[HISTORY: Adopted by the Town Board of the Town of Amherst 4-16-2018 by L.L. No. 9-2018. Amendments noted where applicable.]
This Chapter shall be called entitled "Town of Amherst Adjudicatory Proceedings."
The purpose of this Local Law is to establish rules and procedures to be utilized in all disciplinary proceedings brought against members of the Zoning Board of Appeals, the Planning Board and the Amherst Traffic Safety Board (ATSB).
This Chapter is enacted to provide for a procedure consistent with due process to remove members of the Zoning Board of Appeals, the Planning Board or the ATSB for cause.
Any action taken to discipline or remove members of the Zoning Board of Appeals, the Planning Department or the ATSB shall be prosecuted by the Town Attorney and his/her designee.
In an adjudicatory proceeding, all parties shall be afforded an opportunity for a hearing within a reasonable time of the charges being lodged against them.
All parties shall be given reasonable notice of such hearing. The notice shall include: (a) a statement of the time, place and nature of the hearing; (b) a statement of the legal authority and jurisdiction under which the hearing is to be held; (c) a reference to the particular sections of the statutes, ordinances, local laws and rules involved, where possible; and (d) a short and plain statement of matters asserted will constitute just cause for the proceeding.
All parties should be afforded an opportunity to present written argument on issues of law and an opportunity to present evidence and argument on issues of fact. Nothing contained herein shall be constructed to prohibit the Town Board from allowing parties to present oral argument within a reasonable time. In fixing the time and place for the hearings and oral argument, due regard shall be had for the convenience of the parties.
Unless precluded by a statute, disposition may be made of any adjudicatory proceeding by stipulation, agreed settlement, consent order, default or other informal method.
The record in an adjudicatory proceeding shall include:
all notices, pleadings, motions, intermediate rulings;
proposed findings and exceptions, if any;
any findings of fact, conclusions of law or other recommendations made by the presiding officer; and
any decision, determination, opinion, order or report rendered.
The Town Board shall make a complete record of all the adjudicatory proceedings conducted before it. For this purpose, unless otherwise required by statute, the Town Board may use whatever means it deems appropriate, including to but not limited to the use of stenographic transcriptions or electronic recording devices. Upon request made by any party upon the Town Board, within a reasonable time, but prior to the time for commencement of judicial review, of its giving notice of its decisions, determination, opinion or order, shall prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy of the record and transcript or any part thereof to any party who requests the same. Except when any statute provides otherwise, the Town Board is authorized to charge not more than its cost for the preparation and furnishing of such record or transcript or any part thereof or at the rate specified in the contract between the Town Board and a contractor if prepared by a private contractor.
Findings of fact shall be based exclusively on the evidence and on matters officially noticed.
Except as otherwise provided by statute, the Town Board members shall be presiding officers. Hearings shall be conducted in an impartial manner and shall be chaired by the Town Supervisor, or if he/she is unable to act, the Deputy Town Supervisor. Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of a presiding officer, the Town Board shall determine the matter as part of the record of the case and its determination shall be a matter subject to judicial review at the conclusion of the adjudicatory proceeding. Whenever a board member is disqualified or it becomes impractical for him or her to continue the hearing, another presiding officer may be assigned to continue with the case unless it is shown that substantial prejudice to the party will result therefrom.
Except as otherwise provided by statute, the chairperson is authorized to:
Administer oaths and affirmations.
Sign and issue subpoenas in the name of the Town Board at the request of any party requiring attendance and giving of testimony between witnesses and the production of books, papers, documents and other evidence and said subpoenas shall be regulated by the Civil Practice Law and Rules. Nothing herein contained shall affect the authority of an attorney for the party to issue such subpoenas under the provisions of the Civil Practice Law and Rules.
Provide for the taking of testimony by deposition.
Regulate the course of the hearings, set the time and place for the continued hearings and fix the time for filing of briefs and other documents.
Direct the parties to appear and confer to consider the simplification of the issues by consent of the parties.
No decision, determination, or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence. Unless otherwise provided by any statute, the Board of Ethics need not observe the rules of evidence observed by courts, but shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, the Town Board may, for the purpose of expediting hearings, and when the interests of the parties will not be substantially prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.
All evidence, including records and documents in the possession of the Town Board of which it desires to avail itself, shall be offered and made part of the record, and all such documentary evidence may be received in the form of copies or excerpts, or by the incorporation by reference. In case of incorporation by reference, the materials so incorporated shall be available for examination by the parties before being received in evidence.
A party shall have the right of cross examination of witnesses.
Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the Town Board. When official notice is taken of a material fact not appearing in evidence in the record and of which judicial notice could not be taken, every party shall be given notice thereof and shall on timely request be afforded an opportunity prior to the decision to dispute the fact or its materiality.
A final decision, determination, or order in the adjudicatory proceedings shall be made by majority vote of the Town Board and shall in writing or stated in the record and shall include findings of fact and conclusions of law or reasons for the decision, determination, or order. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with these rules, a party submitted proposed findings of fact, the decision, determination or order shall include a ruling upon each proposed finding. A copy of the decision, determination, or order shall be delivered or mailed to each party and to his attorney of record within five (5) days of its issuance.
Unless required for the disposition of ex parte matters authorized by law, members of the Town Board assigned to render a decision or to make findings of fact and conclusions of law in an adjudicatory proceeding shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. Any such Town Board member (a) may communicate with other members of the Board and (b) may have the aid and advice of the Town Attorney and staff other than staff which has been or is engaged in the investigative or prosecuting functions in connection with the case under consideration or factually related case.
(a) The Town Board shall maintain an index by name and subject of all written final decisions, determinations, and orders rendered by the Town Board in adjudicatory proceedings. For purposes of this subdivision, such index shall include by name and subject all written final decisions, determinations and orders rendered by the Town Board pursuant to a statute providing any party an opportunity to be heard, other than a rule making statute. Such index and the text of any such written final decision, determination or order shall be available for public inspection and copying. Each decision, determination and order shall be indexed within sixty (60) days after having been rendered.
(b) The Town Board may delete from any such index, decision, determination or order any information that, if disclosed, would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of the public officers law and may also delete at the request of any person all references to trade secrets that if disclosed, could cause substantial injury to the competitive position of such person. Information which would reveal confidential material protected by federal or state statute, shall be deleted from any such index, decision, determination, or order.