Administrative hearing before the Planning Board: how it is set, held and decided

It is Chapter 11.6 of Joint Regulation No. 9473, titled "Administrative Hearings", governing the holding of hearings and miscellaneous provisions for resolving cases before the Planning Board: the designation and powers of the Hearing Officer, inhibition and recusal, extensions, summoning witnesses, the hearing itself, suspensions, summary adjudication, the Hearing Officer’s report, the resolution, consolidation of cases and correction of clerical errors.

The Board may hold administrative hearings, where it considers it necessary, to deal with three types of case: reconsideration requests under Chapter 11.5; the requesting party’s arguments against provisional orders, orders to do or not to do, or cease-and-desist orders issued under Articles 11(8) and (9) of Ley No. 75; and arguments against automatic cease-and-desist orders, automatic stoppage orders or show-cause orders issued under Article 14.5 of Ley 161-2009. Note the verb: may. A hearing is not automatic; the Hearing Officer summons one when it considers it necessary to resolve the case.

• To seek the Hearing Officer’s recusal: filing within five (5) working days of learning the reason, before the very Hearing Officer whose inhibition is sought, with a concise narration of the facts and supporting evidence.Verified against the official source
• To seek an extension: the request must reach the Board at least three (3) working days before the term expires.Verified against the official source
• To summon witnesses or experts: filing in writing their names, postal address and e-mail address at least ten (10) calendar days before the hearing.Verified against the official source
• To seek suspension or transfer of a hearing: doing so in writing, notifying all parties, at least ten (10) working days in advance, including three (3) available dates within a period no longer than thirty (30) days.Verified against the official source
• To seek a private hearing: filing a reasoned written request establishing the irreparable harm a public hearing would cause.Verified against the official source

Information pending verification.

1. 1

   Step 1: When there is a hearing

   The Board may hold administrative hearings, where it considers it necessary, for three things: to deal with reconsideration requests under Chapter 11.5; to hear the requesting party’s arguments against provisional orders, orders to do or not to do, or cease-and-desist orders issued under Articles 11(8) and (9) of Ley No. 75; and to hear arguments against automatic cease-and-desist orders, automatic stoppage orders or show-cause orders issued under Article 14.5 of Ley 161-2009. The Board may also designate a Hearing Officer to handle the reconsideration request.

2. 2

   Step 2: Who presides and what they may do

   The hearing is held before a Hearing Officer designated by the Board’s Permit Audit Officer. Their powers are eight: to issue at any time the orders appropriate and necessary for the rapid, just and efficient resolution of cases; to summon an administrative hearing where they consider it necessary; to conduct and record the hearing; to grant or deny requested extensions, with discretion and in line with the public policy of promoting a rapid, just and efficient resolution; to impose the sanctions they consider necessary on the parties or their lawyers; to administer oaths; to dispose of procedural matters, discovery, orders and subpoenas for witnesses and protective orders; and to issue a report to the Permit Audit Officer with findings of fact, conclusions of law and their recommendation.

3. 3

   Step 3: The fifteen days’ notice and the seven warnings

   Notice of the hearing setting is sent to the parties at least fifteen days in advance, to the e-mail address in the case file or by regular mail where no e-mail was given to the Board’s Audits and Complaints Division. And that notice must contain seven things: date, time and place; the warning that requesting parties have the right to appear personally or assisted by their lawyer, to present evidence and to cross-examine witnesses; the citation of the legal or regulatory provision authorising the hearing; a brief reference to the nature of the action before the Board; a warning of the measures the Hearing Officer may take if a party fails to appear; the warning that the hearing may not be suspended except in exceptional and meritorious situations at the Hearing Officer’s discretion; and the warning that the Hearing Officer may exclude from the hearing anyone whose conduct is disorderly or prejudicial. If you are represented, notice goes to your lawyer’s e-mail; if you appear pro se, to yours.

4. 4

   Step 4: The hearing is public, absent irreparable harm

   The regulation says it in one line: the administrative hearing is public. If a party wants it conducted privately, they may file a reasoned written request establishing the irreparable harm a public hearing would cause them. The Hearing Officer has discretion to allow it where they determine that a public hearing will cause that irreparable harm, and must resolve the request within ten days of its filing at the Board.

5. 5

   Step 5: Recusing the Hearing Officer

   Hearing officers are required to step aside in six situations: prejudice or partiality toward any of the persons or lawyers intervening, or having prejudged the case; personal or economic interest in the outcome; having been lawyer or adviser to any party or their lawyers on the matter in controversy; a person intervening in the proceeding having facilitated or arranged a loan for them without the usual guarantees or conditions; where one of the parties’ lawyers is, or has been in the last three years, lawyer to the hearing officers who must resolve the controversy; and any other cause that could reasonably cast doubt on their impartiality or tend to undermine public confidence in the justice system. They must step aside as soon as they detect the conflict or the appearance of one, by written resolution addressed to the Permit Audit Officer and notified to all parties.

6. 6

   Step 6: And how that recusal is requested

   Parties may also request it. The filing is made within five working days of learning the reason relied on, notified to the other parties, with a concise narration of the facts supporting it and accompanied by the evidence. And it is filed before the very Hearing Officer whose inhibition is sought. If they decide to step aside, they issue a resolution stating the cause and notify the Permit Audit Officer and the parties. If they decide not to, they must abstain from resolving the case until the Permit Audit Officer assigns another Hearing Officer to resolve the recusal request. The recusal filing must be resolved within five working days of being filed.

