You Be the Judge A Session for Planners, Planning Commissioners & Elected Officials Involved in Land Use Decision

1. You Be the Judge A Session for Planners, Planning Commissioners & Elected Officials Involved in Land Use Decisions By Ted Hunter Washington APA Conference 2010 Oct. 5 from 1:15 p.m. to 2:30 p.m.

2. Private Property & Common Good • “Life, Liberty & Pursuit of Happiness” • Liberal Philosophers & Social Contract • Obligations of Government (protection & security) • Obligation of Property Owner (social contribution & avoid harm)

3. US Constitution: The Starting Point “no person …. may be deprived of … property …, without due process of law; nor shall private property be taken for public use, without just compensation.”(Fifth Amendment to US Constitution of 1789, Adopted on December 15, 1791). “No State shall … deprive any person of life, liberty, or property, without due process of law;” (Fourteenth Amendment, Adopted July 9, 1868.)

4. Substantive & Procedural Due Process 5th Amendment Takings & Due Process Claims “Takings” is a substantive claim that seeks compensation from government because: (1) there is a permanent invasion of property; or (2) there is regulation that denies economically viable use of property. Remedy is payment for loss of land.

5. Substantive & Procedural Due Process 5th Takings & 5th, 14th Due Process Claims “Takings” is a substantive claim that seeks compensation from government because: (1) there is a permanent invasion of property; or (2) there is regulation that denies economically viable use of property. Remedy is payment for loss of land. “Due process” violation is a claim based on arbitrary procedure. Remedy may be invalidation of the governmental action, as well as payment of costs and attorney’s fees.

6. Critically Important Cases!“Due Process” required when making a land use decision Lingle v. Chevron, U.S. A., Inc. 544 U.S. 528 (2005) “[A] regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause.” Crown Point Development, Inc. v. City of Sun Valley, 2007 WL 3197049 (C.A. 9 (Idaho) 11/1/2007) “(I)f a governmental action is found to be impermissible for instance because …. it is so arbitrary as to violate due process that is the end of the inquiry. No amount of compensation can authorize such action.”

7. Legislative Due Process Federal Statute: 42 USC 1983 provides that “Every person who, under color of any statute, ordinance, regulation … of any State … subjects, or causes to be subjected, any citizen … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …” (Adopted 1871) Equivalent State Statutes: RCW 64.40 Attorney’s Fees & Costs: If prevailing party

8. Compliance with Requirements of Procedural Due Process Quasi-Judicial v Legislative Hearings Fairness Notice Hearing Record Decision

9. Judicial or Legislative? Is a public hearing required by state statute or local ordinance? Will the decision maker consider evidence for and against the proposal? Will the decision (or recommendation) impact specific parties or will it have an area-wide impact of community significance?

10. Fairness Checklist Must answer “YES” to the following: • Have ex parte contacts been revealed at the public hearing? • Has an opportunity been given to object to a decisionmaker’s participation because of ex parte contact? • Does the decisionmaker have an impartial attitude toward the request? • Is the decisionmaker free from financial benefit that could result from approval or denial of the request? Must answer “NO” to the following: • Will the decisionmakerhave any personal gain or loss because of the decision? • Is there any business competition between the decisionmaker and any of the parties at the hearing? • Are there any familial relationships between the decisionmaker and any of the parties at the hearing? • Has the decisionmaker made a final decision on the request before hearing any testimony or evidence?

11. Notice Checklist • Was the Notice published, posted and mailed? • Did the Notice identify the property and land use request? • Did the Notice state the correct hearing date, time and location? • Did the city staff file a Certification of Public Notice?

12. Hearing Checklist Has the audience been advised of the rules of behavior and does everyone present understand these rules? Has the order of presentation been announced? Are all witnesses identified and sworn in on the record? Is the testimony relevant to what is being reviewed? Have all exhibits been identified for the record? Have all of those who desire to testify been given an opportunity to be heard?

13. The Record Checklist Are micrphones and recording equipment working? Have all exhibits been identified by letter or number? Has all testimony been given either orally or in written form? Have all witnesses referred to the exhibit number rather than “this thing” or “that?” Is the decisionmaker satisfied with the record so that a decision can be made based solely on a review of the record?

14. Decision Checklist Have the criteria for the decision been identified? Are there written Findings that support the decision? Are there written Conclusions that support the decision? Do the Conclusions refer to the Facts that satisfy (or fail to satisfy) the legal criteria? If an approval is conditioned, do the conditions satisfy all legal criteria?

15. Alternatives: Mediation & Hearing Examiner “Mediation” is a facilitated meeting of parties in dispute, where an independent mediator attempts to resolve disputes by agreement of the parties with imposing an outcome upon them. Generally, a successful mediation precludes litigation of the issues resolved in mediation. A “Hearing Examiner” is an individual retained by a municipality to hear and decide land use applications and appeals consistent with local ordinances and the rule of law.

16. Talking with Your Neighbor You are a member of the City Council. Your city is in the process of revising its Comprehensive Plan. Council hearings are scheduled for Tuesday evening. On Tuesday morning, your next door neighbor comes over for coffee and starts telling you what should be in the Comprehensive Plan. She makes a point of telling you that if your neighborhood is protected as a residential area, she and a lot of other neighbors will be very happy and will support you with financial contributions for your next campaign. Must you reveal your talk with your neighbor at the hearing?

