This article targets the general practitioner who is called either to assist clients in seeking local government development approvals or in opposing such approvals. Often times, attorneys are approached on the eve of a critical public hearing to urge support for or object to a development order. Many times, clients wait until the last minute to seek legal counsel to assist in what they perceive as a local political matter. What clients may not anticipate are the vagaries of local collegial boards or the impact of well-organized or invested opposition. They may also discount the expense and uncertainty of litigation that may result from a development order being issued or denied. The purpose of this article is to arm the general practitioner with the tools demanded by this unique legal arena. The emphasis is on prevention because the outcome is often dictated by the presentation of evidence in the local government proceeding.
Expectations Associated with Local Government Boards
Securing land use approvals begins long before an application is filed or reviewed by staff. In advance of applying for local development orders, applicants and their lawyers must familiarize themselves with the filing processes, procedures, and substantive standards applicable to the application. Processes among local governments vary; one must be familiar with the relevant government's standards before proceeding with a particular project.
Once advised on the process, the lawyer should ensure that staff properly reviews the application. This review may entail analysis of staff work product and notices throughout the process to ensure completeness with both procedural and substantive criteria. Counsel should also scrutinize the work product of retained consultants as they may not appreciate the need for strict compliance with the legal requirements. Any errors in the review process ultimately harm the client, not the local government.
When dealing with staff, the attorney must remember that ethics, credibility, and integrity are paramount. While clients may become frustrated with the development review process, it is important that the attorney and client interact with local government staff honestly and with proper decorum. Threatening a lawsuit or suggesting that one will go over a reviewer's head is rarely appropriate and, more often than not, unproductive. In addition, an attorney seeking a land use approval must remember that he or she may be called in the future to work with staff on a different development, and the attorney's dealings with staff on other projects may impact his or her ability to achieve a client's goals. Being professional with staff at all times benefits the attorney's current and future clients.
* Types of Proceeding: Know the Rules--There are two (1) general types of land use approval proceedings before a local government: quasi-legislative and quasi-judicial. (2) Quasi-legislative decisions are generally described as those in which the local government is tasked with formulating policy rather than applying specific rules to a particular situation. (3) A local government's approval or denial of an issue in its quasi-legislative capacity is typically subject to a fairly debatable standard of review. (4) Fairly debatable means that the government's action must be upheld if reasonable minds could differ as to the propriety of the decision reached. (5) Decisions subject to the fairly debatable standard of review need only be rationally related to a legitimate public purpose, such as the health, safety, and welfare of the public, to be valid. (6)
Quasi-judicial decisions involve the application of policy to a specific development application. (7) Quasi-judicial hearings are to be conducted with more formality than a legislative public hearing and are akin to informal trials. Quasi-judicial decisions are subject to a certiorari standard of review on appeal. The distinction between the two types of proceedings impacts the process that the applicant is due, the relative discretion the local government has in approving or denying the requested action, and the proper method for appealing an adverse decision.
* Know What Process is Due--Understanding whether a decision is quasi-judicial or quasi-legislative is critical, as procedural due process rights are enhanced in quasi judicial proceedings and the standards of review differ substantially. For example, quasi-legislative hearings require little process. Indeed, allowing only 10 minutes for members of the public to speak on quasi-legislative matters comports with due process. (8) Moreover, limitations on ex parte communications with the decisionmakers that apply to quasi-judicial hearings do not apply to legislative determinations. There is no right in quasi-legislative hearings to cross-examine witnesses. (9)
By contrast, in quasi-judicial hearings, parties are entitled--as a matter of due process--to cross-examine witnesses, present evidence, demand that witnesses testify under oath, and demand a decision that is based on a correct application of the law and competent substantial evidence in the record. (10) Recent case law provides that limiting parties to only eight minutes to present positions regarding a zoning resolution violates procedural due process under the circumstances of that case. (11)
In quasi judicial proceedings, participants must be careful to avoid contacting the members of the deciding panel prior to the hearing to urge a particular outcome. (12) If ex parte contacts have been made (which is more often than not the case), they must be disclosed at the quasi judicial hearing or they are presumed prejudicial to the outcome and will likely result in a finding of a violation of procedural due process. (13) The presumption can only be overcome if the local government--not the applicant--demonstrates that the contact was not prejudicial following a multifactor, fact-intensive analysis. (14)
* Know the Applicable Legal Burden--The discretion afforded decisions on quasi-legislative matters is broad, and decisions need only satisfy the "fairly debatable" standard. Given this broad discretion, only decisions that are arbitrary and capricious or illegal are subject to serious legal challenge. (15)
Quasi-judicial decisions are more involved. It is beyond the scope of this article to describe the myriad criteria that may apply to a particular application. The general rule, however, requires the applicant (not local government staff) to demonstrate compliance with the local government's code of ordinances, land development regulations, and comprehensive plan.
For example, to obtain a site-specific rezoning, the applicant must demonstrate that the rezoning is consistent with the local government's comprehensive plan and all procedural requirements of the zoning ordinance; if the initial burden is met, the burden shifts to the local government to demonstrate that maintaining the existing zoning on the property serves a legitimate public purpose or that the decision denying the rezoning is not arbitrary...