[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.
1.
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.
2.
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.
3.
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.
4.
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.
5.
Unless precluded by a statute, disposition may be made of any adjudicatory
proceeding by stipulation, agreed settlement, consent order, default
or other informal method.
1.
The record in an adjudicatory proceeding shall include:
2.
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.
3.
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:
1.
Administer oaths and affirmations.
2.
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.
3.
Provide for the taking of testimony by deposition.
4.
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.
5.
Direct the parties to appear and confer to consider the simplification
of the issues by consent of the parties.
1.
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.
2.
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.
3.
A party shall have the right of cross examination of witnesses.
4.
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.
1.
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.
2.
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.
3.
(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.