17. Talking with Your Neighbor You are a member of the City Council. Your city is in the process of revising its Comprehensive Plan. Council hearings are scheduled for Tuesday evening. On Tuesday morning, your next door neighbor comes over for coffee and starts telling you what should be in the Comprehensive Plan. She makes a point of telling you that if your neighborhood is protected as a residential area, she and a lot of other neighbors will be very happy and will support you with financial contributions for your next campaign. Must you reveal your talk with your neighbor at the hearing? Answer: No. The adoption of the Comprehensive Plan is a legislative issue because it will have a broad community impact. The lobbying of the neighbor is acceptable.

18. Just Say No You are on the City Council. You must decide a request for a variance tonight. A public hearing on the variance was held by the Planning Commission two weeks ago. No one except the applicant thinks the variance is a good idea. You ask the clerk to read the minutes of the public hearing. The only minutes of the Planning Commission hearing state: “Members of the Planning Commission expressed several concerns about the proposal.” On that basis, you vote NO on the variance request. The variance is denied. Was the City Council decision proper?

19. Just Say No You are on the City Council. You must decide a request for a variance tonight. A public hearing on the variance was held by the Planning Commission two weeks ago. No one except the applicant thinks the variance is a good idea. You ask the clerk to read the minutes of the public hearing. The only minutes of the Planning Commission hearing state: “Members of the Planning Commission expressed several concerns about the proposal.” On that basis, you vote NO on the variance request. The variance is denied. Was the City Council decision proper? Answer: No. The decision of the City Council is improper. Decisions must be based on facts and law that are presented in the record. Opinions of the Planning Commissioners are not facts, and should not be the basis for the decision.

20. Change of Plans The Planning Commission reviewed a preliminary plat application and recommended to the City Council that it be approved for ten building lots with no conditions. At the Council meeting, the applicant points out how sixteen lots could be created and asks the Council to approve the plat for sixteen building lots with a condition that no more traffic would be generated by the development of sixteen building lots than what would be generated by the development of ten building lots. Since the Planning Commission did not have the information that the applicant presented to the Council, the Council approves the plat for sixteen building lots. A neighbor to the site, not present at the Council meeting, now wants to challenge the Council. Does she have a case?

21. Change of Plans • The Planning Commission reviewed a preliminary plat application and recommended to the City Council that it be approved for ten building lots with no conditions. At the Council meeting, the applicant points out how sixteen lots could be created and asks the Council to approve the plat for sixteen building lots with a condition that no more traffic would be generated by the development of sixteen building lots than what would be generated by the development of ten building lots. Since the Planning Commission did not have the information that the applicant presented to the Council, the Council approves the plat for sixteen building lots. A neighbor to the site, not present at the Council meeting, now wants to challenge the Council. Does she have a case? • Answer: • Yes. The applicant has changed his request. It is assumed that notice was given for a ten-lot subdivision. The decision should only address that request. The Council was in error to approve the larger plat.

22. Who Are You? The applicant is a church that wants to expand its facility in a residential zone on a site that includes some wetlands. At the public hearing for a Conditional Use Permit, a non-resident of the city who is concerned about the environment wants to testify against the application. The Mayor does not allow the testimony. The permit is approved by voice vote. The non-resident threatens a damage action against the city. Were the Mayor’s actions proper?

23. Who Are You? • The applicant is a church that wants to expand its facility in a residential zone on a site that includes some wetlands. At the public hearing for a Conditional Use Permit, a non-resident of the city who is concerned about the environment wants to testify against the application. The Mayor does not allow the testimony. The permit is approved by voice vote. The non-resident threatens a damage action against the city. Were the Mayor’s actions proper? • Answer: • No. The residency of the witness has no importance as to whether he can testify. However, the proximity of the witness’ residence and the impact to him can be considered by the Council in reaching a decision.

24. What Do You Really Know? You are presiding at a hearing on a controversial request for a rezone. Your city ordinances state that public notice must be given by publication, by posting notice on-site and mailing notice to those within 200 feet of the property. Someone at the hearing says he lives next door to the property proposed for a rezone, but he never received a mailed notice. The clerk explains that the mailing was never done because it cost too much and, besides, everyone in town already knew about the hearing. Should you reschedule the hearing to a future date?

25. What Do You Really Know? You are presiding at a hearing on a controversial request for a rezone. Your city ordinances state that public notice must be given by publication, by posting notice on-site and mailing notice to those within 200 feet of the property. Someone at the hearing says he lives next door to the property proposed for a rezone, but he never received a mailed notice. The clerk explains that the mailing was never done because it cost too much and, besides, everyone in town already knew about the hearing. Should you reschedule the hearing to a future date? Answer: Yes. Proper notice was not given. Schedule a specific time, place and date, and have the city staff send out revised notice of the hearing.

26. Who Cares? The Applicant is a well known sports fan. He files an application for a new housing development with the Planning Department of the City where you serve on the Planning Commission. You were not aware of this when she invited you to join her in the company’s suite at the next baseball game. There is no discussion of the housing development at the baseball game. However, you are surprised to see the Applicant at a hearing on a request for plat approval that is now before you for decision as a Planning Commission. Can you hear and decide this application?

27. Who Cares? The Applicant is a well known sports fan. He files an application for a new housing development with the Planning Department of the City where you serve on the Planning Commission. You were not aware of this when she invited you to join her in the company’s suite at the next baseball game. There is no discussion of the housing development at the baseball game. However, you are surprised to see the Applicant at a hearing on a request for plat approval that is now before you for decision as a Planning Commission. Can you hear and decide this application? Answer: You must disclose the contact you had with the Applicant, and let anyone who is present object to you deciding this application. You then must determine if you can decide the application without bias or if you must recuse yourself.

28. You Be the Judge A Handbook for Planners, Planning Commissioners & Elected Officials Who Make Land Use Decisions By Ted Hunter Get Yours Today! or order at www. SoundLawCenter.com