American counties and towns are peppered with an unusual governmental creature called the “Board of Adjustment.” BOA functions may vary state to state, but they are the focal point for some of the most far-reaching land use decisions made by local governments.
In North Carolina, Boards of Adjustment can issue subpoenas much the same as lawyers can issue subpoenas within the General Court of Justice (the trial courts). Subpoenas are a necessary power because BOA’s function as quasi-courts.
But there are no statutes or rules that tell Boards how they can issue subpoenas and no cases that have interpreted the BOA statutes that grant this authority. More importantly, it’s not the board but the parties who need this power because it’s the parties who have the burden of proof and the burden of producing evidence.
To my knowledge, there have been no scholarly (or unscholarly) articles written about the Board of Adjustment subpoena in North Carolina, but I’m ready for somebody to show me one.
Two weeks ago I published what I think is the first article on this topic in Land Use Law Quarterly, using that forum to challenge the enabling statutes and to ask for needed clarifications. Attached is a suggested form if you need to issue or request the issuance of a subpoena.
Enjoy my Land Use Law Quarterly article article below:
The Board of Adjustment Subpoena – Calling for a Statutory Rewrite
Overview
American jurisprudence is an adversarial system in which one party has a burden of proof. Along with the burden of proof comes commensurate power in the hands of the parties to compel the production of evidence. Without this power the burden is meaningless.
As officers of the court, attorneys are authorized by statute to subpoena witnesses to attend depositions and hearings and to require document production relevant to the controversy. As hearings proceed, attorneys – not judges – control the fact finding process, and the judge’s role is to act as arbiter of evidentiary disputes.
This adversarial system, controlled by the parties rather than the court, is an element of the Common Law system that arose out of England and spread to its colonies.
Surprisingly, our board of adjustment enabling statutes incorporate provisions of a Civil Law system where only the board itself, as judge, is granted the power to compel the production of witnesses and documents. The burden of proof, however, remains with the parties.
The Civil Law system is derived from Roman law and is practiced in various forms throughout most of Europe and other parts of the world. Broadly described, in Civil Law courts the judge directs the production of evidence, decides which questions witnesses are asked and determines the flow of the proceeding.
Our Statutes Don’t Work
City and county boards of adjustment are granted the power to issue subpoenas in N.C.G.S. §§ 160A-388 and 153A-345. The wording in each statute is identical, as follows:
“The board of adjustment may subpoena witnesses and compel the production of evidence. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board of adjustment may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.”
Prior to 2005, county boards were not extended this power for reasons no one seemed to be able to explain. When both board of adjustment sections were revised in 2005, boards of adjustment still had only the power to subpoena without the power to enforce.
Lost in the revision and debate, however, was one essential fact: it’s not the board that needs this power. The party with the burden of proof is the one who needs this power when appearing before these quasi-judicial bodies.
The need to place subpoena power in the hands of the parties can be paramount when the party is challenging governmental action. In the case of a challenge to a zoning administrator’s interpretation of an ordinance or a zoning enforcement officer’s decision finding a notice of violation, the local government has no duty whatsoever to make sure that the administrator or enforcement office are present for cross-examination.
In the case of special and conditional use permits where many of the issues are technical or scientific, the need to compel the attendance of witnesses or the production of documents in third parties’ possession can be critical.
The problems here are twofold: First, the power to compel attendance or document production is in the hand of the wrong entity. The board doesn’t need this power to perform its function, but the party with the burden of proof does. Second, there is no statutory procedure by which the party who needs the board to exercise its subpoena power can appeal to the board to do it.
Statutory Amendments are Needed
Statutory amendments should be in one of two forms.
The first potential change would be to recognize the unique and hybrid form of governmental body we have created in boards of adjustment and to grant attorneys the power to issue subpoenas in this context. The advantage of this change is that subpoenas can be issued quickly and efficiently by officers of the court knowledgeable of the process.
The disadvantage is that citizens appearing without legal counsel would not have the same statutory authority. However, this is not a new issue because citizens appearing pro se in the General Court of Justice don’t have subpoena powers either. Citizens who choose to appear pro se could simply appeal to the board to issue the same subpoena an attorney would.
The second potential change is to clarify G.S. 153A-345 and 160A-388 to establish a procedure by which parties may request the issuance of subpoenas and to make it abundantly clear that it is a nondiscretionary administrative function performed by the board chair.
If the issuance requires board action, then parties will have to wait until the next board meeting – the meeting when the matter is most likely to be scheduled for hearing – in order to get a subpoena issued, and by that time it is too late. The hearing will have to be postponed until the next meeting a month later. Such a cumbersome procedure would be riddled with both inefficiency and frustration and we can do better than that.
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