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How to Improve Land Use Decision-Making
COUNCIL OF GOVERNMENTS OF CENTRAL NAUGATUCK VALLEY
JANUARY 29, 2007
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TOPICS
Procedural due processFundamental fairnessWhat’s required?Discussion
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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”
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DUE PROCESS
Protection against arbitrary government decision-makingSubstantive Rational regulations tied to governmental
purpose
Procedural Decisions made in a fair manner
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FUNDAMENTAL FAIRNESS
Common-law right in administrative hearings, even in cases where no constitutional due process right exists
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FUNDAMENTAL FAIRNESS
Due notice of hearing to allow intelligent preparationNo one deprived right to produce evidenceNo one deprived right of cross-examination
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INSTITUTIONAL MEMORY
How to handle recurring situationsScripted notice, posting, etc.Policy on continuances
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WHAT’S REQUIRED?
Findings of factUnbiased decision-makerPrompt decision-making
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WHAT’S REQUIRED?
Create a recordWritten decision supported by reasons and findings of fact
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FORMALITY
Keep it informalPublish agenda and stick to itTell everyone up frontRules of procedureTreat applicants as you would expect to be treated
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NOTICE
Local ordinancesWho should get it? Applicant Neighbors Those who ask in advance Intervenors
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OPPORTUNITY TO BE HEARD
Fair and reasonable opportunity to present caseDoes not mean unlimited time
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FINDINGS OF FACT
Basis for decisionFormality instills disciplineArbitrary and capricious decision
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UNBIASED DECISION-MAKER
PredispositionNo conflict of interestNo appearance of improprietyNo ex parte contactsDisclosure
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PROMPT DECISION-MAKING
Abide by StatutesReasonable time otherwiseLand development is time-sensitive
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CREATE A RECORD
What is a record? Testimony Documents
Staff reports Generated by applicants Brought in by citizens
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WRITTEN DECISION
Avoids memory lapseSupport with recordEasy to understandFurnished to all interested partiesTiming
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DEMONSTRATIVE EVIDENCE IS ESSENTIAL
Subject Matter Requires Visual AidsWhat is Demonstrative Evidence?
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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
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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
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Make Sure Hearing Location Will Accommodate the ExhibitsBring All Support Equipment
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PRESENTATION OF THE EVIDENCE
Identify Exhibit and Lay Foundation for Introduction into EvidenceAlways Confirm That Exhibits Have Been Marked and Formally Received into Evidence
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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
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OTHER IMPORTANT EVIDENTIARY CONCERNS
Legal RelevanceAuthentication or IdentificationSelf-authentication