On April 25, I posted on this blog about public meetings and hearings, the issues with the way they are conducted these days, and whether they are actually helping or hurting in the overall process of land use administration and policy-making.  In my May 6 post, I indicated that I have recently found some interesting research on this topic, and that I would share.  Well, it’s sharing time!

The first piece I want to write about and get you all to take a serious look at is one by Yale Law School Clinical Law Professor Anika Singh Lemar (what does clinical law professor mean?  According to Wikipedia, it is someone who is a member of the profession who is engaged to provide practical (clinical) instruction of students, in this case, the law.  I guess a few years ago I could have been identified as a clinical planning associate at the University of Utah planning program, as I taught a class about the politics of planning!  But I digress here…). She teaches the Community and Economic Development clinic at the law school, which provides assistance to housing developers, financial institutions, farms and farmers’ markets, fair housing advocates, and neighborhood associations.  She is also the Editor-in-Chief of the American Bar Association’s Journal of Affordable Housing & Community Development Law.

Her article, titled Overparticipation: Designing Effective Land Use Public Processes, was published last year in the Fordham Law Review.

Lemar describes in her piece many of the same problems we’re all familiar with regarding the public participation processes in land use meetings.  She says that the common refrain heard from academics and professionals alike is that these public participation activities are needed and necessary to ensure the involvement and buy-in of the community citizens, in part to counteract the malevolent interests of those who are only interested in building to make as much money as possible, usually against the community interest.  However, Lemar turns this notion on its head when she notes:

In fact, local control, community empowerment, and public participation are among the building blocks of residential segregation. It has long been the case that there is nothing inherently inclusionary about American notions of “community” or “public participation.”

How … can earnest cries for public participation to empower poor and marginalized people be squared with the use of the same tool to exclude poor people and people of color from tony, well-resourced neighborhoods? The community development and land use literatures are rife with the assumption that, when it comes to community control and public participation in development and redevelopment projects, poor and marginalized people benefit from more community engagement and public participation. Often, however, when it comes to land use decision-making, public participation is utterly dysfunctional—and poor people bear the brunt of that dysfunction.

Lemar recounts in her article the history and rationale behind public hearing requirements and processes for land use actions, much of it for good reasons, such as the 1960’s style urban renewal that often occurred without public input.  But then she describes how these processes have been essentially co-opted by a particular set of community citizens – mostly older, white owners of single-family homes in suburban-style neighborhoods.

There’s lots of background and detail in her piece that planners and land use attorneys will find of interest (or should!), but I’ll just commend it to you to read.  Here’s just a nugget that I came across that so succinctly sums up what part of the bigger problem is:

While at least one scholar acknowledges that conventional arguments in favor of public participation empower NIMBYs alongside the urban poor, no public participation proponent proposes a mechanism by which to distinguish the disenfranchised poor from the well-connected rich.

Or how about this one:

If the planning process is robust, we should be able to make the development approvals process more predictable. Most forms of development ought to be as-of-right under the zoning resulting from the planning process. Skeptics might point out that development approvals processes attract more participation than planning processes do. That, however, is precisely the problem created by the current system. Under the current system, there is little incentive to participate in the planning process, as the approvals process for any given development, subject to the whims of those who choose to testify, does not respect the planning document. As a result, fewer people participate in planning, and those who do participate are undermined by later participants in the development approvals process. If the planning process mattered and was less subject to being overruled during later development approvals processes, it would attract more attention and participation.

I want to talk briefly about what Lemar comes up with as possible fixes for these public hearing problems.  She uses as part of her solution the Revised Model State Administrative Procedures Act, which includes a section on public participation and how it should figure into decision-making processes.  The main difference with this is that the Act does include input from public processes, but also requires that decisions be made on the basis of independent analysis undertaken by the agency.  This is a good model for the administrative portion of the land use actions we undertake, and Lemar and others acknowledge that.  She indicates that there should be two different public involvement processes:

Similarly, legislatures, local governments, and courts ought to distinguish between rulemaking (zoning regulations) and contested cases (development approvals) in the land use context.