7. 7

   Step 7: Extensions and witnesses

   Extension requests must reach the Board at least three working days before the term expires; if granted, the additional term runs from the expiry of the original term. To summon witnesses or experts you must file in writing their names, postal address and e-mail at least ten calendar days before the hearing. Summonses go by e-mail in the first instance; anyone with no e-mail is summoned by ordinary mail or personal delivery, and in that case the Board hands the interested party the necessary documents and that party returns a copy with a sworn statement certifying what was done. If a summoned witness or expert refuses to appear, the Hearing Officer may ask the Court of First Instance to order them to appear and testify.

8. 8

   Step 8: How the hearing is conducted

   Parties may appear pro se or represented by counsel. The Hearing Officer swears in witnesses before they testify and conducts the proceedings. Everything is recorded electronically, and the official recording is kept by the Board; parties may ask to record with their own means and this will be authorised, provided they show it will not hinder or delay the process. Two rules that surprise people coming from court: the rules of evidence do not apply to administrative hearings, although their fundamental principles may be used to achieve a rapid, just and economical resolution; and discovery procedures do not apply, except where the adjudication was begun on the Board’s own initiative. The Hearing Officer may exclude evidence that is impertinent, immaterial, repetitive or inadmissible on constitutional or legal grounds based on privileges recognised by Puerto Rico’s courts, and may take official notice of anything that could be judicially noticed.

9. 9

   Step 9: Suspending the hearing: costly and hard

   Hearings are suspended only where a meritorious cause is evidenced in writing to the Hearing Officer’s satisfaction. The request must be in writing, notified to all parties, filed at least ten working days before the hearing date, and include three dates available in your calendar within a period no longer than thirty days from the hearing whose suspension is sought. Failing that process means denial, unless the request shows extraordinary and unforeseeable circumstances outside the parties’ or their lawyers’ control, duly evidenced in writing. If there is a conflict with another judicial, legislative or administrative setting, the Board hearing is suspended provided you present satisfactory evidence that the other setting was made first; if it was made later, the request is denied unless you evidence that you reported the conflict to the other body and that your efforts there were unsuccessful. The Hearing Officer has three calendar days to resolve, weighing the case’s filing date, the procedure followed including previous suspensions and their causes, and the adverse party’s timely opposition. Late witness-summons requests are not cause for suspension. And if a suspension has not been expressly granted, the hearing goes ahead as set with whoever appears. Most important: a suspension or transfer request made by the requesting party amounts to a waiver of the terms established in Ley No. 75, Ley 81-1991, Ley 161-2009 and Ley 38-2017 for resolving the reconsideration request.

10. 10

    Step 10: When no hearing is needed

    There are three exits. The first: any case where the Hearing Officer has a question of law before them and no material facts in controversy may be resolved by summary resolution with no further procedure. The second: parties may request summary resolution of the case, and whoever opposes has ten calendar days from notice of the request to file their opposition; having evaluated the request, the opposition and the documents in the file, the Hearing Officer may issue a final or partial summary resolution if they determine no hearing is needed. The third: if the parties stipulate the material or essential facts and only questions of law remain, they file a joint motion, the case is submitted, and the Hearing Officer may issue a final resolution without holding a hearing.

11. 11

    Step 11: The report, the resolution and who really decides

    Once the hearing process ends and the case is submitted, the Hearing Officer issues a report to the Permit Audit Officer, and from that moment no additional evidence from the parties is admitted. The report must identify the controversies to be adjudicated and the findings of fact and conclusions of law supporting its recommendation, taking into account the proven facts and the applicable law. On receiving the report, the Permit Audit Officer issues the resolution adjudicating the controversies, stating findings of fact and conclusions of law. And here is the nuance worth keeping in mind: the Board is not obliged to adopt the Hearing Officer’s recommendation; nonetheless, its adjudication is made in accordance with law.

12. 12

    Step 12: Consolidation and clerical errors

    Two closing rules. The Hearing Officer, at their discretion or at a party’s request, may consolidate any request involving similar questions of fact or law, to advance a just, rapid and economical adjudication. And clerical errors in resolutions or orders may be corrected by the Board at any time, on its own initiative or at any party’s request; but note the effect, because it decides deadlines: correcting these clerical errors does not interrupt the term for seeking judicial review.

The hearing is held before a Hearing Officer designated by the Planning Board’s Permit Audit Officer, and settings and notices are handled by the Board’s Audits and Complaints Division, which notifies orders and resolutions to the e-mail in the case file. A recusal request is filed before the very Hearing Officer whose inhibition is sought. Where a summoned witness or expert refuses to appear, the Hearing Officer turns to the Court of First Instance.

• Asking for a suspension without knowing it amounts to a waiver of the statutory terms for deciding the reconsideration.
• Asking for a suspension with less than ten working days’ notice or without offering three dates within the following thirty days.
• Failing to appear believing the hearing was suspended when it was not expressly granted.
• Filing the witness-summons request outside the ten calendar days and expecting that to suspend the hearing.
• Asking for an extension with less than three working days before the term expires.
• Letting the five working days to seek the Hearing Officer’s recusal lapse.
• Filing the recusal before another official rather than before the Hearing Officer themselves.
• Counting on discovery, which does not apply except where the Board began the adjudication.
• Believing that correcting a clerical error reopens the term for seeking judicial review.

These are the government pages this guide is based on.

• Junta de Planificación de Puerto Rico (JP)

  Junta de Planificación

  docs.pr.gov

• Planning Board

  jp

  jp.pr.gov