The hearing gives the parties the opportunity to argue their cases to the board. The main goal of this hearing is for the board to ask questions of the parties and to clarify any items of concern raised from the briefs.
The case will be heard by a three-member panel. Any objection to the assigned panelists should be filed at least seven days before the prehearing conference.
The hearing will be held by videoconference or in-person, as agreed in the prehearing conference.
Before the hearing, the panelists will review the briefs and exhibits, consult with each other, and research legal issues.
The presiding officer provides the agenda a week before the hearing, setting the times for arguments. The petitioner will be given time for opening arguments and rebuttal at the end. If the petitioner is an organization, a single spokesperson will be identified and will provide oral argument. If a party is supported by an intervenor, the party determines how much time to share with the intervenor. Amici generally are not permitted to participate in oral arguments.
The parties themselves, through their attorneys or through any authorized representative, are permitted to argue before the board. The public is welcome to attend and observe; however, the Hearing on the Merits is not a public hearing and the board does not take public comment. The board may take testimony or ask a question of staff, but rarely does so.
As noted in the prehearing order, interpreters and hearing assistance devices are available upon advance request, if needed. The hearing is recorded either digitally or by a court reporter. Although the court reporter is recording a verbatim report of the proceedings, a transcript normally is not ordered unless specifically requested. The party requesting a transcript must pay to produce it.
Any party to the case may file a Motion. A motion is a request by one or more of the parties asking the board to rule on a particular question of procedure or substance. The prehearing order for the case sets a specific schedule for submission of motions and responses, with the goal of moving the case along.
Dispositive Motions: A dispositive motion, often brought by the respondent, asks the board to dismiss a Petition for Review on the grounds that it is untimely, the petitioner lacks standing, or the board lacks subject matter jurisdiction. If the case raises threshold questions of proper notice and public participation procedures, either party may bring a dispositive motion to resolve those issues, on limited evidence relevant to the challenge.
Motion to Supplement the Record: A motion to supplement the record should be filed when the parties disagree on the inclusion of an item in the record. If a party is seeking to amend the record with items it believes the jurisdiction erroneously omitted, the party should first ask the city or county for the requested item to be included in the record. The city or county then must file an amended Index to the Record to include the requested item. If the county or city disagrees, or if the jurisdiction itself or any party wishes to add a non-record document, a motion to supplement the record must be filed, attaching a copy of the document and explaining why it will be of substantial assistance to the board. Non-dispositive motions are decided by the presiding officer.
Procedural Motions: A party filing a motion on a routine or procedural matter is encouraged to inform the other parties and to indicate in the motion whether other parties concur so that an order may be expeditiously entered. Panels’ procedures for deciding motions vary. The prehearing order and subsequent orders in the case will indicate whether rebuttal briefs are allowed and whether the board will allow oral argument.
Motion Filing Schedule
The prehearing order contains the case schedule and provides all the filing deadlines for motions and briefs. All parties must comply with the filing deadlines. The board may disregard a motion, brief, or response that is submitted after the filing deadlines.