Jeff 2021-2

Part #1 of my series on the U.S. Constitution and land use touched upon the constitutionality of municipal zoning regulations.  It is one thing to have regulations.  It is another thing to use them.  It is this latter item – how regulations are used – that generates a lot of legal push and pull, and court cases.

Due process is a major constitutional principle encountered by a property owner who files a land use application.  We all expect that fairness be afforded to us by others.  This too is the case for an individual or business coming before town government asking to do something with his/her land or property.  The U.S. Constitution’s Fifth and Fourteenth Amendments speak to this: “No person shall … be deprived of life, liberty, or property, without due process of law …” (Fifth Amendment) and “nor shall any State deprive any person of life, liberty, or property, without due process of law …” (Fourteenth Amendment). 

One of the things you should see when your town’s planning and zoning commission meets to review an application is the proper fulfillment of due process.  This requires a multi-faceted approach.

There must be fairness of the proceedings.  A commission must follow all applicable laws regarding when are how notices are announced, and who receives them.  People’s rights to be heard on a subject cannot be violated.  Secret or closed meetings, other than for legitimate executive session reasons, are anathema to proper public decision-making.  A commission’s decisions may adversely affect, change, limit, or deprive a property owner of his or her use of property.  A neighboring property owner may be adversely affected.  People may disagree with a commission’s decisions.  If someone wants to speak on an item, then they should be allowed to do so, following accepted rules of decorum and parliamentary procedure.  However, once cannot make someone attend a meeting or speak.  If a commission does not hear from people within an established period of time, then a commission’s work does come to a standstill waiting for people.  This would cause an unnecessary delay.  Due process is a balancing act between giving people opportunities to be heard and affording an applicant opportunities to have his or her application processed.

There must be fairness when an individual commissioner is involved in a decision.  A commissioner who has a conflict of interest is required to recuse himself or herself.  To do otherwise causes a major bias problem, putting into question the validity of a commission’s decision.

There must be fairness of the commission’s timeline for taking action and making decisions.  State statute is clear as to what deadlines a planning and zoning commission has regarding when to hold a meeting once a land use application is accepted, for how long to conduct a review, and for how much time to take before rendering a decision.  In fact, state statute specifically says that if a decision is not reached by a certain deadline, then the default decision is that the application is approved.  This prevents a commission from ‘sitting on” an application indefinitely, thereby killing the application without taking a review or making a decision.

There must be fairness in the regulations.  A commission cannot construct regulations that are obtuse, thereby making the regulations so difficult to understand that no one can follow them.  Although there needs to be flexibility in the regulations in order to be applicable to an array of circumstances throughout a community and over the course of time, the courts have recognized that regulations cannot be so vague such that an ordinary person cannot make sense of them. Additionally, regulations cannot be whimsical in nature without a solid reason for their existence.  This is why regulations need to be grounded in the constitutional underpinnings of land use rules – promoting public health, safety, and welfare. 

There must be fairness in how the regulations are used.  All land use regulations must be grounded in your town’s legal and legitimate authority to regulate land in order to advance stated recognized public goals.  With authority comes responsibility to use the authority properly, not for arbitrary and special interest reasons, and not in an inconsistent manner.  To do otherwise can improperly limit or deprive a property owner of benefit from the property’s use, unfairly shift benefit to someone else, or outright provide a special benefit to an applicant.  There are two corollaries to this.  First, if an application meets a town’s zoning regulations, then a commission cannot try to rework the regulations to change or to deny the application, unless a factor exists supported by the regulations that requires an extra condition be added to the application if approved.  Second, if an application is incomplete or if it does not meet the regulations, then a commission cannot try to fit the application to the regulations in order to approve it.  These two scenarios are akin to trying to fit a square peg into a round hole.  It is obvious to anyone that it just does not work.

The pitfalls of violating due process by either a purposeful action or by an unintended consequence are real.  When I deal with due process as a planning and zoning commissioner and as a Chair of Woodstock’s commission, I am mindful of three rules.  First is the Golden Rule of doing unto others what you would want them to do unto you.  I have been a land use applicant, so I know what it is like to come before a commission.  Second is the commonsense rule.  This is self-explanatory, but not universally practiced.  Third is the community rule.  Regulations apply equally to the general public and to commissioners (who are members of the public).  If you create a burdensome rule, then you have to bear its adverse effect just like everyone else.

Dr. Jeffrey A. Gordon is Chairman of Woodstock’s Planning and Zoning Commission.  This article neither reflects any official statement of nor any specific work being done by the Commission.  Check out

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