How to Improve Land Use DecisionMaking COUNCIL OF

How to Improve Land Use Decision-Making COUNCIL OF GOVERNMENTS OF CENTRAL NAUGATUCK VALLEY JANUARY 29, 2007 © 2007 Robinson & Cole LLP

TOPICS Procedural due process Fundamental fairness What’s required? Discussion © 2007 Robinson & Cole LLP

DUE PROCESS 5 th Amendment: “No person shall. . . be deprived of property, without due process of law” 14 th Amendment: “. . . nor shall any state deprive any person of life, liberty, or property without due process of law” © 2007 Robinson & Cole LLP

DUE PROCESS Protection against arbitrary government decision-making Substantive n Rational regulations tied to governmental purpose Procedural n Decisions made in a fair manner © 2007 Robinson & Cole LLP

FUNDAMENTAL FAIRNESS Common-law right in administrative hearings, even in cases where no constitutional due process right exists © 2007 Robinson & Cole LLP

FUNDAMENTAL FAIRNESS Due notice of hearing to allow intelligent preparation No one deprived right to produce evidence No one deprived right of crossexamination © 2007 Robinson & Cole LLP

ROUTINE PROBLEMS Unruly participants Room conditions Proceeding too long © 2007 Robinson & Cole LLP

INSTITUTIONAL MEMORY How to handle recurring situations Scripted notice, posting, etc. Policy on continuances © 2007 Robinson & Cole LLP

WHAT’S REQUIRED? Notice Opportunity to be heard Cross-examination © 2007 Robinson & Cole LLP

WHAT’S REQUIRED? Findings of fact Unbiased decision-maker Prompt decision-making © 2007 Robinson & Cole LLP

WHAT’S REQUIRED? Create a record Written decision supported by reasons and findings of fact © 2007 Robinson & Cole LLP

FORMALITY Keep it informal Publish agenda and stick to it Tell everyone up front Rules of procedure Treat applicants as you would expect to be treated © 2007 Robinson & Cole LLP

NOTICE Local ordinances Who should get it? n n Applicant Neighbors Those who ask in advance Intervenors © 2007 Robinson & Cole LLP

OPPORTUNITY TO BE HEARD Fair and reasonable opportunity to present case Does not mean unlimited time © 2007 Robinson & Cole LLP

CROSS-EXAMINATION Rebuttal Can be direct or through Commission © 2007 Robinson & Cole LLP

FINDINGS OF FACT Basis for decision Formality instills discipline Arbitrary and capricious decision © 2007 Robinson & Cole LLP

UNBIASED DECISION-MAKER Predisposition No conflict of interest No appearance of impropriety No ex parte contacts Disclosure © 2007 Robinson & Cole LLP

PROMPT DECISION-MAKING Abide by Statutes Reasonable time otherwise Land development is time-sensitive © 2007 Robinson & Cole LLP

CREATE A RECORD What is a record? n n Testimony Documents w Staff reports w Generated by applicants w Brought in by citizens © 2007 Robinson & Cole LLP

WRITTEN DECISION Avoids memory lapse Support with record Easy to understand Furnished to all interested parties Timing © 2007 Robinson & Cole LLP

DEMONSTRATIVE EVIDENCE IS ESSENTIAL Subject Matter Requires Visual Aids What is Demonstrative Evidence? © 2007 Robinson & Cole LLP

EXAMPLES Site Plans Maps Architectural Renderings Building Elevations © 2007 Robinson & Cole LLP

Photographs Slides Movies, Videotapes Line of Sight Drawings © 2007 Robinson & Cole LLP

Models Floor Plans Diagrams Audio Recordings © 2007 Robinson & Cole LLP

EMPLOYING THE EVIDENCE REQUIRES Strategic Planning Selection and Use Requires Evaluation of Objective n n Review Submission Requirements Identify Complex or Confusing Issues Highlight Sensitive Issues Determine Budget © 2007 Robinson & Cole LLP

Identify Proper Team Member to Create Exhibits Ensure That Individual Who Will Use the Exhibit Participates in its Preparation Require Exhibits to be Produced for Review of Counsel Well in Advance © 2007 Robinson & Cole LLP

Make Sure Hearing Location Will Accommodate the Exhibits Bring All Support Equipment © 2007 Robinson & Cole LLP

PRESENTATION OF THE EVIDENCE Identify Exhibit and Lay Foundation for Introduction into Evidence Always Confirm That Exhibits Have Been Marked and Formally Received into Evidence © 2007 Robinson & Cole LLP

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 © 2007 Robinson & Cole LLP

OTHER IMPORTANT EVIDENTIARY CONCERNS Legal Relevance Authentication or Identification Self-authentication © 2007 Robinson & Cole LLP

Contents of Writings, Recordings and Photographs While 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