Chapter 24 The Right to a Fair Hearing

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 24 The Right to a Fair Hearing

As a general rule, the objective of conducting a hearing is to ensure that all interested parties have an opportunity to be fully and fairly heard. Judicial attention is focused on whether the statutory requirements have been satisfied and whether the hearing was basically fair. Jurisdictions differ on what is required for adequate notice. Some allow for notice by publication,¹ while others find it inadequate.² Strict rules of evidence are not typically imposed on hearings before zoning boards. Whether certain evidence should be received is, in general, a matter left to the discretion of the board. However, this discretion of the board should be exercised in a permissive rather than in a restrictive fashion, and, wherever possible, evidence should be admitted. The decision of the board must be based on findings supported by the evidence adduced at the hearing.

The guiding rule for the board should be that everyone present should have a full opportunity to be heard. Where such is the case and where the basic statutory requirements are complied with, it is unlikely that a board's decision will be reversed for procedural reasons.

A party appearing before a plan commission or a zoning board is entitled to a fair hearing. This includes the right to appear and give evidence as well as the right to examine witnesses of the opposing party. In E&E Haulings, Inc., the court pointed out that the attorney for the opposing party did not have to be sworn as a witness in order to make statements or to cross-examine.³ This case held, for the first time in Illinois, that an attorney at a hearing before a zoning board has a right to cross-examination.⁴ The court, in so holding, quoted the following language from the case of Wadell v. Board of Zoning Appeals.⁵

[A zoning board] often deals with important property interests; and a denial of a right to cross-examine may easily lead to the acceptance of testimony at its face value when its lack of credibility or the necessity for accepting it only with qualifications can be shown by cross-examination. We quote from Interstate Commerce Commission v. Louisville & Nashville R.R. Co.,⁶ "The Commission is an administrative body, and, even where it acts in a quasi-judicial capacity, is not limited by the strict rules, as to the admissibility of evidence, which prevail in suits between private parties . . . But the more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essentials of evidence by which rights are asserted or defended. In such cases, the Commissioners cannot act upon their own information, as could jurors in primitive days. All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal."⁷

The Illinois Supreme Court in People ex rel. Klaeren v. Village of Lisle⁸ recognized that, at the very least, a hearing on an application for a special use is to be viewed as administrative and not legislative, even if the village board or city council makes the final decision. This means that it is to be treated as quasi-judicial and that those persons having a right to appear and participate have the right to examine and cross-examine witnesses. In reaching this conclusion, the court considered several important issues and tried to provide guidelines for those who must administer the zoning process.

A. Who Has the Right to Appear?

One of the first questions to be resolved was who has the right to appear and cross-examine witnesses at a zoning hearing? Most municipal officials are familiar with the situation where a controversial zoning matter has brought a full house of residents to the hearing. The Illinois Supreme Court in Klaeren provided the following guidelines:

The Court in Yusuf held that a diminution in value and a loss in the quiet enjoyment of one's property caused by additional traffic and noise created by a proposed special use were adequate to confer standing on adjoining property owners. The appellate majority in this case likewise held that any increase in noise, traffic or light pollution created by the development would affect the use and enjoyment of plaintiffs' properties in a manner distinct in both quantity and quality from any injury suffered by the public as a whole. We agree with this conclusion.⁹

It is clear that anyone who is required to receive notice by service, such as property owners within 250 feet of the subject property, has the right to appear. In addition, property owners located even further away might still claim that they would suffer some distinct problem related to noise, traffic, or light pollution different from that suffered by the public in general. For example, the lights from a canopy of a new gasoline service station might shine in the windows of a home located more than...