If you have ever watched a live trial or law-related television show, you probably know a few general things about court proceedings: a judge presides over a case and the rules of evidence (Objection, your honor!) govern what parties can and cannot say and do. While there are similarities in how court proceedings and land use hearings operate, key distinctions exist. First, there is no separate judge and jury. The governing body or the zoning hearing board (collectively, the “Board”) does both. In addition, land use hearings, while structured, are designed to give the Board freedom in its decision process. This includes the Board’s power to appoint a hearing officer, relaxed rules of evidence (including the hearsay rule), and the opportunity for parties to present arguments and evidence and to conduct cross-examination. Those are the topics in this post, the final of our four-part series on land use hearing (Post I, Post II and Post III).
Section 908(2) of the Pennsylvania Municipalities Planning Code (“MPC”) requires the Board to make all decisions regarding a hearing. However, the Board may appoint an attorney or any Board member to serve as a hearing officer throughout the proceeding. If desired, the parties can waive the right to a hearing and accept the hearing officer’s findings as final. If a hearing is held, Section 908(7) of the MPC requires a stenographer to keep a record of the hearing. The appearance fee for the stenographer is shared equally by the applicant and the Board, but each party must pay for their own copy of the transcript.
Section 908(5) of the MPC gives parties the right to be represented by counsel, to present arguments and evidence, and to cross-examine adverse witnesses on all relevant issues. In some instances, the right to cross-examination is complicated due to the permissibility of hearsay evidence. There are law school classes dedicated to understanding what constitutes hearsay but, generally, hearsay is an out of court assertion that is offered for the truth of the matter asserted. Under the hearsay rule, testimony such as “well, my friend told me…” is generally inadmissible in court (subject to certain exceptions). Hearsay is not expressly prohibited in land use hearings.
Per Section 908(6) of the MPC, land use hearings are not governed by the rules of evidence. Only evidence that is irrelevant, immaterial, or unduly repetitious may be excluded from a land use hearing. Although this flexibility allows residents to voice their thoughts and concerns regarding a land use issue, it can create problems for parties that want to conduct cross-examination. An example of this issue arose in a Commonwealth Court case. In Town & Country Mgmt. Corp. v. Zoning Hearing Bd., 671 A.2d 790 (Pa. Commw. Ct. 1996), the Board was permitted to rely on expert witness’ testimony that used facts from a third-party traffic study to prove an acceptable use (i.e. hearsay). The objecting residents argued that they were deprived of their right to cross examine the preparer of the traffic study. The Court rejected this argument because the report was not admitted into evidence. The Court concluded that, even if the report was admitted into evidence, the Board was not bound by the rule of hearsay and was, therefore, able to rely on the findings contained within the report.
Balancing a party’s right to cross-examination with the permissibility of hearsay evidence has created an interesting issue for Boards hearing land use cases. Because of the flexible evidentiary rules in land use hearings, individual Boards have more discretion to decide what evidence is admitted and when cross-examination can be conducted.
Please contact any member of the McNees Wallace & Nurick Land Use Group with questions regarding this post or for assistance with any land use issues.