She advocates for states (in most cases, that means the legislature) setting out a dual track process for public input on land use actions.  For legislative actions, she says:

… (the) planning process ought to be framed in terms of change. What about their community would participants like to see improved? As Warren Logan suggests, even when they do not have the expertise to posit solutions, residents can identify problems which then might be solved through better planning and land use decisions. A planning process that explicitly describes the problem paves the way for later determinations of whether the problems have, in fact, been solved or exacerbated. In the context of planning and rezoning decisions, bureaucrats and commissioners ought to solicit public input widely, from within the city limits and beyond. Logan describes attending community festivals and get-togethers to solicit perspectives… . He does not rely exclusively on traditional public meetings, which, he explicitly recognizes, preference the perspectives of “wealthy homeowners.” There is no reason to preference the neighbors, and participation ought to be solicited broadly. While zoning enabling acts require that notice be given to neighbors, anyone ought to be able to register with the state to receive notice of land use hearings. This would allow affordable housing advocates, the homebuilders’ lobby, disability advocates, advocates for social services agencies, and others to receive notice and share their expertise. Crucially, however, the results of those participation processes must be filtered through planners and commissioners required to consider factors other than public opinion as presented in the public process.

Traditional public hearings are insufficient and should be supplemented with outreach to community organizations, historically disenfranchised communities, communities unlikely to attend public hearings, and communities susceptible to silencing by traditional public hearings. The zoning enabling act or zoning ordinance ought to set precise processes for outreach and require the planning agency to interrogate whether the community engagement process was effective. The process ought to reach those least likely to attend and testify at traditional public hearings through outreach at public schools, neighborhood festivals, and religious institutions: places where people congregate even if they do not have strong feelings about real estate development.

This (and more!) is what Lemar talks about for legislative land use actions.  She even brings up the need to counteract or balance “neighborhood defenders” (from a research work by Katherine Einstein at Boston University – more on this coming in a future post!) and “homevoters” (remember Zoning Rules! by William Fischel?).  The public often make statements in such legislative action hearings that are just plain untrue – like “this rezoning will cause traffic to make our local street fail” or “there will be more children than the schools can handle.”  In such cases, Lemar refers back to the Standard APA:

Under the Model State APA, following receipt of public comment, an agency must issue a final rule, accompanied by an explanatory statement that responds to “substantial arguments made in testimony and comments.” … Similarly, the AFH rubric required agencies to “[i]nclude a summary of any comments or views not accepted and the reasons why.” The requirement that the agency explain its reasoning and respond to the arguments is key. Narrowing the scope of testimony, as permitted by the Model State APA’s evidentiary rules, does not address the problem of veracity. Therefore, rather than allow an individual’s testimony—whether or not true—to stand on its own, the process ought to require bureaucrats and commissioners to address in writing the substance of all comments made, thus limiting a comment’s effect and impact if it is irrelevant or untrue or a resident overstates its importance. Requiring planners and commissioners to issue reports elucidating the results of public participation and the planners’ and commissioners’ responses to those comments serves an important documentation role, as well. … Planning and zoning laws should require planners and commissioners to explain their decisions rather than simply say that members of the public supported or did not support a particular choice. If an explanation is not required, there is no protection against the possibility that a proposal simply lost a public hearing popularity contest.

For administrative decisions, Lemar says that once the robust legislative planning process has taken place and rules are crafted that reflect those outcomes, those rules should mostly allow by-right development.  In cases where there may still be reviewable decisions, hearings and input should follow a different set of rules:

In contested cases, an evidentiary hearing is required if the applicable constitution or statute so provides. Evidentiary hearings are public but not generally open to public participation. One may seek to intervene if the applicable statute expressly permits or if one has an interest that may be adversely affected by the proceeding. The same should be true of development approvals. The Model State APA does not incorporate the Federal Rules of Evidence, but it does set minimum standards for the evidence presented in a contested case evidentiary hearing. The Model State APA requires that evidence be relevant and material: “The presiding officer may exclude evidence in the absence of an objection if the evidence is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of an evidentiary privilege recognized in the courts of this state.”

Okay, I’ve gone on long enough with this post, I think you get the idea.  Read Lemar’s article.  Then I have one more to talk to you all about next, from a guy at the University of North Carolina School of Government, and then also about Katherine Einstein’s research on “Neighborhood Defenders.”  After that, we need to have a serious talk about what we can do about our required public processes for land use!