5.01 Hearing Dockets
Each application properly filed with the required information and data, as provided in Article III of these Rules of Procedure, shall be numbered serially and hyphenated with the calendar year, docketed and placed on the calendar of the Board by the Director for a hearing within thirty (30) days of receipt or as reasonably soon as the essential information and data can be properly assembled, as determined by the Director. The docket shall be maintained by the Director, shall be numbered using the case number and the year (e.g., 01-17) and shall include the name and address of the applicant; the nature and type of request or appeal; the location of the premises at issue; the scheduled date of the hearing and any postponements or re-hearings; the date or dates on which notices are delivered, if by hand, or mailed; and any additional steps taken and the final disposition of the case. When an application is docketed and placed on the Board’s calendar, the Director shall cause all inspection reports, maps, exhibits and other necessary information and data to be properly assembled and prepared for the respective hearing.
(a) Notice of any hearing shall be given in accordance with the Zoning Ordinance, the Zoning Enabling Act and the Open Meetings Act, as applicable. The Board shall cause notice to a petitioner to be delivered personally or postmarked by U.S. mail not less than thirty (30) days prior to the date set for that petitioner’s hearing, to allow the petitioner to comply with the requirement in Section 61-3-12 of the Zoning Ordinance to post notice of the hearing on the property that is the subject of the hearing. The Board may, but is not required to, provide notice to a petitioner’s representative if notified of the representative’s name, address and relationship to the petitioner. The Board may honor a request to provide a petitioner’s representative with such
notice as a courtesy, however notice provided solely to a petitioner under this subsection shall be sufficient notice pursuant to applicable State law, the Zoning Ordinance and these Rules of Procedure.
(b) In addition to the notice requirement provided in subsection (a), above, the Board shall also cause notice to be provided to all persons to whom any real property within a minimum of 300 feet of the premises that is the subject of a hearing shall be assessed, and to the occupants of all structures within a minimum of 300 feet. Such notice shall be delivered personally or by U.S. mail, addressed to the respective owners and tenants as of the address given on the most recent assessment roll, not less than fifteen (15) days prior to the date scheduled for the hearing, unless a greater notice period is required by applicable law. If a tenant’s name is not known, the term “occupant” may be used. Community improvement associations registered with the Buildings, Safety, Environmental and Engineering Department and located within a minimum of 300 feet of the premises at issue shall be notified. Notice shall be given to the Planning and Development Department and, with respect to property located within or adjacent to an officially designated historic district, the Historic District Commission.
(c) Any notice of hearing shall indicate the time and place of the hearing, the property that is the subject of the hearing, the nature of the petition and the relief requested. A copy of each notice and a list of persons to whom the notice was mailed shall become a part of the record of the Board.
5.03 Authority to Issue Subpoenas
The Board may issue subpoenas to require the attendance and testimony of witnesses, to administer oaths or to compel the production of documents or other evidence that is pertinent to a matter before the Board. Upon failure of any witness to appear or party to produce documents or
other evidence, the Board may apply to the Circuit Court of Wayne County for an order compelling the attendance of said witnesses, the giving of testimony before the Board and the production of any said documents or other evidence, making refusal subject to such sanctions as the Court may deem it appropriate to impose.
(a) The procedural order of each hearing shall be as follows:
(i) Calling of the case by the Chairperson.
(ii) Reports of Director and staff.
(iii) Petitioner’s presentation.
(iv) For appeals by petitioner other than subject property owner or tenant (i.e.,
“community appeals”) only: Presentation by property owner or representative.
(v) Reports, if applicable, of City Departments.
(vi) Board questions to petitioner.
(vii) Public comment (statements in support of petition followed by those
(ix) For community appeals only: rebuttal and final remarks of property owner
(x) Rebuttal and final remarks of petitioner.
(xi) Closing of hearing, followed by Board application of applicable Approval Criteria (as defined in Article VI), discussion, motion and decision, in accordance with Article VI herein.
