Wed 11 Feb, 2009
Nine Golden Rules of Defensible Decision-Making
Comments (2) Filed under: General, Law, The Zoning GuruTags: Public Speaking, Regulatory Takings
So, you’re a planning commissioner and the worst has happened…
Some applicant for approval of a (probably controversial) site plan or special-conditional use or planned unit development or rezoning doesn’t appreciate the commission’s decision and has filed a lawsuit against the town, the planning commission, and you personally.
The Zoning Guru is sorry to say that it is true – a planning commissioner may be named as a defendant in land use or development litigation against a community if the individual participated in the decision-making process. Now before all of our citizen-volunteers reading this dash off to pen their resignation letters, please read on…
It is extremely rare that personal liability is imposed, as it must first be proven that the planning commissioner acted maliciously or was grossly negligent. Otherwise, the commissioner should be dismissed from such cases on the grounds of governmental immunity.
The Zoning Guru recommends that planning commissioners always follow the Nine Golden Rules of Defensible Land-Use Decision-Making…
- ALWAYS strive to make informed decisions based upon the best information available. It is better to take extra time to get the information you need than to make a hasty or ill-informed choice.
- NEVER exceed the scope and authority you have been granted as a planning commissioner. Act in good faith, and if you are unsure of the boundaries of your office or your authority in a given circumstance – ask before you act.
- ALWAYS deliberate and discuss agenda items exclusively during the public meeting. All deliberations should be in the open. Don’t hold private conferences prior to the meeting, and be careful with email correspondence that involves the applicant, neighbors, and fellow commissioners.
- NEVER hesitate to ask for advice from a land use professional. Technical assistance (legal, planning, zoning, engineering, environmental, etc.) should always be made available to the planning commission when needed.
- ALWAYS document decisions through detailed motions that include the commission’s relevant findings of fact and conclusions. The absence of such documentation severely diminishes the legal defensibility of the commission’s action.
- NEVER take an action that would have the effect of completely excluding a lawful land use, or that would impose unreasonable conditions on an approval. Conditions of approval should be related to the proposed use or site improvements, necessary to ensure compliance with ordinance requirements, and in accordance with applicable laws.
- ALWAYS go back and correct yourself when a procedural error is found to have been made. Upon identifying an error, the planning commission should immediately re-start the process with the deficiencies corrected. It is better to hold a “do-over” public hearing than to lose on a technicality in court.
- NEVER take an action that would have the effect of violating the constitutional rights of an applicant or another citizen. Those that typically come up as part of land use litigation include freedom of speech and expression, the right to free exercise of religion, the right to due process of law, and a prohibition on the “taking” of property for public use without just compensation.
- ALWAYS express your opinions as a commissioner, but keep the discussion and deliberation focused on the specifics of the application under consideration. Avoid personal issues.
If you would like to know more about this topic, leave a comment below or email the Zoning Guru here.
Thanks to the MTA for Several Fine Summer Evenings! - Building Place says:
[...] and all four venues were top notch. It was a pleasure to have the opportunity to present our “Nine Golden Rules for Defensible Decision-making” workshop, and to have a few extra minutes to talk about what Planning Commissions should be [...]
Loren Wooding says:
What you can’t communicate runs your life.