§ 5. Hearing Procedures  


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  • A. Appearances by Appellant. An appellant may appear in person at the hearing, or may be represented by an attorney or by an authorized agent. Any reference herein to the term "appellant" shall be deemed to be inclusive of appellant's attorney or authorized agent. In the event that the appellant fails to appear as scheduled before the Board and has not requested a postponement as set forth in Section 3(F) above, then the Board, in its discretion, shall have the right to (i) postpone the hearing until the next regularly scheduled hearing of the Board; (ii) dismiss the case based on appellant's failure to prosecute the appeal; or (iii) rule on the merits of the appeal based on the Board's review of the application materials submitted by the appellant and any arguments and documents, and, subject to the rules governing their introduction, testimony or evidence submitted by an appellee. All persons wishing to appear before the Board shall sign in on a sheet provided by the Secretary and located at the entrance to the hearing room. The Board shall have the right to exclude testimony of anyone who has failed to sign in.

    B. Burden of Proof. The burden of proof shall be on the appellant.

    C. Ex Parte Communication. Board members shall refrain from discussing official matters of the Board with the public or with a party outside of the regularly scheduled meeting of the Board. No party shall discuss any official matter of the Board with any Board member outside of the regularly scheduled meeting of the Board. A Board member shall immediately report to the City Solicitor any instances or attempts of bribery, intimidation, retaliation, or obstruction of official business (as those terms are defined by Chapter 29 of the Ohio Revised Code), or any other instances or attempts of ex parte communication or influence by anyone.

    D. Written Arguments. The Board may consider written motions, memoranda, or other written argument from the appellant or an appellee. Written documents shall be submitted to the Secretary for the consideration of the Board not later than five (5) business days prior to the date of the hearing. The Secretary shall not accept any late documents. The party filing a motion or memorandum shall send a copy by electronic or ordinary mail to the appellant and all appellees. No other party shall be required to be served. Any member of the public may request a copy from the Secretary. Any written materials filed later than the filing period set forth above may be considered at the hearing at the discretion of the Chair. In order to provide the Board with sufficient time for review, submission of large or numerous documents at the hearing is highly discouraged; provided, however that enlargements and copies of timely submitted documents may be used and distributed at a hearing. Motions to dismiss an appeal on grounds of standing shall be made in writing to the Secretary in accordance with this Section 5(D) and shall be ruled upon at a hearing of the Board.

    E. Oath. All persons providing testimony before the Board shall be sworn in prior to testifying. An attorney shall not be sworn in unless the attorney is acting as a witness or providing testimony rather than acting as an advocate and providing argument.

    F. Decorum. It shall be the duty of the Chair to maintain decorum at all times during the hearing. Prior to testifying at a hearing before the Board, all persons appearing before the Board shall clearly state their first and last name and their personal address or business address for the record. All speakers shall speak clearly into the microphone provided on the speakers table or podium and shall refrain from speaking over other parties. No person shall be permitted to speak from the audience. The Chair shall have the right to expel from a meeting any person exhibiting a lack of decorum or causing disruptive or combative behavior from the hearing.

    F[G.]. Hearing Procedure.

    1. Record Hearing. The following procedures shall apply where an appeal is taken from a decision made following sworn testimony taken at a prior public proceeding (i.e. before the Zoning Hearing Examiner or the Historic Conservation Board) (a "Record Hearing"):

    a. In a Record Hearing, argument may be heard, but no evidence or testimony outside of the record shall be admitted unless additional evidence is permitted by the Board pursuant to the terms of the Zoning Code. Therefore, only parties who have spoken on the record at a prior proceeding may address the Board, and then only to provide clarification of evidence in the record. The Chair may limit or exclude any testimony that the Chair deems, in the Chair's discretion, is outside the scope of the record before the Board. The Board may interrupt any speaker to ask questions or to make any comments; provided, however, the time for the interruptions shall not be deducted from the time limitations set forth below.

    b. The appellant shall first present its appeal case. The time limit for the appellant's case shall be a maximum combined total of forty-five (45) minutes. If there is more than one appellant, then the appellants may determine the length of time each appellant will have to present their arguments; otherwise, the Chair, in his or her discretion, will divide the total allotted time evenly between or among the appellants. Upon the expiration of the allotted time for the appellant(s) to present their appeal, the Chair, in his or her discretion, may grant one (1) extension of a combined total of fifteen (15) minutes for the appellant to continue to present their appeal. The Chair may entertain discussion and input from the other Board members regarding any time extension.