(b) As provided in Section 61-2-46 of the Zoning Ordinance, at any hearing, any interested party may appear in person or by agent or attorney and offer evidence, including testimony. Testimony shall be given under oath or affirmation, and all evidence, including testimony, shall be presented publicly. A petitioner may present such witnesses as deemed necessary, and the petitioner and any such witnesses shall be given a reasonable time to present the petitioner’s case. The Board may take judicial notice of facts to the same extent and in the
same manner as courts of record and may consider any relevant facts with the personal knowledge of any member of the Board which are stated into the record by such member.
(c) Any applicant may, with the consent of the Board, withdraw his or her application at any time prior to the final action thereon, except that if a motion on such application has been made and is pending, such motion shall have precedence.
The Board may act to take a case under advisement for one or both of the following reasons:
(a) Any Board member is absent for a hearing.
(b) The Board determines that additional information is needed, that cannot be reasonably obtained during the time then currently set for the hearing, in order to make its decision.
(c) The Board may take a case under advisement by majority vote of the members then present. A case taken under advisement under this Section shall be taken under advisement until a date certain, as determined by the Board, and any Board member shall be permitted prior to the new hearing date to review the record, including an audio tape or other recording, of the hearing at which the case was taken under advisement. A motion to take a case under advisement for the purpose of obtaining additional information, under subsection (b), shall include a statement of the reasons and the additional information needed for the Board to make a decision.
(d) When a case that has been placed under advisement comes before the Board for a vote, the case is not opened anew; rather, the Board shall first hear any additional information requested, if any was requested; shall allow public comment, whether by the petitioner or other members of the public; and shall then proceed to discussion, motion and full Board vote on the matter. In the event that a motion was made on the case prior to deciding to take the case under advisement, a new motion shall be made and a new vote taken.
5.06 Requests for Adjournments
(a) Requests for adjournment may be granted or denied at the discretion of the Board. Prior to the public hearing on a matter, the petitioner may request an adjournment of the case. A request for adjournment shall be made by the petitioner and shall comply with the following:
(i) The request shall be made in writing, signed by the petitioner or the petitioner’s authorized agent, and provided to the Board not later than the Friday prior to the date set for the hearing. The request for adjournment shall include a statement of the reasons for the request, including an explanation of why the petitioner is not prepared for the case to be heard by the Board on the originally scheduled hearing date.
(ii) In addition to, but not in place of, the written request required under subsection (i), the petitioner or the petitioner’s authorized agent may be present at the time set for the hearing and request the adjournment in person or further explain the basis for the request; provided that, whether or not the petitioner or an authorized agent is not present upon the calling of the case, the Board may deny the request for adjournment, hold the hearing and make a decision on the case at such time, in accordance with subsection (b) herein.
(b) A reasonable request for adjournment may be granted only after the case has been called, pursuant to Section 5.04(a)(i) herein, and upon a majority vote of the Board members then present. The Board shall act on any request for adjournment as it does for case decisions, pursuant to the procedures for decisions in Article VI herein, except that any action on a request for adjournment is not required to include a statement of the Zoning Ordinance Approval Criteria (as defined in Section 6.01), and the findings of fact related to such Approval Criteria, on which such action is being taken. If the request is approved, the Board shall specify the date certain until
which the case will be adjourned or direct the Director to determine such date following the hearing. The record shall reflect (i) the basis for the request for adjournment, (ii) the Board’s decision with respect to the request for adjournment and (iii) if approved or approved with conditions, the date until which the case will be adjourned or a statement that the Director shall determine such date following the hearing.
5.07 Requests for Re-hearings
An application for re-hearing shall be made in writing and shall state the reasons for the re-hearing request. No application to the Board which has been denied wholly or in part shall be resubmitted for a period of one (1) year from the effective date of said order of denial, except on the grounds of new evidence or proof of a change of conditions found to be valid by the Board or upon remand from a court.
Adopted December 19, 2017