Planner’s Toolbox: Due Process in Land Use Hearings
This article was first published in the July/August 2008 issue of WP
With the grip of COVID slowly loosening in our country, in-person hearings are staging a comeback in parts of our region. Due process is one of the most important aspects of the land use approval process and one that planners can’t pay too much attention to.
By David Mathews
Planners in the WPR region, like planners everywhere, spend lots of time in zoning and subdivision hearings, also known as quasi-judicial proceedings. The proper conduct of these proceedings is a crucial part of the planning process for local governments. If you get these wrong, the consequences for your agency can be disastrous and expensive.
New Mexico Appellate Courts have set a clear standard for the conduct of zoning and subdivision hearings in our state. Case law in New Mexico has established minimum due process standards for these hearings to aid local governments. The New Mexico Rules of Civil Procedure have established the standard of review for courts for land use decisions. This article will not attempt to address notice requirements, although notice is the most fundamental requirement of due process.
In our state the minimum due process standard is limited to three absolute requirements: 1) the testimony before the local government must be under oath; 2) the applicant and opponent have the right to cross-examination; and 3) no new witnesses may be added after the first hearing. Cross-examination has been interpreted to mean the right to ask questions of the other party. It is not formal cross-examination that one would see in a court room. All interested parties have the right to attend the land use hearings and express an opinion. The New Mexico courts have uniformly held that many of the opinions expressed do not rise to the level of admissible evidence, however. Opposition to a land use application must be based on specific facts, not opinions of the “evil” a use might cause or speculation of what could result from the use. To win at a land use hearing, the opponent should be prepared to present traffic studies or hydrological reports or other very specific evidence of why the proposal should be denied. Simple opposition to the use, or the “not in my back yard” argument, will fail.
When a land use case is appealed to state court, the court may only determine if the local government’s decision is supported by the evidence. The court cannot substitute its judgment for the local government and cannot determine if the local government made a wise decision. The court can only look at the record from the local government and decide if there is evidence in the record to support the decision. If there is not, the case is sent back to the local government for a new hearing. Therefore, if the local government’s hearing was conducted properly, it is very difficult for an opponent of the decision to prevail in court. The court accepts new no testimony or documents. The local government’s attorney and the opposing counsel are limited to oral arguments and those arguments are confined to all the documents upon which the local government based its decision.
I tried to learn how other states in the Western Planner area conduct hearings. For example, I learned Oregon requires “one full scale evidentiary public hearing,” which I suspect is similar to the New Mexico hearing. Washington requires a fair and impartial hearing in which members of the public can express their views. Other states require a “judicial-like” process before the local government. Still other states allow zoning by referendum, but New Mexico is not a referendum state in any regard. I could not ascertain precisely what constitutes a fair and impartial hearing in some states, although I am sure each of our states has established standards. I do not postulate the New Mexico practice is superior to that of the other states, but it is extremely precise.
A difficult question facing local governments is how much time to allow the opponents to speak. New Mexico courts have held five- and ten-minute limitations per speaker are acceptable. Sandoval County takes a practical approach. The County allows the opponents the same amount of time as the applicant. If an attorney is representing the opponents, the County generally allows the attorney more time than individual opponents. Often, hearings move more quickly with an attorney since the attorney is generally representing a group of opponents. If the speaker exceeds the time limitation, the County does not cut him/her off, but do ask the speaker to try to conclude quickly. County officials often request that groups of opponents choose a few speakers to represent the group, but do not insist they do so. Reasonable time limitations have to be based upon the complexity of the issue. If I have the opportunity, I suggest to opponents that a few strong speakers are more helpful than dozens of opponents who essentially repeat the same argument. This is a continuing problem in hearings and so suggestions from WP readers on this issue are definitely welcome. Besides that, don’t we all want to get out of a hearing before 11 P.M. if we can?
Original About Author from July/August 2008
Presently the Sandoval County Attorney in Bernalillo, New Mexico, David Mathews is a graduate of the University of New Mexico’s School of Law. Prior to arriving in New Mexico, he earned a B.S. in Journalism and English at Ohio’s Bowling Green State University. In addition to Sandoval County, he has represented a total of 17 local governments in New Mexico since 1982. Each of those governments has been faced with significant growth, zoning, subdivision, or environmental issues. A long-time WP subscriber, he has appeared as an expert witness on land use matters in New Mexico courts and has practiced in both state and federal courts, including the 10th Circuit Court of Appeals, primarily on zoning issues. As is common in The Western Planner states, many of the cases involved issues never before decided in New Mexico.