© 2007 Robinson & Cole LLP How to Improve Land Use Decision-Making COUNCIL OF GOVERNMENTS OF...

© 2007 Robinson & Cole LLP

How to Improve Land Use Decision-Making

COUNCIL OF GOVERNMENTS OF CENTRAL NAUGATUCK VALLEY

JANUARY 29, 2007


TOPICS

Procedural due processFundamental fairnessWhat’s required?Discussion


DUE PROCESS

5th Amendment: “No person shall . . . be deprived of property, without due process of law”14th Amendment: “. . . nor shall any state deprive any person of life, liberty, or property without due process of law”


DUE PROCESS

Protection against arbitrary government decision-makingSubstantive Rational regulations tied to governmental

purpose

Procedural Decisions made in a fair manner


FUNDAMENTAL FAIRNESS

Common-law right in administrative hearings, even in cases where no constitutional due process right exists


FUNDAMENTAL FAIRNESS

Due notice of hearing to allow intelligent preparationNo one deprived right to produce evidenceNo one deprived right of cross-examination


ROUTINE PROBLEMS

Unruly participantsRoom conditionsProceeding too long


INSTITUTIONAL MEMORY

How to handle recurring situationsScripted notice, posting, etc.Policy on continuances


WHAT’S REQUIRED?

NoticeOpportunity to be heardCross-examination


WHAT’S REQUIRED?

Findings of factUnbiased decision-makerPrompt decision-making


WHAT’S REQUIRED?

Create a recordWritten decision supported by reasons and findings of fact


FORMALITY

Keep it informalPublish agenda and stick to itTell everyone up frontRules of procedureTreat applicants as you would expect to be treated


NOTICE

Local ordinancesWho should get it? Applicant Neighbors Those who ask in advance Intervenors


OPPORTUNITY TO BE HEARD

Fair and reasonable opportunity to present caseDoes not mean unlimited time


CROSS-EXAMINATION

Rebuttal Can be direct or through Commission


FINDINGS OF FACT

Basis for decisionFormality instills disciplineArbitrary and capricious decision


UNBIASED DECISION-MAKER

PredispositionNo conflict of interestNo appearance of improprietyNo ex parte contactsDisclosure


PROMPT DECISION-MAKING

Abide by StatutesReasonable time otherwiseLand development is time-sensitive


CREATE A RECORD

What is a record? Testimony Documents

Staff reports Generated by applicants Brought in by citizens


WRITTEN DECISION

Avoids memory lapseSupport with recordEasy to understandFurnished to all interested partiesTiming


DEMONSTRATIVE EVIDENCE IS ESSENTIAL

Subject Matter Requires Visual AidsWhat is Demonstrative Evidence?


EXAMPLES

Site PlansMapsArchitectural RenderingsBuilding Elevations


PhotographsSlidesMovies, VideotapesLine of Sight Drawings


ModelsFloor PlansDiagramsAudio Recordings


EMPLOYING THE EVIDENCE REQUIRES

Strategic PlanningSelection and Use Requires Evaluation of Objective Review Submission Requirements Identify Complex or Confusing Issues Highlight Sensitive Issues Determine Budget


Identify Proper Team Member to Create ExhibitsEnsure That Individual Who Will Use the Exhibit Participates in its PreparationRequire Exhibits to be Produced for Review of Counsel Well in Advance


Make Sure Hearing Location Will Accommodate the ExhibitsBring All Support Equipment


PRESENTATION OF THE EVIDENCE

Identify Exhibit and Lay Foundation for Introduction into EvidenceAlways Confirm That Exhibits Have Been Marked and Formally Received into Evidence


Attempt to Have All Exhibits Marked Prior to Start of Hearing Attempt to Get Exhibits Admitted into Evidence by Stipulation of all Parties to the Hearing


OTHER IMPORTANT EVIDENTIARY CONCERNS

Legal RelevanceAuthentication or IdentificationSelf-authentication


Contents of Writings, Recordings and PhotographsWhile the Rules of Evidence do not Technically Apply in Most Administrative Hearings, It is Important to Build a Strong Record That Will Survive Any Appeal

© 2007 Robinson & Cole LLP How to Improve Land Use Decision-Making COUNCIL OF GOVERNMENTS OF...

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