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Page Three THE ZONING REPORT impartial authority; after the hearing, written findings summarizing the facts of the case pro- riding conclusions supporting the decision of the authority; provision of the findings to each party involved in the hearing; and notice to each party of how appeals can be taken. Quasi-judicial procedure requires that: all persons or their representatives or agents may present testimony and provide exhibits and evi- dence in the case; a structured format to the presentation of testimony, generally in order, by the applicant, proponents, objectors and staff; cross-examination of all persons testify- ing and stBff; rebuttal of new testimony; intro- duction of written statements and exhibits; oath or affirmation to be administered by the examiner to all participants; points of order to be ruled on by the examiner in conducting the hearing; and a verbatim transcript of the hear- ing. The hearing is not a court trial although qua- si-judicial procedure generally might follow the state's rules of administrative procedure, lnd~- ~'iduals can testify themselves and need not be represented by legal counsel; indeed many hearing bodies encourage persona] testimony. Persons are allowed to introduce hearsay (pos- aible information that is unsupported or un- proven) which the examiner is obligated to hear and weigh in reaching a decision. Pro¥ide an appeals process that also fotlows due process and quasi-judicial procedure. The appeals process does not rehear the case, it ordy reviews aspects of the case heard and decided by the examiner alleged to be in error. 5~ost appeals are heard by the elected board. Due process for appeals provides notice to persons participating in the examiner's hearing on rules and procedures of appeals; requires that appeals must be filed in writing with a specific officer within a maximum number of days after the hearing examiner has decided the case; schedules appeals within a maximum time after being filed; provides advance notice of this review date; follows rules of conduct in the review of the appeal; and describes how further appeals are filed in the courts. (~uasi-judicia] procedure requires that the appea} can only be filed for errors allegedly made by the hearing examiner in the conduct of the hearing, in due process in the case or in the written findings in reaching the case decision. Only a party involved in the hearing before the examiner or submitting exhibits can submit an appeal. The appeals body cannot re-hear the case, it can only review the petition of the appellant of alleged errors. Most codes ailow the elected board as the appeals body to vote to rehear the case (a "de novo" hearing), The appeals body can affirm, reverse or modify the decision of the examiner or send the case back to the examiner (remand it) with instructions for reconsideration. If new evidence is offered that could not reasonably have been known or presented until after the examiner's hearing, the appeals body must vote whether to hear it or remand the case to the examiner to hear the new evidence and reconsider the conclusions and decision. If the appeals body or elected board votes to rehear the case, the new hearing must also be conducted as a quasi-judicial proceeding, which closely follows the examiner's rules of hearing conduct. .~Thi~ can be difficult for the elected board, which as a political body, is put in an unfamiliar role as judges and not as legislators. It opens the case to litigation since legislative bodies, by experience, have difficulty conduct- ing error-free quasi-judicial hearings and en- tering written findings and conclusions support- ing their decisions. If the elected board reverses too many deci- sions of the examiner, it might face his resig- nation. For reversals that are litigated, courts apparently are prone to re-reverse back to hearing examiner decisions. The hearing exam- iner process tends to fit the quasi-judicial guidelines more closely than most legislative bodies put in a similar role. If .the hearing examiner recommends decisions to the elected board rather than make the fi- nal decision in zoning cases, the elected board makes the final decision from the written find- ings and conclusions of the hearing examiner. No new pubhc hearing is held unless new evi- January 7, 1994 Issue