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DCPCUP-0000-00643
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DCPCUP-0000-00643
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Last modified
3/7/2017 3:55:46 PM
Creation date
3/7/2017 3:55:07 PM
Metadata
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Template:
Rezone/CUP
Rezone/CUP - Type
CUP
Petition Number
00643
Town
Burke Township
Section Numbers
26
AccelaLink
DCPCUP-0000-00643
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-6- <br /> Adjustment . In this case the Court heard live testimony and all wit- <br /> nesses were subjected to cross-examination as part of the search for <br /> truth" . (Reply Brief of the Plaintiffs, p.3 ) The plaintiffs contend <br /> that certain witnesses had never been cross-examined before the hearing, <br /> and others had not yet testified at all; therefore, all their testi- <br /> mony was "new" . In this Court ' s understanding, the Klinger standard <br /> refers to substance rather than type of evidence. For example , if <br /> the record consisted entirely of documentary evidence, the testimony <br /> of a new witness, although formally different , may still comprise <br /> evidence that is substantially the same as the documentary evidence . <br /> Enabling a circuit court to pre-empt the discretion committed to the Board <br /> by, for another example, simply taking in affidavit form some testimonial <br /> evidence already on the record, runs counter to the Supreme Court ' s <br /> mandate that the Board receive due deference. <br /> Although the defendant, Madison Crushing, introduced evidence <br /> at the hearing that was not before the Board, its evidence supports the <br /> decision of the Board, and it is not pertinent to the question of whether <br /> or not the plaintiffs ' evidence is substantially the same as that before <br /> the Board. <br /> Accordingly, this Court finds that the evidence it took in <br /> the evidentiary hearing is substantially the same as the evidence that <br /> was before the Board. Pursuant to Klinger, the evidentiary hearing must <br /> be treated asa nullity and the Court is bound by a common-law certiorari <br /> standard of review. <br /> Under the common-law standard, the review is limited to the . <br /> following: <br />
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