The county board of commissioners is holding a public hearing on a controversial rezoning. A sizable contingent of neighbors who oppose the project are present. Many have signed up to tell the commissioners just how terrible it would be if the rezoning were to be approved. Anticipating that opposition, the developer has brought nearly as many folks to speak in favor of the rezoning. Looking out over the restless crowd awaiting the commencement of the hearing, it appears the board is in for a long evening.
Would it be legally permissible for the board to set time limits for the speakers at this rezoning hearing, say three minutes per speaker? How about an overall time limit, such as giving the proponents and opponents 30 minutes each? If so, could those same time limit rules be applied next month to a similarly controversial hearing on a special use permit?
For the rezoning, reasonable time limits are perfectly acceptable. For the special use permit, not so much so.
At the outset it is critical to distinguish these two different types of public hearings. For legislative zoning decisions – the decision to adopt, amend, or repeal an ordinance – state statutes mandate a public hearing to gather public comments on the wisdom and desirability of the policy being proposed. For quasi-judicial zoning decisions – the decision on a special or conditional use permit or variance – the decision-making board must conduct a hearing to gather factual evidence as to whether the particular application meets the standards set out in the ordinance. These are two very different types of hearings. The first is designed to solicit public opinion while the second is designed to gather quality factual evidence. This difference leads to different rules explored in prior blog posts, such as limits on receiving information outside the formal hearing, the presentation of opinions by the speaker, and even who is entitled to speak at the hearing. This difference also results in somewhat different considerations in determining whether and how to have time limits for those speaking at zoning hearings.
Public hearings on legislative land use regulatory decisions have been mandatory since zoning was first authorized in 1923. The law mandates a formal hearing before the governing board prior to a decision to adopt, amend, or repeal a zoning ordinance. G.S. 160A-364; 153A-323. Since a zoning map is part of the zoning ordinance, amending the map to rezone a parcel of land is a legislative decision that mandates a public hearing.
This hearing is a legislative hearing. The purpose of a legislative hearing is to secure broad public comment on the proposed action. The governing board is receiving comments, not hearing evidence.
The general statutory guidance for legislative public hearings is G.S. 160A-81 for cities and G.S. 153A-52 for counties. These statutes allow the governing board to
adopt reasonable rules governing the conduct of the public hearing, including but not limited to rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing.
So, reasonable rules may be established to limit the number of speakers and the amount of time each speaker is given, provided that the hearing is conducted in a fair and reasonable fashion. Speakers can also be required to limit their remarks to those addressing the subject of the hearing.
This principle was confirmed in Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282 (1968). Some 500 citizens attended the required public hearing on the adoption of zoning for the Chapel Hill Township. The chair allotted one hour each to the proponents and the opponents of the zoning ordinance, with each side also having fifteen minutes for rebuttal. Sixteen proponents and fifteen opponents were heard. In a show of hands it appeared that the attendees at the hearing were by a four-to-one ratio opposed to the adoption of zoning. Some 200 attendees indicated that they wished to speak but were not allowed to do so because of the time limitation. The court upheld this procedure, ruling that the legislative intent was to mandate a hearing and provide a “fair opportunity” for those in attendance to present their views. However, the governing board was allowed to establish an “orderly procedure” for the hearing, for “[t]he General Assembly did not contemplate that all persons entertaining the same views would have an unqualified right to iterate and reiterate these views in endless repetition.” Id. at 457, 160 S.E.2d at 286.
In our example, the county board can limit both the time allowed for individual speakers and the overall time allowed for all speakers. If this is to be done, it is advisable for the board to have clear, fair rules on this point and to make those rules available to all concerned persons. If the rules go beyond time limits for individual speakers, some attention needs to be given to how speakers are selected. For example, many cities and counties have a sign-up sheet available a set time prior to the start of the hearing and take speakers in the order of sign-up. Some provision also needs to be made to assure that proponents of one side of a controversial issue are not allowed to monopolize the hearing to the exclusion of opposing points of view. It is preferable if these rules are adopted and distributed well before a controversial hearing arises, but at a minimum they should be announced and explained at the outset of the hearing.
