How to Conduct an Appeal-Proof Hearing on Zoning Issues: Following Appropriate Procedures is Necessary
(from Maine Townsman, May 1997)
by Curtis Webber, Esq., Linnell, Choate & Webber

Not so many years ago, appeals from zoning decisions by local boards were rare. The Maine Supreme Court was seldom required to decide a zoning appeal. Now, all that has changed. Land has become more valuable and people have become more litigation-minded. The result is that zoning appeals are now commonplace and many cases are appealed all the way to the Maine Supreme Court. Following appropriate procedures in conducting a contested hearing has therefore become very important.

Although there are certain procedural rules administrative boards should follow during a hearing, they are all based on the concept that the parties are entitled to fair play. That means they are entitled to be heard by a board which is unbiased and to receive a decision which is based only on evidence which is presented at the hearing. It also means that everyone who has a stake in the matter is given a chance to be heard.

QUASI-JUDICIAL ROLE

It is unlikely that most board members think of themselves as judges. They don’t wear robes and no one expects them to apply the same rules of evidence which are used in court. However, they are called upon to make decisions about important property rights. If they refuse to approve a subdivision or special exception request, the value of the property in question may drop sharply. Because so much may turn on their decisions, they have to act like administrative judges in determining what people’s rights are. This means that they will have to use a little more formality in some situations than they would have to if they were making legislative decisions, like city or town councilors. Local zoning decisions are quasi-judicial in nature.

In a case which arose in Lisbon a few years ago, the board of appeals turned down a conditional use request because the neighbors who came to the hearing didn’t want it. If this had been a political decision, there would have been nothing wrong with counting noses. However, in this case, the Board should have granted the conditional use permit since the applicant met the ordinance requirements, regardless of how upset the neighbors were. Because board members, in such cases, act quasi-judicially, they aren’t always going to be popular.

WRITTEN APPLICATION

In some cases, an applicant for a zoning permit is required by state law or local ordinance to make his request in writing. There are good reasons for requiring that a written application be filed in all cases whether or not it is required by statute or ordinance. Where a written application is not required by state law or local ordinance, the board can adopt a bylaw or internal regulation making it a requirement.

For one thing, the process of filling out an application obliges the applicant to consider the ordinance procedure he must follow and think through the basis upon which he must show that he is entitled to relief. It is helpful for the applicant to realize that, in order to be successful, he must meet the tests set forth in the ordinance and that he cannot simply rely on trying to persuade the board members that what he is seeking will do no harm.

When a particular section of the zoning ordinance or subdivision regulation is at issue, it would be helpful to the board to require that it be identified in the application. This gives immediate focus to the appeal and may save board members the necessity of thumbing around in the ordinance during the hearing looking for the relevant section. If the code enforcement officer has adopted an interpretation of the ordinance which is in controversy, the applicant should be expected to explain the basis for his disagreement with that decision.

The application form should also require that the applicant indicate the basis on which he has standing to proceed with the application. For example, a developer who is submitting a subdivision application should be expected to identify his interest in the land in question. If he has an option to purchase, that is probably sufficient, but if there is nothing more than an oral promise to sell, or, if he is acting as someone else’s agent, more should be required. Standing can also be an issue at the hearing for the purpose of determining whether those speaking in opposition to the application have sufficient interest in the dispute to justify being heard. The usual rule is that, in order to have standing to oppose a variance or special exception request, a person must demonstrate that he will suffer a particularized injury if the application is granted. Harrington v. City of Biddeford, 583 A.2d 695, 696 (Me. 1990).

In the case of an administrative appeal from the decision of a code enforcement officer, the application form should also reflect the date of the CEO’s decision. In most cases, local ordinances establish a fixed time period such as 30 days within which such appeal can be taken. Inclusion of the date of the decision being appealed makes it quickly apparent whether the appeal in question is timely.

NOTICE OF HEARING

With respect to board of appeals hearings, state law requires that "reasonable notice" be given to all "interested persons." 30-A M.R.S.A. 4353(3). This implies that some kind of public notice be given such as by newspaper with written notice to the abutting landowners. The notice should state what it is that the applicant wishes to do. Where a particular section of the ordinance is involved, that section should be noted. Notice in the case of planning board hearings is governed by local ordinance or regulation except in the case of changes in the ordinance or map (30-A M.R.S.A. 4352) or subdivisions which are governed by state law (30-A M.R.S.A. 4403(4).

COMPOSITION OF THE BOARD

Voting Members of the Board

Nothing in the statutes prescribes the size of a local planning board. Ordinarily, this is done by local ordinance.

By statute, boards of zoning appeals must be composed of 5 or 7 members. 30-A M.R.S.A. 2691(2). Presumably, a local ordinance or internal rule will set forth the number of alternates and the method by which an alternate is chosen to replace an absent voting member. Some communities allow alternates to participate in the discussion even if they are not replacing voting members, although this procedure would seem to be questionable once public discussion has been cut off.

There are no quorum requirements for planning boards other than those established by local rules. Where boards of appeal are concerned, a quorum of a majority of the members is required. 30-A M.R.S.A. 2691(3)(A).

