We’re doing these things wrong here in Ramseur, and I’m about to show you how, but first, we need to make sure we all understand what a quasi-judicial decision is.
Quasi-judicial decisions involve the application of ordinance policies to individual situations. Examples include variances, special- and conditional-use permits (even if issued by the governing board), appeals, and interpretations. These decisions involve two key elements—the finding of facts regarding the specific proposal and the exercise of judgment and discretion in applying predetermined policies to the situation. Since quasi-judicial decisions do not involve setting new policies, the broad public notice requirements that exist for legislative decisions do not apply. However, the courts have imposed fairly strict procedural requirements on these decisions in order to protect the legal rights of the parties involved. Quasi-judicial decisions are most often assigned to boards of adjustment, appointed by the governing board.
The critical part to remember is that quasi-judicial decisions are legal decisions that can wind up being examined and either upheld or overturned in a district or superior court, and things have gotten ugly and expensive either way if we find ourselves in court.
The governing body of the Town of Ramseur is the board of commissioners. By statute, the board of commissioners is empowered to appoint a number of subordinate boards; among them are the planning board and one called the board of adjustment.
Eight years ago or so those two boards were made up of the same members, but one day a question came along that required a quasi-judicial hearing from the board of adjustment, and along the way to the hearing someone realized there was a problem.
It turns out that there was a clause buried in statutes that said the planning board could offer a preliminary forum for review of quasi-judicial decisions, which they had already apparently done, provided that no part of the forum or its recommendation be used as a basis for the deciding board. That complicated things.
The statute has since been updated with similar, if not identical language, and incorporated into 160D – 301, as we will see below.
So the planning board went to the board of commissioners and said, “Hey, we’re not allowed to do this.”
Well, the board of commissioners had to get that decision decided, because money was involved and time is money, and since so few people in Ramseur have time or enough interest in managing an enterprise as complicated as a small town for a couple of hundred bucks a month or less, the commissioners quickly appointed themselves to be the board of adjustment.
Problem solved! Not so fast.
That solution worked because none of the commissioners had any conflicts of interest in the question being decided that day, and it’s worked a few more times since then, but it won’t work forever because some decisions a board of adjustment makes must be decided by a four-fifths (4/5) majority, and there’s also a statutory mandate for staggered three-year terms for board of adjustment members.
The other day when I was researching ETJ, I found a couple of sections in chapter 160D that apply specifically to planning boards and boards of adjustment, how they are to be composed, and what the function of an alternate should be.
The alternates our commissioners are constantly trying to recruit are supposed to be alternate members of the board of adjustment. They are not supposed to sit on the planning board, nor vote on planning board decisions.
See for yourself. The relevant sections of the statutes are copied below. Again, as with the last post, all bolding and CAPITALIZATION other than section headings are mine. Headings are linked to the source.
(a) Composition. – A local government may by ordinance provide for the appointment and compensation of a planning board or may designate one or more boards or commissions to perform the duties of a planning board. A planning board established pursuant to this section may include, but shall not be limited to, one or more of the following:
(1) A planning board of any size or composition deemed appropriate, organized in any manner deemed appropriate; provided, however, the board shall have at least three members.
(2) A joint planning board created by two or more local governments pursuant to Part 1 of Article 20 of Chapter 160A of the General Statutes. *This part doesn’t apply to us.
(b) Duties. – A planning board MAY be assigned the following powers and duties:
(1) To prepare, review, maintain, monitor, and periodically update and recommend to the governing board a comprehensive plan, and such other plans as deemed appropriate, and conduct ongoing related research, data collection, mapping, and analysis.
(2) To facilitate and coordinate citizen engagement and participation in the planning process.
(3) To develop and recommend policies, ordinances, development regulations, administrative procedures, and other means for carrying out plans in a coordinated and efficient manner.
(4) To advise the governing board concerning the implementation of plans, including, but not limited to, review and comment on all zoning text and map amendments as required by G.S. 160D-604.
(5) To exercise any functions in the administration and enforcement of various means for carrying out plans that the governing board may direct.
(6) To provide a preliminary forum for review of quasi-judicial decisions, provided that no part of the forum or recommendation may be used as a basis for the deciding board.
(7) To perform any other related duties that the governing board may direct. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
Pay attention to sub-section (6) above. One of the statutory duties of a planning board is to “provide a preliminary forum for review of quasi-judicial decisions, provided that no part of the forum or recommendation may be used for a basis for the deciding board.”
Who or what is the deciding board? The board of adjustment!
- 160D-302. Boards of adjustment.
(a) Composition. – A local government may by ordinance provide for the appointment and compensation of a board of adjustment consisting of five or more members, each to be appointed for three-year terms. In appointing the original members or in the filling of vacancies caused by the expiration of the terms of existing members, the governing board may appoint certain members for less than three years so that the terms of all members shall not expire at the same time. The governing board may appoint and provide compensation for alternate members to serve on the board in the absence or temporary disqualification of any regular member or to fill a vacancy pending appointment of a member. Alternate members shall be appointed for the same term, at the same time, and in the same manner as regular members. Each alternate member serving on behalf of any regular member has all the powers and duties of a regular member.
(b) Duties. – The board shall hear and decide all matters upon which it is required to pass under any statute or development regulation adopted under this Chapter. The ordinance may designate a planning board or governing board to perform any of the duties of a board of adjustment in addition to its other duties and may create and designate specialized boards to hear technical appeals. If any board other than the board of adjustment is assigned decision-making authority for any quasi-judicial matter, that board shall comply with all of the procedures and the process applicable to a board of adjustment in making quasi-judicial decisions. (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, s. 51(a), (b), (d).)
The board of adjustment can be the planning board, but the planning board can’t review or make recommendations in quasi-judicial decisions to be decided by the board of adjustment.
Either way, the alternates our commissioners are always searching for belong to the board of adjustment, not the planning board. There should not be alternate members on our planning board any more than there should be alternate members of the board of commissioners allowed to sit, discuss, and vote on issues before that board when a commissioner can’t attend meetings. Can you imagine the butt-hurt such a suggestion would cause?
We’ve been doing this, and a lot of other business, wrong in Ramseur for a very long time. I had hoped, almost four years ago, that the new board we elected in 2019 would be smarter than the old board members they replaced, and I don’t think I’m the only one disappointed today.
Statutes dictate three-year staggered terms for the board of adjustment members, and since our commissioners serve four-year terms, that solution doesn’t immediately meet the state’s mandate. A five-member board of adjustment, separate from the planning board, needs to be recruited and properly empaneled soon.
Our planning board should remain a five-person board, assuming there are five people living in Ramseur who are interested enough in that work to show up consistently and get it done; if not then maybe that board should be reduced to only three members.
Until such time as ETJ is adopted by Ramseur, no members of any board or commission should reside outside the municipal boundaries of the Town of Ramseur. If ETJ is adopted, any new members of the planning board should be in addition to the resident members, and those appointments must follow the procedures laid out in chapter 160D-307.
Regular and alternate members of a board of adjustment should be recruited with the understanding that those duties are only required on an as-needed basis. One or two sitting commissioners could do double duty as board of adjustment members, provided the state’s mandatory staggered three-year terms are observed. Former commissioners, former mayors, or perhaps members of the ABC board could also be persuaded to serve in those capacities if no other qualified candidates step forward.
It would be smart to have a list of qualified, willing alternates available should a member of the board of adjustment need to recuse him or herself from a decision. They could be vetted for conflicts of interest on a case-by-case basis, sworn in as needed, sit through a hearing, help render a decision, and get on with their lives.