(specially concurring).
I concur in the result and join the majority opinion’s discussion of its holdings that an appeal to the EPC is a de novo hearing, that witnesses at hearings before the EPC must be sworn, and that certain protestors did not have standing at the hearing before the EPC in this case.
Also, I agree with the majority that the EPC should not have considered testimony of witnesses who were not subject to cross-examination. My disagreement with the majority is that I would not rest the right of cross-examination on the constitutional right to due process. We should refrain from reaching constitutional questions unnecessarily. See Huey v. Lente, 85 N.M. 597, 514 P.2d 1093 (1973). I would read the Zoning Code as requiring cross-examination in the circumstances of this case.
It appears to be customary practice in the United States to permit cross-examination at hearings before zoning agencies. See Annotation, Right to Cross-Examination of Witnesses in Hearings Before Administrative Zoning Authorities, 27 A.L. R.3d 1304 (1969). This right to cross-examination sometimes is based on constitutional considerations or explicit statutory language, but it is also considered to be implicit in the grant of a right to a public hearing. See id. As stated in E & E Hauling, Inc. v. County of DuPage, 77 Ill.App.3d 1017, 33 Ill.Dec. 536, 396 N.E.2d 1260, 1263 (1979): “The general rule is well established that a ‘public hearing before any tribunal or body’ means ‘the right to appear and give evidence and also the right to hear and examine the witnesses whose testimony is presented by opposing parties.’ ” (Quoting Braden v. Much, 403 Ill. 507, 513, 87 N.E.2d 620, 623 (1949)).
Thus, the right to cross-examination follows from Section 45.C.3. of the Zoning Code, which states: “The Planning Commission shall hold a public hearing and make a decision relative to all appeals sent to it initially or remanded to it by the City Council.” Section 45.E.1. also provides for a public hearing on appeals to the EPC. The conclusion that the Zoning Code provides a right to cross-examination is buttressed by Section 42.B.7. That section provides that in hearings before a zoning hearing examiner “[a] party shall be afforded an opportunity to present evidence and argument and to question witnesses on all relevant issues * * * * ” (Emphasis added.) The natural interpretation of this language is that the parties can question adverse witnesses as well as those they call. Nothing in the Zoning Code suggests that parties to a de novo appeal before the EPC have less of a right to question witnesses than they have in hearings before a zoning hearing examiner. Indeed, the need for reliable evidence is at least as great before the EPC as it is before the hearing examiner. Therefore, Section 42.-B.7. should apply to de novo hearings before the EPC.
Although Section 42.B.7. states, “[e]xaminer may impose reasonable limitations on the number of witnesses heard, and on the nature and length of their testimony and questioning,” there could be no contention that the restrictions in this case were reasonable. Absolutely no cross-examination was permitted at the EPC hearing, despite the clear utility of such questioning. In sum, the testimony offered by the protestants at the EPC hearing was inadmissible because of the failure to permit cross-examination of the witnesses.