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City attorney breaks down public hearing procedures

SALISBURY — City Attorney Graham Corriher walked the Salisbury Planning Board through quasi-judicial procedure at its meeting Tuesday.

The procedure is used for cases that require a public hearing, common at Planning Board, Historic Preservation Commission and City Council meetings. Corriher said he is willing to host a training session for the commission and council, as well.

A quasi-judicial procedure is similar to a court proceeding, Corriher explained.

The training was intended to show board members how a public hearing should proceed and how to address common problems, including determining what is evidence and who is an expert.

Planning boards statewide follow quasi-judicial procedure when they consider special-use and conditional-use permits. The decision making requires sworn testimony, unbiased board members and detailed records.

Corriher spoke of the board’s role in deciding planning cases and gave examples of common problems members face.

One issue is expert testimony. Being considered an expert is based on education, experience and how the expertise applies to the particular case.

“They could be the smartest person in the world at this particular subject matter, but they’ve never applied what they know to this fact scenario,” Corriher said. “Well, you’re an expert on property values but have you looked at the property values in Salisbury? Have you compared neighboring streets?”

Corriher said the definition of expertise trips up a lot of people and suggested that the board ask experts what makes them one before hearing their testimony.

Chairman Bill Wagoner asked how the staff ensures that an applicant brings an expert who is knowledgable about the issue at hand.

“We do go over the application process and try to help them understand the difference between evidentiary testimony and their wishes and wants,” Zoning Administrator Teresa Baringer said.

Standards should be applied to evidence. For example, on variance requests, “Given the facts, is there an unnecessary hardship?” or with special-use permits, “Given the facts, will the proposed use substantially injure property values?”

Another key to a quasi-judicial procedure is being an impartial decision maker and considering whether board members have a bias, a conflict of interest, a close relationship with the applicant or a financial interest, Corriher said. Ex parte communications, which means communicating outside the hearing, are another factor. Corriher said board members should recuse themselves if they are biased or have a conflict of interest. Ex parte communications should be disclosed but do not necessarily require recusal, he said.

He said sometimes it’s impossible to avoid hearing about a case ahead of the meeting, but he says board members should try to remove themselves from such conversations.

Board member P.J. Ricks asked about receiving emails about a case. Corriher recommended forwarding them to the planning staff.

Corriher also made a distinction between parties and witnesses. A party is someone with a legal interest, the applicant or a person who will suffer damages. A witness is someone who has evidence to offer.

“This special-use permit should not be granted because x, y and z,” Corriher said. “It can be, ‘Well, this same use was granted beside my house across town and these are the problems that it created. There was noise. There was dust. There was pollution. There were people there at all hours of the night.’ Those things that a person actually sees.”

The board should not consider a person’s opinion and should be able to differentiate between fact from opinion, he said.

“‘I don’t like this idea’ is not evidence,” Corriher said. “‘You shouldn’t do this’ is not evidence. Those things are not evidence. Those things will come out during a hearing. It’s hard to stop them, but the board needs to decide what is evidence and what is opinion.”

Corriher said the board chairman can stop someone from sharing an opinion.

Ricks asked about applicants who are unable to answer the board’s questions.

“A lot of times, they’re not represented by an attorney or anyone,” Corriher said. “This is their one project and they’re doing the best they can, and they don’t exactly know what evidence they need to bring in. It would be perfectly fine for the board to solicit that information.”

He to said a public hearing is not to play “gotcha” but to make sure applicants have all the appropriate evidence.

“Good. We see ourselves as the helping board,” Ricks said.

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