Conflicts of Interest

Another preliminary issue is whether any member of the board has a conflict of interest which would prevent him or her from participating in the hearing. State law provides that proceedings of municipal boards are voidable if an official votes who has a direct or indirect pecuniary interest in the outcome. 30-A M.R.S.A. 2605. A "direct" pecuniary interest would exist if a member might benefit financially, depending on the outcome of the proceeding. An indirect interest would exist if, for example, the employer of a member would benefit directly and might see fit to give the board member a raise or better job security if the result of the hearing were favorable.

A board member must also abstain from participating if he or she is related by blood or marriage to one of the adversary within the 6th degree. 1 M.R.S.A. 71(6). Interestingly enough, the prohibition does not apply to close friends or even lovers. However, if a board member feels uncomfortable because of his or her relationship with one of the parties or believes that his or her participation will create the appearance of a conflict even if none legally exists, the member should excuse himself or herself.

The statute governing proceedings of municipal officials requires that an abstaining member must disclose his interest in the matter and make no effort to influence the outcome of the proceedings. 30-A M.R.S.A. 2605(4). This provision would seem to prohibit the practice sometimes followed whereby a board member steps down, but then participates in the debate as a member of the public. In any case in which a board member who has been challenged believes he has no conflict of interest, the question of whether or not he should sit can be resolved by vote of the other members of the board. 30-A M.R.S.A. 2691(2)(c).

CONDUCTING THE HEARING

At the beginning of the hearing process, the chairperson should make an opening statement. He should explain the procedure which will be followed. If the hearing is being taped, the chairperson should explain the use of the microphone and request that each speaker identify himself for the record.

Order of Presentation

One of the topics which the board chair should address is the order in which proof will be presented. Ordinarily, it is best to follow a trial-type format in which the applicant goes first. At some point, persons in the audience who oppose the application should be given an opportunity to question or cross examine the applicant and his witnesses. Where a number of people are present or time is limited, the chairperson may restrict the questioning to a single representative on each side. Witnesses can be put under oath, but this is not usually required.

After the applicant has presented his side of the matter, the opponents should have the same opportunity in reverse. The chairperson can decide whether to allow rebuttal and surrebuttal based on the custom of the board and the lateness of the hour. Time limits can be placed on speakers which will be upheld if not overly arbitrary. Usually it is best, if time permits, to let everyone get whatever he has to say off his chest.

Recording the Proceedings

More and more planning boards and boards of appeals appear to be taping their proceedings these days. The reason is that, unless the minutes are unusually complete, the Superior Court on appeal will have no very good way of determining whether the evidence presented was sufficient unless a transcript is available. Where there is no transcript, the Superior Court judge on appeal may send the matter back to the board for rehearing. In order for an intelligible transcript to be made, however, the chairperson will have to make sure that each speaker is identified and that comments from members of the public are picked up by the tape player. One way to accomplish this is to insist that all speakers be recognized by the chair before speaking.

Sometimes an applicant for a permit or his attorney will bring a tape recorder or a court reporter to a hearing as a psychological device. The purpose is to make board members aware of the fact that the matter is significant and may be appealed if due process is not observed. Board members have nothing to fear from transcribing the hearing, however, as long as minimum requirements of fair play are observed.

Evidence

If the hearing were being held in a courtroom, it would be clear that the lawyer’s statements are not evidence. The lawyers merely predict what the evidence will be in their opening statements. In administrative hearings, however, the lines between evidence and hearsay are blurred. Permitting the attorneys to summarize the evidence speeds things up. People forget, however, that the attorney probably did not witness any of the events he or she is describing. Probably most boards will continue the practice of allowing lawyers to testify, but they should at least feel free to ask questions and to insist that real proof be offered with respect to statements which seem questionable.

Everyone understands that the strict rules of evidence don’t apply in hearings before planning boards or boards of appeal. What should the chairperson do when one side objects to something which the other side is presenting? The best rule of thumb is for the chairperson to decide whether the evidence will assist the board in deciding the issues before it. Is there anything about the evidence being challenged which is particularly suspect? If it passes these tests, it should probably be admitted with the classic observation that the "objection is noted."

One type of hearsay evidence which should definitely not be considered is the ex parte conversation between a board member and someone else outside the hearing. All too often, members of the public will call a board member at home about a pending issue just as they would one of the their selectmen. It would clearly be unfair, however, for this kind of evidence to be considered, since the other side has no chance to deny it or explain it away. The board’s decision should be made solely on the basis of evidence presented at the hearing so that both sides can hear it and respond. If a board member allows himself or herself to be drawn into such a conversation outside the hearing, and the information provided is helpful to the prevailing party, the party who loses could have the results of the hearing overturned. Such ex parte conversations were expressly condemned by the Maine Supreme Court in the case of White v. Town of Hollis, 589 A.2d 46 (Me. 1991). Therefore, a board member who finds himself being lobbied in connection with an upcoming adversary hearing should explain that, because he will be acting in a quasi-judicial role, it would be improper to participate in such a discussion.

