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r. n•a-y..'.t,,s:...,: c..•...�.....n.,, i.::: ram-.• ' r•i-1M1'w::.'.?.'.uat±.?-'rT'/l: ♦wr rs DidPeter Tritz How should the city conduct hearings on subdivision, and other lard use matters? In the recent case of S^-enson v. tunity for all relevant information t City of Bloomington, March -:i, 1988, come out. the Minnesota Supreme Court gave Cities should also be cautious about clues quite a bit of guidance as to how imposing any time limits on testimony, to conduct a zoning or subdivision and especially on testimony from a hearing. For a more complete summary permit applicant or witnesses heishe of this case, see the Court decisions wants to present. The city should limit column this month. testimony, only if it is dear that the Regardless of how good a city's testimony would be irrelevant or repet- hearing process is, the city's decision itive. is still open challenge, and may come The Court several times has com- under the district court review. If the pared city hearing procedures with the city has followed the guidelines the procedures spelled out in the state Supreme Court has now given, the administrative procedures art (APA). district court review will be a much It is not absolutely necessary for a city quicker, easier, and cheaper process to follow the APA procedures in pre - for the city. If the city's hearing pro- cise detzil. Nor does the city have to cess meets the Court's criteria, the use a hearing examiner; in the Swanson district court should normally look only case, the Bloomington council did not at the existing written record of the use a hearing examiner but instead city's hearing and decision; the district conducted the hearing itself. But, it is court will not conduct a fug trial with clear that the Court considers the APA both sides presenting witnesses, offer- procedures to be a good example of a ing testimony, and so on. fair hearing prccess, and it would be a There are really three elements the good idea for cities to model their own ftu city needs to be aware of ir. conducting procedures athose of the adminis- its hearing: First, the hearing must be trative procedures act. t fair. Second, there must be a clear and Using a hearing examiner might be h complete record of the entire process. appropriate in some circumstances. o Thud, it must be dear that the city's Proceedings for revoking a permit or decision was based on reasc. -ble con- clusions which carve from the evidence people presented at the hearing. We'll try to flesh out these three elements a bit more. Faimess Much of what a court will look for in determining whether a hearing was fair is just a matter of common sense. All parties should have an opportunity Present their views fully and to provide any information, materials, or exhibits they deem appropriate. They should have an Opportunity to question other witnesses, to respond to their testi. mony and to answer questions from others. To the extent possible, cities should bend over backward to give the parties every opportunity to prepare and present whatever they want, and to make sure that there is every oppor- zoning, n variance might be one such circum. stance. In revocation proceedings, using a hearing examiner might help avoid the problem of the court acting as both "prosecutor" and "judge." In any case, using a hearing examiner would seem to be one good way to help make sure that the hearing pro- cess is far and open. The Supreme Court decided the Swanson case unanimously. However, two justices joined in special concur. ring Opinion in which they suggested that procedures more bike the formal rules of evidence that the courts use might be appropriate. Clearly the Cow's r_al concern, though, is the basic issue of fairness and openness, rather than precise adherence to a specified set of procedures and rules. However, formal hearing rules hike the APA procedures or the courts' rules of evidence are set up specifically for the purpose of assuring a fair hearing, If a city has followed those rules (or Line. thing very similar), it will go a long way oward convincing the courts that the earing process was in fact fair and pen. PANNELL HERR FORSTER WOFcLDWIDE CERTWIED PUBLIC ACCOUNTANTS • FMANCULAUXTS • COMPLiANCEADDrrs • MUNCIAL CONSULTUM • MANAGENEhT ADVISORY SERVICES 612-545-0421 Serving Cities for over 30 Years" May 1988 31