    c. The appellee shall have a combined total of forty-five (45) minutes to present a case in opposition. If there is more than one appellee, the appellees may determine the length of time each appellee will have to present his or her argument; otherwise, the Chair, in his or her discretion, will divide the total allotted time evenly between or among the parties. In the event that an opposition group attends the hearing in opposition to the appeal, the Chair may request that one (1) spokesperson from the opposition group address the Board. The Chair, in his or her discretion, may grant one (1) extension of a combined total of fifteen (15) minutes for any opposing parties to present their arguments in opposition. The Chair may entertain discussion and input from the other Board members regarding any time extension.

    d. The Board shall entertain comments from members of the public not affiliated with the appellant or the appellee. The members of the public may indicate their agreement or disagreement with the arguments made by the appellant or the appellee.

    e. The appellant shall have the right to present a rebuttal for a combined total of fifteen (15) minutes.

    f. The Board may then entertain a motion to deliberate, a motion for a determination of the outcome of the appeal, a motion to continue the hearing, or such other action permitted by applicable law.

    2. De Novo Hearing. The following procedures shall apply to an appeal taken from a decision by the Director of City Planning and Buildings or his or her designee (i.e. appeal of permit) ("De Novo Hearing"):

    a. In a De Novo Hearing, proof shall be established by a preponderance of the evidence. All interested and proper parties may present competent and relevant evidence before the Board. The Board seeks facts, not opinions, and those facts shall have a direct bearing on the particular issue(s) before the Board. The Chair may limit or exclude any testimony that, in the Chair's discretion, does not have any tendency to prove or disprove any issue in the case before the Board and is irrelevant. The Board may interrupt any speaker to ask questions or to make any comments; provided, however, the time for the interruptions shall not be deducted from the time limitations set forth above.

    b. If an appellee has made a notice of appearance in a case, then no later than ten (10) days prior to the hearing date, appellant and appellee shall provide each other with written notice of all witnesses and exhibits that each party intends to present or use at the hearing. A copy of the notices shall be sent to the Secretary by e-mail and regular mail. Failure to timely provide the required notice shall be cause for the Chair to exclude any unidentified testimony and/or evidence.

    c. The appellant shall first present its appeal. The time limit for the appellant's case shall be a combined total of sixty (60) minutes. If there is more than one appellant, the appellants may determine the length of time each appellant will have to present its arguments; otherwise, the Chair, in his or her discretion, will divide the allotted time evenly between or among the appellants. Upon the expiration of the allotted time for the appellant to present his or her appeal, the Chair, in his or her discretion, may grant one (1) extension of a combined total of fifteen (15) minutes for appellant to present their appeal. The Chair may entertain discussion and input from the other Board members regarding any time extension.

    d. The appellee shall have a combined total of sixty (60) minutes to present his or her arguments in opposition. If there is more than one appellee, the parties may determine the length of time each party will have to present its argument; otherwise, the Chair, in his or her discretion, will split the allotted time evenly between or among the parties. In the event that a large group attends the hearing in opposition to the appeal, the Chair shall request that one (1) spokesperson from the group addresses the Board. The Chair, in his or her discretion, may grant one (1) extension of a combined total of fifteen (15) minutes for the appellee to present his or her case. The Chair may entertain discussion and input from the other Board members regarding any time extension.

    e. The appellant may request to undertake cross-examination of any person who has testified at the hearing under oath and in opposition to the appellant's appeal. The scope of appellant's cross-examination shall be limited to testimony taken at the hearing or in the prior proceeding. The appellant shall have a maximum of thirty (30) minutes for their cross-examination of all persons speaking in opposition to the appeal. Likewise, the appellee may request to undertake cross-examination of any person who has testified at the hearing under oath and in favor of the appeal. One representative shall be selected in the case of multiple appellees to conduct their cross-examination. The scope of the appellee's cross-examination shall be limited to testimony taken at the hearing or in the prior proceeding. The appellee shall have a maximum of total thirty (30) minutes for the cross-examination of all persons speaking in favor of the appeal.

    f. Following the close of the appellee's case, the Board shall entertain comments from members of the public not affiliated with the appellant or the appellee. All comments must be made under oath. Each member of the public shall have two (2) minutes to present their testimony. The appellant or the appellee may then cross-examine any members of the public who testifies. The Chair may impose reasonable time limits on the cross-examination of members of the public.

    g. In the event that any party testifies in opposition to an appeal, then after the appellant has had an opportunity to cross-examine any opposing party, the appellant shall have the right to present a rebuttal of a combined total of fifteen (15) minutes.

    h. After all presentations have been made on the appeal, the Board may entertain a motion to deliberate, a motion for a determination of the outcome of the appeal, a motion to continue the hearing, or such other action permitted by applicable law.

    G.[H.] Parliamentary Rules. The Board shall follow rules and procedures set forth herein in the conduct of its meetings. Where these rules and procedures are silent, Roberts' Rules of Order may be applied by the Chair.