Dellinger v. Lincoln County, 2019 WL 3115211 (N.C. Ct. App. July 16, 2019) is an interesting conditional use permit case which involved a final hearing by the local legislative body. The difficulty was that one of the members of the local legislative body evidently came into the hearing with preconceived ideas about the benefits of the permit. North Carolina has a statute one point:
A member of any board exercising quasi-judicial functions ... 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 violations of due process 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.
N.C. Gen. Stat. § 160A-388(e)(2) (2017).
Governing bodies sitting in a quasi-judicial capacity are performing as judges and must be neutral, impartial, and base their decisions solely upon the evidence submitted.In quasi-judicial proceedings, no board or council member should appear to be an advocate for nor adopt an adversarial position to a party, bring in extraneous or incompetent evidence, or rely upon ex parte communications when making their decision. PHG Asheville, LLC v. City of Asheville, 822 S.E.2d 79, 85 (2018). Board members acting in a quasi-judicial capacity are held to a high standard: “[n]eutrality and the appearance of neutrality are equally critical in maintaining the integrity of our judicial and quasi-judicial processes.”
Dellinger v. Lincoln Cty., No. COA18-1080, 2019 WL 3115211, at *3 (N.C. Ct. App. July 16, 2019).
A party who asserts a board member is biased against them may move for recusal. The burden is on the moving party to prove that, objectively, the grounds for disqualification exist.
There is a “presumption of honesty and integrity in those serving as adjudicators on a quasi-judicial tribunal,” but that presumption does not preclude a showing of demonstrated bias, mandating recusal.
Bias has been defined as a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias can refer to preconceptions about facts, policy or law; a person, group or object; or a personal interest in the outcome of some determination. However, in order to prove bias, it must be shown that the decision-maker has made some sort of commitment, due to bias, to decide the case in a particular way.
During the initial application several years back and the later appeal, perhaps as recently as two years ago I assisted in opposing the solar farm. I contributed financially. I expressed my opinion to others and had discussions with both those in favor and those opposed to the matter. All of these actions took place while I was a private citizen.
Petitioners clearly demonstrated Permenter’s bias based upon his actively opposing this specific conditional use application and appeal in the past, committing money to the cause of preventing them from obtaining the conditional use permit, and openly communicating his opposition to others. Permenter’s bias is not based upon his general discussion of or attitude toward solar farms or conditional use permits, but his position, contributions, and activities involving the grant or denial of this conditional use permit for Petitioner’s proposed solar farm. Permenter’s activities and positions proved he had a “commitment” to “decide the case in a particular way” or had a “financial interest in the outcome of the matter,” mandating recusal.
During the 5 June 2017 Board meeting and while sitting on the Board hearing the matter, Permenter advocated and presented ten pages worth of his “condensed evidence” in an attempt to rebut Petitioners’ prima facie case. This submission was made after another commissioner had already made a motion to deny the conditional use permit and had read the proposed order on the record. The “condensed evidence” advocated and presented by Permenter was biased, one-sided, and incomplete
As a result, the Court of Appeals reversed the decision of the lower court and ordered the issuance of the conditional use permit.
In most areas in Tennessee, conditional use permits are heard only by the Board of Zoning appeals. As a result, there is generally little chance of this same kind of overreaching by legislative bodies in the context of a conditional use permit. However, many zoning regulations provide for at least some hearing on a planned unit development before the local legislative body. These hearings are generally considered to be administrative in nature, similar to the conditional use permit application in this North Carolina case. As a result, the types of conduct outlined above which do not conform to due process requirements, can occur in Tennessee in the context of a planned unit development.
It is important to recognize that in an administrative proceeding such as a planned unit development members of the local legislative body are acting as judges, not legislators. Those members must be much more circumspect in their actions and words.
When dealing with a legislative matter, a preconceived idea about the impact of a particular zoning issue is not disqualifying. Many times, legislators are elected for their particular position on important issues. But in the context of a planned unit development, such preconceived biases are illegal and unconstitutional. The members of a local legislative body must understand the difference.