Case Law Update – “What Ifs” Are Not Evidence

 

            A recent unpublished Court of Appeals opinion – which I think should have been published – illustrates a common evidentiary issue in quasi-judicial proceedings and discusses a not-so-common procedural issue related to appeals from local zoning boards.  It’s the latter, procedural issue for which publication might have been merited.     

            Sidebar: Court of Appeals opinions are either “published” or “unpublished,” although both are publicly issued on the court’s website.  If a case is legally insignificant, advances no law, or if the court, for any number of reasons, wants to limit its holding to the case’s unique facts, it will not “publish” the opinion.  As such, the opinion decides the case but does not become “controlling legal authority.” End Sidebar.

 The Facts

             In Livingston v. Robeson County, Mr. Livingston sought a conditional use permit to develop a “Level IV Group Home” that was “designed to serve a consumer base for the female mentally ill and mentally retarded populations” to provide education, job training, counseling and substance abuse programs.

 

            Three things happened at the Board of Commissioners hearing. One, Mr. Livingston presented substantial evidence that he met the conditional use permit standards.  Two, neighbors presented opinions as to why he should not receive the permit.  And three, the Board sided with opinion testimony rather than evidence and denied the permit.

            A fourth thing happened on appeal.  Mr. Livingston argued that his use was allowed by right and that he didn’t need a conditional use permit at all.

The Decision

            The Court of Appeals correctly refused to hear and decide whether this particular type of group home was allowed in this particular zoning district under this particular county’s table of permitted uses. 

             Appeals in the nature of certiorari are limited to errors that occurred before the board, and the question whether this use was allowed by right was not raised.  Even so, N.C.G.S. 153A-345 provides for initial appeal to the Board of Adjustment if you believe the county zoning administrator incorrectly interprets the zoning ordinance and is wrongfully requiring you to proceed with a conditional use hearing. No such appeal was taken.  Appeal on this issue was properly denied.

 “What Ifs” Are Not Evidence

             Veterans of rezoning public hearings will know what I am talking about here.

             People, in general, are fearful of change.  People, in general, are distrustful of and unsettled by “otherness.”  And when notifications went into the neighborhood that Mr. Livingston wanted a home not for mom, dad, 2 children, a dog and a white picket fence but rather for girls who are “mentally ill,” “mentally retarded,” and who might have drug dependencies, all the neighbors, in general, became fearful, unsettled and distrustful (not to mention angry and emotionally overwrought).

             Veterans of public hearings will also know what I am talking about when neighbors came in raising all sorts of hypothetical, speculative, far flung and fanciful scenarios under the rubric “what if?”  Neighbor Chicken Little obviously feared the sky was falling, and she wanted her government to act on her fears.

             Ms. Cox raised a general fear: what if one of them “escaped?”  Mr. Lee noted that “we’ve got 29 widows in our area” (presumably gleaned from the index of local widows), suggesting “what if” a girl escaped and harmed one of them.  Ms. Freeman noted that “we all have fear” and recounted that a few months ago a 16-year-old killed somebody at a dumpster.  What if they can’t control them she asked. And another person told the tale of how an unnamed officer at an unnamed prison was killed by an unnamed ten-year-old who just wanted to leave, and who then escaped even though there was a twenty foot fence. What if . . . ?

             But there is a problem here.

             Quasi-judicial decisions are based upon evidence, not opinions.  That evidence must be competent (eligible to be heard), material (relevant to the issue) and substantial (sufficient for a reasonable person to use as a basis for his or her decision). “Speculative assertions or mere expressions of opinion about the possible effects of granting a permit are insufficient to support the findings of a quasi-judicial body.”  Also, the expression of “generalized fears” does not constitute a competent basis for denying a permit.

             There are many reasons why opinion evidence can trump evidence at the board level.  Some boards are poorly trained.  Other boards are well trained but don’t care.  This is their county and they decide who leaves the hearing room happy and who leaves unhappy.  And other times the board’s attorney sits silently when he or she has a duty to intervene. 

             The court remanded the issue to Robeson County with an order that it issue Mr. Livingston his conditional use permit.

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