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Issues in Land Use Law & Zoning

Legal Issues Facing Planning Commissions & Zoning Boards

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Carolyn Baldwin: One of the most common problems I’ve seen commissions encounter is to issue decisions without proper findings. What often happens is that a developer comes in and makes a lot of representations upon which the planning board relies in approving a plan, but that never get out of the minutes and into findings or conditions of approval. Because of that, things can come back to haunt the commission.

Representations are made such as, “Oh, of course we’ll do this,” and “Of course we’ll do that.” Unless those conditions are set forth very specifically in the approval, there’s nothing to nail the developer down with. And he says, “Oh, well, I didn’t really intend to do that.” You’ve got problems if you end up in court, and try to say, “This was one of the conditions of approval and it wasn’t met; therefore, he’s got to do it or we’re going to pull his bond,” or whatever the case may be. I think that’s one of the problems that I’ve seen loom up most often. The same thing happens when a commission denies something, but fails to make proper findings….

Richard Lehmann: The problem I’m most worried about these days is planning commissions pre-judging matters coming before them. It’s a difficult situation because planning commissioners have opinions on things — some have very strong opinions — and some are members of various neighborhood or citizen organizations. That’s, in part, how they got to be planning commissioners. People at a commission hearing will also demand that the planning commission find a way to kill a project. I’ve heard that kind of testimony twice in just the past two weeks. At one of the hearings (I was serving as counsel to the planning commission), a member of the audience said it was my duty to find a way to kill the project, and make it stick. …

Neil Lindberg: Another frequent problem I’ve encountered is when the applicant gets an indication that the application isn’t going to be accepted as it’s proposed, and in the middle of the review process the application is tweaked a little to make it conform to what the applicant perceives is wanted, but also is something he or she can live with. So you can get continuous modifications to an original application. It is very difficult for the public to keep up with the changes.

Carolyn Baldwin: I agree with you, it’s very unfair when neither the planning board nor the public have a chance to review anything until the night of a meeting, and you try to figure out what it’s all about and how you should respond to it. We’ve had some developers whose favorite trick is to come in with a plan 15 days in advance, as required by our state statute, and then march into the hearing and say, “Oh well, those plans aren’t good anymore. Here’s a whole new set.” I advise planning boards to say, “Uh-uh, we either decide on what you submitted 15 days in advance like you were supposed to, or come back when you do it right.”

Neil Lindberg: Right, withdraw and start over. It’s very hard in some small towns for that to happen, but I agree with you, that’s what should happen.

I’ve also seen staff reports delayed until the day of the meeting. The planning commission hasn’t had a chance to read them, so staff makes an oral report and says, “Well, we’ve been working with the applicant, and we suggest that this be approved because it conforms to X/Y/Z.” I think the time frame in which that occurs should be slowed down a little so the planning commissioners, and the public, can keep up with the changes that may be occurring to a project. …

End of excerpt

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