Meetings Which Can’t be Completed in One Day

Sometimes a contested hearing cannot be completed in one session and has to be adjourned to another day. There is ordinarily no problem with notice, since an oral announcement by the chairperson regarding the time, date, and place where the hearing will be resumed will be presumed to have reached everyone who cares.

What about board members who miss the first meeting but are present on the day when the hearing resumes? Can they participate even though they missed the first part of the hearing? In the case of Pelkey v. Presque Isle, 577 A.2d 341 (Me. 1990), the Maine Court held that such participation would invalidate the hearing. However, in the more recent case of Lemont v. Town of Eliot, do. no. CV-91-577 (York Cty. 11/17/92), the Superior Court held that, where the absent member had listened to the tape or read a transcript and reviewed the exhibits, he could participate and vote as long as no credibility issues were presented as to which it would have been crucial to have observed the witnesses while they were testifying.

PREPARING THE DECISION

Perhaps the most difficult task which planning boards and boards of zoning appeals must perform in connection with adversary hearings is drafting a decision. State law specifically requires a written decision in connection with subdivision proposals [30-A M.R.S.A. 4403(6)] and in all cases in which a permit or license is denied. 1 M.R.S.A. 407(1). A written decision is desirable even in cases in which state law does not require it. The process of drafting findings of fact and reasons for the decision helps to minimize the possibility that something has been overlooked. The existence of findings and a statement of reasons will also reduce the possibility that the board’s decision will be reversed on appeal. This is because the Superior Court will give great deference to the board’s findings and will not second guess the board if there is substantial evidence to support them. Sherwood v. Town of Kennebunk, 589 A.2d 453 (Me. 1991). In addition, if someone objects to the proposed findings, he is obliged to express his objection at that time so that the board has a chance to correct its findings. If a party fails to object, he will not be permitted to argue on appeal that the findings were incorrect. Pearson v. Town of Kennebunk, 590 A.2d 535, 537, n.1 (Me. 1991).

This means that, at the end of what may have been a long and tiring hearing when everyone simply wants to vote and go home, board members nevertheless are obliged to stay around long enough to draft consensus findings and a statement of reasons for their decision. There are several ways of accomplishing this, although none of them is entirely satisfactory.

One method is for the board to generally discuss what its decision will be as well as the underlying facts and reasons. Someone who has been designated in advance, who may be a staff member or the board’s attorney, takes notes and presents a draft of a decision as well as findings and reasons at the board’s next meeting. The parties can also be invited to submit proposed findings of fact for the board to consider, even though it is not required to adopt them.

The principal difficulty with this method is that it takes too long, unless the board meets weekly. By law, a board of appeals is required to provide a written decision to the parties within seven days of the date it is made. The deadline problem might be avoided by putting off a final vote on the decision until the next meeting takes place. By the time the next meeting comes around, however, the board members may already have begun to forget some of the details of the previous meeting which may have been held a month earlier. It can also be expensive if the services of an attorney are being utilized.

Another method of developing findings of fact and reasons for a decision is simply to have someone such as the chairperson pull together a consensus from the board’s discussion at the end of the meeting. If there is a checklist or list of criteria involved, as in the case of subdivisions, conditional uses, or variances, the chairperson can go down through the list and get the board members’ thoughts on each item. At the end, someone would make a motion which incorporates the consensus findings and statement of reasons.

A third method of obtaining findings of fact and a statement of reasons is for someone to make a motion that the application be granted or denied and explain his reasons for favoring that conclusion. Thereafter, each member of the board orally comments on the motion giving his own statement of reasons for agreeing or disagreeing with the motion. A vote is then taken. A staff member or the chairperson or secretary of the board might be assigned to draft a written consensus statement of the board’s conclusions which could be mailed to the parties following the meeting. The board could ratify or amend this statement at its next meeting. It is essential, however, that each board member’s response be recorded, even if it is simply to say that he agrees with a previous speaker. The Maine Court has held that it would uphold the board’s decision where its findings can be determined from oral statements which appear in a transcript or comprehensive minutes. Laverty v. Town of Brunswick, 595 A.2d 444 (Me. 1991).

In articulating its findings and statement of reasons, the board should also state any conditions which it is imposing on a permitted use. In a relatively recent case, the Maine Court held that conditions orally agreed to but not spelled out will be ineffective. Hamilton v. Town of Cumberland, 590 A.2d 539 (Me. 1991). In that case, the board assumed that the developer would construct the project in accordance with certain commitments which he had orally made in the course of his presentation. The Court held, however, that the developer could not be required to meet these orally expressed conditions unless they were reduced to writing. To avoid this problem, the board should routinely include the following general condition when granting a license or permit:

Plan approval is also conditioned upon compliance by the applicant with the plans and specifications which have been received by the planning board in connection with the development proposal as well as with any oral commitments regarding the project which were specifically made by the applicant to the board in the course of its deliberations.

CONCLUSION

Space limitations have made it impossible to include discussion of issues such as the application of the Freedom of Access law in the context of hearings on zoning appeals. However, it is hoped that this article will nevertheless be of assistance to lay board members who are acting in unfamiliar quasi-judicial roles. The Maine Supreme Court has made it clear in recent years that it will not insist on perfection in the conduct of such hearings as long as basic rules of fair play are observed.