the board of adjustment the record of its decision, including all documents, exhibits, and minutes. Tapes and transcripts, if any, may be included.
For these appeals from the preservation commission, the board of adjustment is acting as an appeals court. The technical scope of review is outlined at NC General Statute 160A-393(k). In sum, the board reviews the record to determine whether there is sufficient evidence to support the decision made by the preservation commission, and to determine whether the actions taken were authorized and appropriate under the law. The board of adjustment may hear legal arguments from the parties, but the board does not take new factual evidence or testimony.
Subpoena. In some cases, though, the quasi-judicial board may need to compel production of evidence. Under NC General Statute 160A-388(g) boards of adjustment and other boards making quasi-judicial decisions are authorized to subpoena witnesses and compel the production of evidence. A party to the case may request that the chair of the board subpoena a witness or compel evidence. The chair makes the decision about issuing subpoenas; that decision may be appealed to the full board. If a party fails to comply, the board or the party requesting may seek an order requiring compliance from the General Court of Justice.
Appeals to Court—Supplementing the Record
When a decision from a quasi-judicial board is appealed to superior court, the reviewing court is acting like an appeals court. Generally, the court must base its decision on the record that was before the decision-making board.
But, for certain topics, the court may supplement the record. The reviewing court may “allow the record to be supplemented with affidavits, testimony of witnesses, or documentary or other evidence if, and to the extent that, the record is not adequate to allow an appropriate determination” of specific legal standards:
- legal standing
- conflicts of interest
- actions that are unconstitutional or in excess of the board’s statutory authority
Additionally, under NC General Statute160A-393(i), the court may direct that matters be deleted from or added to the record (Fehrenbacher, __ N.C. App. __, COA14-712 (February 3, 2015)).
As stated in the statutes and case law, “[e]very quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record.” The record is all of the materials and input that is presented to the board, including the application, exhibits, testimony, and related materials. The record for a quasi-judicial decision may include some insufficient evidence, but the board may not base its decision on it. If necessary, the quasi-judicial board may subpoena witnesses and compel production of evidence for the record. In the case of appeals to the board of adjustment, the case comes with its own record. And, in the case of appeals from the quasi-judicial decision, the superior court must rely on the record before the board and may supplement the record for certain topics.