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“The history of liberty has largely been the history of the observance of procedural safeguards.” McNabb v. United States, 318 U.S. 332 (1943)

Readers of the Planning Commissioners Journal know that citizen participation as a member of a planning commission, zoning board of appeals, or historic preservation board requires an understanding of planning law. Most commission and board members are familiar with complex concepts like “takings” and “arbitrary and capricious actions” under the U.S. and State Constitutions. Indeed, those of you who have an abiding interest in planning law may actually weave cases like Dolan and Lucas into a relatively normal conversation!

This article adds a necessary component to this lexicon by examining the important but often overlooked concept of “procedural due process,” mandating constitutional requirements in the day-to-day operations of bodies which make decisions concerning the use of land.

We all should have at least some understanding of procedural due process because it is intended to ensure that government acts in a fundamentally fair and reasonable manner when making decisions that affect private individuals. Broad concepts like “fundamental fairness” frequently become the basis for challenging land use decisions. This article is intended to help commission members learn what the law expects, in practical terms.

The article begins by examining the meaning of procedural due process and when it applies. In the second part, it covers specific acts that ensure fairness: adequate notice; an unbiased decision-maker; an opportunity to be heard; the right to present evidence; prompt decision-making; a record of the proceeding; and a written decision based on the record and supported by reasons and findings of fact.

What Is Procedural Due Process and When Does It Apply?

The Fifth Amendment to the U. S. Constitution provides that “No person … shall … be deprived of property, without due process of law.” This mandate, known as the “Due Process Clause,” applies to the state governments through the Fourteenth Amendment, which provides in pertinent part: “… nor shall any state deprive any person of life, liberty, or property without due process of law.” Over time, this safeguard (applied to local governments through “Dillon’s Rule,” which provides that local governments have only so much power as the state may grant) has come to protect individuals from arbitrary governmental action, no matter what level of government is acting.

The Due Process Clause plays a unique dual role in land use law because courts have determined that it possesses two distinct components — substantive and procedural. See Sidebar, Substantive v. Procedural Due Process. The hallmark of the “procedural” aspect, the focus of this article, is the right to a fair and open process. Sounds simple enough, but as with most areas involving constitutional law, complexities lurk behind the obvious. …

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