I often get e-mails from citizens asking for me to respond regarding development proposals that are coming before us.  These are usually developments that have already been filed with the town, and that are going through some type of review by our advisory boards.  I find myself explaining time and again that whether I am able to discuss a development depends on what kind of decision I ultimately have to make as an alderman.

Our town attorney, Mike Brough, has constructively advised us about this in the context of conditional use rezoning as I have reprinted below (the rest of this post, except for my comment in brackets which refers to two footnotes in his original memo, are his words):

Subject:  Discussion Outside Hearing Regarding Conditional Use Rezonings

The place to begin is with an understanding of the differences between legislative decisions and quasi-judicial decisions.  The legal theory is that, when the Board acts in its legislative capacity, it is making general policy decisions based on its collective view as to what best serves the public health, safety, or general welfare.  In making those types of decisions, the Board is free to act based on information gathered from any source, i.e. it is not bound to act solely upon information received at a public hearing.  In contrast, a quasi-judicial decision is one in which the Board is called upon to apply previously established policies or standards to the facts of a particular situation.  The law requires that such decisions be made based solely on information received at a hearing at which the due process rights of interested parties are protected,  including the right to have witnesses be sworn and to be subject to cross examination.

Unfortunately, applying these legal theories to the realities of zoning is like trying to fit the proverbial square peg into the round hole.  For example, when considering a proposal to rezone a specific piece of property, it seems that a good argument can be made that this does not involve setting general policy and should therefore not be regarded as a legislative decision, but case law has firmly established that zoning amendments are to be treated just like other legislative decisions.  The distinctions between legislative and quasi-judicial decisions become even more blurred in the context of conditional use rezonings, as discussed below.

When the Board considers conditional use permit applications, it acts in its quasi-judicial capacity.  G.S. §160A-388(e1) provides:

 A member of [the Board] exercising quasi-judicial functions pursuant to this Article shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons constitutional rights to an impartial decision maker.  Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.   If an objection is raised to a member’s participation and that member does to recuse himself or herself, the remaining members shall by majority vote rule on the objection.  [Emphasis added].

While it is not exactly clear what the term “ex parte communications” means in this context, it seems certain that the term includes private meetings with proponents or opponents of a CUP.  If such meetings are not disclosed at the hearing, the member is not allowed to participate or vote.  And it is apparent how easy it would be for a Board member to forget to mention one or more such discussions, particularly if there are many.  Moreover, even if all such “ex parte communications” are disclosed, a question could be raised as to whether such communications have biased the member one way or the other or violated the principle that quasi-judicial decisions are to be based solely on the information presented at the hearing.  For these reasons, I have advised that Board members should decline requests to meet with or engage in oral or written discussions with proponents or opponents of projects that require conditional use permits.  [Note:  Our Town Attorney has advised us to forward to the Town Clerk emails that we have received supporting or opposing CUP projects.  The Clerk can then “disclose” them at the hearing by entering them into the record.  Further, discussions regarding what might be developed on a tract or what the Board member would like to see do not run afoul of the “ex parte communication” principle in his judgment.  However, when a particular form of development has been proposed, he opines that the concern arises, even though a formal application may not yet have been submitted (the LUO now requires that an applicant for a special or conditional use permit submit a concept plan to a joint advisory board meeting before an  application is filed).]

In contrast, since zoning map or text requests are regarded as legislative in nature, there is no legal restriction on Board members meeting privately with persons who support or oppose such requests, and such communications do not have to be disclosed.  However, as a prudential matter, pre-public hearing commitments on supporting or opposing a particular rezoning proposal should generally not be made in order to avoid the criticism that the public hearing is of no consequence.

The lack of restrictions on pre-public hearing communications regarding zoning map or text amendments clearly applies not only to general use district rezonings but also to rezonings to conditional zoning districts (two such conditional districts have been established by Section 15-141.6 of the LUO:   B-2 Conditional and B-1(g) Conditional).  In conditional zoning, no CUP is issued, but the rezoning is approved subject to conditions that are written right into the rezoning ordinance itself – thus the process is regarded as legislative.  Shelton Station is an example of a conditional rezoning.

Conditional use rezonings (authorized by LUO Section 15-141.3) present a more complex situation.  The ordinance requires that the applicant for  a conditional use rezoning submit simultaneously both a rezoning request and a conditional use permit application, and further provides that both “shall be processed and reviewed concurrently.”  A single public hearing is held, using quasi-judicial procedures, but votes on the two requests are held sequentially.  The ordinance clearly states that the Board makes a legislative decision on whether to grant the rezoning.  If the rezoning is denied, that effectively denies the CUP request.  If the rezoning is approved, the Board votes on the CUP just as it would any other CUP.

In theory, because the Board makes a legislative decision when it votes on the rezoning component of a conditional use rezoning request, pre-hearing conversations about the merits of just the rezoning proposal would be unobjectionable.  However, the reality is that in most all cases it will not be possible to confine the discussions to the rezoning while avoiding discussions about the CUP.  After all, it is the CUP that defines what the applicant actually proposes, and not the rezoning, which potentially authorizes a much wider range of uses. If conditional use rezonings were always turned down, this would not matter since the Board would never reach the quasi-judicial decision (the CUP).  However, the ex parte communication limitation would come into play if the rezoning is approved and the Board is then called upon to consider the CUP.  Therefore, I recommend that Board members treat conditional use rezonings just like standard conditional use permit requests in terms of avoiding ex parte communications.