The hearing required for a quasi-judicial decision is an altogether different type of hearing. Beyond the use of the term “hearing,” these evidentiary hearings have little in common with the more familiar legislative hearing. It is certainly a “public hearing” in the sense that it must be held in compliance with open meetings and public records laws and any notice provisions in the applicable ordinance. But it is not a “public hearing” in the traditional sense of being an opportunity for all members of the public to appear and express their views on a pending public policy choice. The purpose of an evidentiary hearing on a quasi-judicial zoning matter is not to gather public opinions and suggestions as to the policy to be applied. The policy is already set in the ordinance. The board making the decision must apply those existing policies to a specific application. Rather, the purpose of the evidentiary hearing is to gather legally sufficient factual evidence to apply those standards to the application.
Our courts have held that since quasi-judicial zoning decisions affect the property rights of the applicant and other affected persons, due process requires that certain procedural safeguards be observed. The hearing is a principal means of securing the required substantial, competent, and material evidence to support the board’s factual findings. In Jarrell v. Board of Adjustment, 258 N.C. 476, 128 S.E.2d 879 (1963), the court held that a degree of informality is allowed in the conduct of evidentiary hearings for quasi-judicial zoning decisions and that the technical rules of evidence applicable in court proceedings need not be strictly followed. But the court went on to hold that notwithstanding this latitude, basic due process rights require a board’s critical factual findings to be based on competent and substantial evidence that is properly in the hearing record. In Humble Oil & Refining Co. v. Board of Aldermen the court held that a party whose rights are being determined in a quasi-judicial zoning matter must be provided an opportunity “to offer evidence, cross-examine adverse witnesses, inspect documents, and offer evidence in explanation and rebuttal.” 284 N.C. 458, 470, 202 S.E.2d 129, 137 (1974).
Given these legal requirements, do the parties at these hearings have a legal right to present any and all of the testimony they want? No. The right to present evidence is tempered by the fact that the board can and should exclude irrelevant and immaterial testimony. Witnesses should be admonished to keep their testimony to presentation of evidence that will establish whether or not the application meets the standards in the ordinance. There is also no need to hear the same evidence repeated multiple times. The courts have noted that time limits on presentations, requiring groups of persons with common interests to designate a spokesperson, and admonitions to avoid repetitive, irrelevant, or incompetent testimony are all acceptable means of providing the necessary structure to these proceedings. Howard v. City of Kinston, 148 N.C. App. 238, 558 S.E.2d 221 (2002).
If time limits are set for presentation of evidence in a quasi-judicial zoning matter, those limits must be reasonable. While strict time limits may well be appropriate for legislative decisions, care must be taken not to unduly limit the presentation of the substantial, competent, material evidence that is necessary to support a quasi-judicial decision. Any time limit applied in a way that precludes a party from fairly presenting or challenging legally sufficient evidence is inappropriate. It is entirely appropriate to direct a witness to get to the point and to avoid repetition. It is entirely appropriate to limit redundant testimony from multiple witnesses. It is equally important, however, to observe the constitutional requirement that parties’ rights to present relevant testimony be respected. This is one of the reasons that time limits in evidentiary hearings are generally applied on an ad hoc basis by the presiding officer rather than being predetermined in rules of procedure.
In sum, reasonable time limits for speakers at zoning hearings can be applied. For legislative matters, boards have greater latitude in setting these limits. The time limits chosen in a legislative decision context should balance the needs to secure detailed public input on policy choices, to hear from a broad range of speakers, and to make efficient use of the board’s time. Fairly applied time limits on speakers can help accomplish this. For quasi-judicial matters, time limits may be suggested, but they must be set in the context of allowing affected parties to adequately present relevant facts to the board. If the time limit would preclude presentation or challenging of relevant evidence, the time limit must give way to those constitutional rights.