An administrative hearing determines rights and is therefore constrained and subject to rigorous procedures to be orderly and fair to both the proponents and the opponents. Robert’s Rules of Order (newly revised) should be available to the Chairman or the City’s Law Director to resolve parliamentary questions while the hearing is underway. In order to insure a fair and objective public hearing, the following format is suggested:
(a) Open to the Public. An administrative hearing shall be open to the public and all persons interested in the outcome of the appeal or application.
(b) Record of the Hearing. The Chairman should oversee that administrative staff collects and enters all written and oral testimony, administrative comments, and correspondence into the record of the meeting.
(c) Opening of the Hearing. The Chairman should open the hearing at the stated time.
(1) Subject. The Chairman should announce the pending application or appeal and summarize the standards set forth in this UDO for the granting of the application or the appeal.
(2) Rules of order. Participants should be advised that Robert’s Rules of Order shall cover parliamentary issues.
(d) Proper Notice. At this time, recognition that the required public notice publication was duly made should be entered into the record.
(e) Instructions to Potential Witnesses. The Chairman may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross-examination of witnesses so that the matter at issue may be heard and decided without undue delay. The Chairman should instruct all potential witnesses that:
(1) Any person may be represented by an attorney at law.
(2) Reasonable but not excessive time for testimony is to be given to each individual, generally limited to three to five minutes, unless extended by the Chairman.
(3) Witnesses are only to testify about specific and direct evidence and arguments in the form of reliable, probative, and substantial testimony, i.e. relevant facts; and not unsubstantiated opinions or mere concerns. Hearsay evidence should not be considered and should not be allowed in an arbitrary manner unless the testimony meets standards for trustworthiness and necessity.
(4) The applicant and other parties in interest are entitled to cross-examine witnesses.
(f) Call for Abstentions and Ex Parte Contacts.
(1) The Chairman should call for and recognize abstentions by any member of the Board or Commission in the event that there is a personal bias or conflict of interest. The member shall be responsible for explaining the validity of the nature of the conflict of interest.
(2) The Chairman should call for acknowledgment of any prior ex parte (off-the-record) communications by members of the Planning Commission.
(3) A member receiving the ex parte communication should summarize the nature of an oral communication on the record at the hearing so that its substance may be contested in public by other parties. Ex parte written materials received by members of the Planning Commission within ten (10) days of the administrative hearing should be acknowledged by providing copies to the Chairman for announcement at the hearing and to the Secretary of the Planning Commission so that copies can be distributed.
(4) Ex parte communications received by a member more than ten (10) days prior to the administrative hearing do not need to be acknowledged at the hearing when they have been made public by submission of a copy or a summary of the nature of an oral communication to the Secretary of the Planning Commission so that the communication could be timely placed in the applicant’s case file for public inspection and delivered to parties required to receive notice by mail.
(g) Oath of Witnesses. The Chairman should request that each person who presents testimony provide their identification and home or business address. Further, the Law Director or the Chairman should administer the oath to members of the administration of the City and to each member of the public giving testimony. The swearing of witnesses should only be conducted as a group where prior to receiving testimony, the Chairman requires a witness to indicate on the record that they were sworn.
(h) Staff Report and Summary. The Chairman may call upon Development Staff to deliver an assessment or evaluation of the anticipated consequences or impacts of the development proposed in the application.
(1) Members of the Board or Commission may ask any questions relevant to the case during this time.
(2) There should be no cross-examination of the City administration report on the application by proponents or opponents at this time.
(i) Recognition of Proponents. The Chairman should next call upon the proponents of the application or appeal to present their case. All public testimony should be directed to the Chairman.
(1) The Chairman should first call upon the applicant or appellant and offer the opportunity to make an opening statement and to present evidence in support of the application or appeal.
(2) The Chairman should then offer any persons who wish to present testimony or evidence supporting the request of the applicant the opportunity to testify. Such persons must confine their evidence or testimony to relevant facts on the question of whether the application or appeal meets the standards set forth in this Unified Development Ordinance for the granting of such application or appeal, or for the placement of lawful conditions upon the granting of the same.
(j) Recognition of Opponents. The Chairman should next offer any persons who wish to present testimony in opposition to the request of the applicant or appellant to testify. Such persons must confine their evidence or testimony to relevant facts on the question of whether the application or appeal meets the standards set forth in the Unified Development Ordinance for the granting of such application or appeal, or for the placement of lawful conditions upon the granting of the same. All public testimony should be directed to the Chairman.
(k) Cross-Examination of the Staff Report, Proponents and Opponents. Once all initial testimony has been presented to the Board or Commission, the Chairman should request or seek further testimony from members and those who have testified in the case. All questions and responses should be directed to the Chairman.
(1) The Chairman should first recognize members of the Board or Commission who have questions regarding the proponents’ presentation. Members should probe views of witnesses to separate fact from opinion and lay opinion from expert opinion.
(2) The Chairman may then call upon members of the City’s administration for any additional testimony or evidence pertaining to the testimony and evidence which has been presented at the hearing. Any member of the administration presenting additional testimony or evidence shall be subject to further questioning by members of the Board or Commission.
(l) Rebuttal and Cross-examination of Witnesses. The Chairman shall recognize proponents and then opponents who desire to submit rebuttal testimony or to cross-examine witnesses. All comments or questions shall be directed through the Chairman.
(m) Rebuttal and Closing Statement. The Chairman should next give the applicant or appellant the opportunity to present additional evidence and testimony pertaining to any new matters raised subsequent to the presentation of his or her case. The applicant or appellant should also be permitted to give a closing statement in support of the application, petition, or appeal.
(n) Continuance. If time does not permit adequate deliberation or if pertinent data needs to be obtained, the Chairman may recess the administrative hearing until a subsequent special or the next regular meeting to take additional testimony or until a final decision is made. No further published notice of a continued hearing need be made unless a period of six weeks or more elapses between the initial and continued hearing dates, although the date, time, and place of a continued hearing must be specified to those in attendance or to those who later contact the City.
(o) Closing the Hearing. When the Chairman has determined that no further discussion of the case on the floor is pending, public testimony on the case should be declared closed and the application or appeal shall be removed to the Board or Commission.
(p) Deliberation and Decision. At the conclusion of the administrative hearing, the Board or Commission should deliberate upon the application and choose to move to a vote or to continue the hearing to a later date due to additional follow-up or to draft the resolution. Once the Board or Commission chooses to move to a vote, the motion shall contain a determination of findings of fact and conclusions and may impose any reasonable conditions necessary to further the purposes or standards of the Unified Development Ordinance. The Chairman should call the vote at the close of discussion.