Whether you are a fan of John Wayne, Clint Eastwood or, to a much lesser extent, Will Smith, you are familiar with the Wild (Wild) West. During my first year as an associate, the members of our Land Use Group described land use hearings, such as a hearing for a conditional use or a variance, as the Wild West as compared to proceedings in a courtroom. They were not wrong; although, that is not to say land use hearings operate without procedural rules.
This is the third post in what has turned into a four-part series on land use hearings. The first two posts explained the beginning and ending of hearings, including the public notice requirements and deadlines under the Pennsylvania Municipalities Planning Code (“MPC”) for conducting a hearing and reaching a decision. This post and the next will cover the hearing itself.
Section 908(3) of the MPC describes the “parties to the hearing” as the “the municipality, any person affected by the application who has made timely appearance of record before the board, and any person including civic or community organizations permitted to appear by the board.” Defining who or what each of those “parties” are could be an entire post in itself. For now, it is important to understand (1) “person” includes businesses and other entities and (2) if a person becomes a party to the hearing, they have the right to present evidence and arguments, cross-examine witnesses on relevant issues, and appeal an unfavorable decision by the board. Accordingly, applicants must object to a person’s standing to the extent such an objection is warranted. A common objection to standing is based on the distance from the person’s property to the property at issue before the board. (More on standing can be found here.) Others in the audience who are not a party to the hearing merely are permitted to comment on the application. To avoid headaches throughout the hearing or on appeal, it is a best practice to list the parties to the hearing in the record, whether orally or on a written form, so there are no questions.
Although many of the formal procedures of a courtroom do not apply to land use hearings, some do. For example, Section 908(4) of the MPC authorizes the individual presiding over the hearing to administer oaths and issue subpoenas. While a subpoena is not the preferred way to call a witness, it can ensure that all relevant witnesses are present. Section 908(8) of the MPC brings other trial concepts to zoning hearings. For example, it prohibits ex parte communication, meaning board members are prohibited from communicating, directly or indirectly, with any party or their representatives. Similarly, once a hearing has commenced, board members are prohibited from inspecting the site or its surroundings with any party unless all parties are given the opportunity to be present. Finally, the board cannot take notice of any evidence, including municipal reports or staff memoranda, “unless the parties are afforded an opportunity to contest the material so noticed.” So, while there are no witness lists and public participation is permitted – if not encouraged – there are rules that must be followed. We will discuss other hearing matters, such as objections for relevance and hearsay, in another post.
Until next time: “I know those law books mean a lot to you, but not out here. Out here a man settles his own problems.” – John Wayne