Introductory Note: Please be sure to consult with your municipality's attorney about the issues covered in this article, especially as planning, zoning, open meeting, and public records laws can differ significantly from state to state.
When an application is submitted for a use that residents in a neighborhood strongly oppose, the commission suddenly sees dozens, sometimes hundreds, flocking to its meeting.
We -- and probably you too -- have seen this scenario many times, where a municipality has one or two people who regularly attend planning commission meetings. But when an application is submitted for a use that residents in a neighborhood strongly oppose, the commission suddenly sees dozens, sometimes hundreds, flocking to its meeting.
Dealing with “not in my back yard” zoning issues can be challenging for many municipalities. Whether it is wind turbines, gravel or sand mines, composting operations, high-density subdivisions, apartments, or landfills, each municipality should have a process or plan in place to deal with handling these often controversial requests. Faced with a request to approve an unpopular land use proposal, each municipality should consider the following:
1. Understand the Law. If a new or challenging issue arises, make sure your municipality understands the current standard to review the request at hand. Depending on the issue, there may be several statutes or court decisions that govern the board, commission, or council’s decision. Be aware of specific laws governing the request at issue.
2. Ordinances. Given the many changes in the law over the last decade, it is hard to keep current. It can be just as hard to keep municipal ordinances compliant with changes in the law. So when faced with a hugely unpopular land use proposal, municipalities should – before diving into public meetings on the request -- consider whether their ordinances comply with current state law or require updating. The municipality should consult with its planner and attorney to make sure the relevant ordinance provisions are up-to-date, that it is complying with all relevant deadlines, and that it considers all applicable laws when making a decision or recommendation.
3. Fee Schedules. Handling certain zoning requests can be very expensive and time-consuming. The municipality may be required to hold special meetings and hire experts. And certain zoning requests can often consume a large portion of municipality’s staff time to handle the non-routine aspects that come along with the requests. The municipality should make sure its fee schedules are up-to-date, allowing it to charge or recoup expenses as permitted.
4. Alternative Meeting Location. Unpopular or controversial requests tend to increase the number of people who attend meetings and want to comment. If you know large groups will likely attend the meeting and that your municipal hall is not adequate to accommodate large groups, consider whether to arrange for an alternative meeting location as the law allows.
While not going as far as requiring a municipality to adjourn a meeting to a larger room, some authorities have opined that a public body must exercise “reasonable efforts” to accommodate members of the public who wish to attend, including reconvening in a larger room if it is practical. 1 Certainly, a municipality would be in a better position to make sure the public had the “opportunity to be heard” if it arranged in advance to accommodate larger audiences.
5. Experts. Many zoning requests involve complicated issues for which a municipality should strongly consider retaining outside experts beyond a planner – such as an ecologist, engineer, attorney, hydro-geologist, or other specialist. These experts are critical to assist the municipality in making an informed decision about the request. Though not necessarily critical to have hired such experts in advance, a municipality would do well to have a “short list” of each of those experts ready upon receipt of a controversial application.
6. Freedom of Information Act (FOIA) & Copyright Issues. Along with an increased number of members attending meetings, municipalities that receive a controversial application often see a sharp rise in the number of FOIA (in a number of states referred to as Public Records Act) requests submitted. Requests often seek specific documents, such as a particular part of the initial application documents, or broad categories of documents, such as all e-mails the municipality may have received regarding the request.
A municipality should be ready to respond timely to the FOIA requests and have its corresponding FOIA fee schedule already in place. Relatedly, when responding to FOIA requests, be sure to consider whether applicable federal copyright laws dictate a certain response (such as, e.g., not making a copy of a document that has copyright rights).
7. Follow the Proper Procedure. Though some overlook their importance, following the procedural requirements of the applicable Open Meetings Act (“OMA”) and zoning enabling laws could save your municipality from unnecessary, costly litigation.
Often when the applicant, public, or other interested parties do not like the decision, they attempt to collaterally attack it, alleging there were problems with the process.
Often when the applicant, public, or other interested parties do not like the decision, they attempt to collaterally attack it, alleging there were problems with the process. To preempt such an attack, make sure that your municipality provides the notice the applicable zoning laws require for a particular request and gives the notice the OMA requires for regular or special meetings.
Also, avoid making some common mistakes that could result in OMA violation claims. For example, many states' open meeting laws provide that the right to attend a meeting of a public body includes the right to tape-record or videotape the meeting. 2 Do not ask a member of the public to turn off a video camera.
Further, OMA laws typically gives the public a right to address the public body. Be sure to understand how courts in your state have construed that right to address. A municipality should act accordingly while handling a controversial request.
At one time or another, most public bodies face issues that result in a great deal of public outcry, increased attendance at meetings, and additional scrutiny of the municipality’s ordinances and processes. In those situations, the age-old axiom can often unfortunately ring true: “by failing to prepare, you are preparing to fail.” In other words, preparing in advance is very helpful in successfully navigating “not in my backyard” zoning requests.
Ron Richards is a partner in the Lansing, Michigan office of Foster, Swift, Collins & Smith, P.C. He has practiced municipal law for over 10 years, and regularly advises municipal clients on a variety of municipal matters, including handling controversial zoning decisions.