I want to expound today a bit (well, actually, a longgg bit!) on a topic that plays a key role in the land use process – public hearings and public comments. It’s something we talk about in every land use training session I do. A few years ago I even did an hour long session just on public meetings and hearings. It is a crucial factor in much of what happens in the land use arena.
In those training sessions, I always point out that the land use process in Utah consists of two main functions – the legislative and the administrative (there’s actually a third – the quasi-judicial, but I digress). Under LUDMA in the Utah state code, legislative actions (general plans, land use ordinances, zoning and rezonings, annexations) must first receive public hearings by the Planning Commission before they can move forward. This seems a good requirement as these are policy level actions where the opinions of the residents of the community are entirely appropriate. And that’s pretty much what we get from citizens in public hearings, their opinions, right? Administrative actions (consideration of land use applications like conditional uses, site plans, subdivisions, and so on) are not required by LUDMA to have a public hearing. This again seems appropriate because, as just noted, we usually just get opinions from the public, and administrative decisions must be based on facts and evidence. Yet many, if not most, land use administrative actions undertaken in our local governments hold public hearings. Why? Custom mainly, I think – it’s always been done that way. That’s a topic for another discussion.
All this was brought to top of mind for me by two recent writings I saw. The first was a post on the APA Utah website by my good friend, former professional colleague and current fellow Kaysville planning commissioner Paul Allred, titled Clamor Is King https://apautah.org/clamor-is-king/ In it, Paul notes how the public hearing process used in virtually every community often results in the stifling of reasonable and needed new and varied housing, especially in this time of a housing affordability crisis. He says:
… it appears to me that the approval process for development is inconsistent, tremendously subjective and emotional, and far too inflexible to allow for the natural development of our communities. Rezones, are perhaps the most indicative example of systemic flaws in addressing both local and societal crises such as creating desperately needed housing.
And this for legislative actions, according to Paul, which are subjective at best. What does that say about hearings for administrative actions? He goes on to propose some ideas for modifying the public hearing process ground rules, which are worth considering. Paul also told me when we talked recently that he’s working on his version of Martin Luther’s 95 Theses, but in this case about public hearings, not religion (whew!). Love to see those, Paul.
The second thing I read was a piece on The Atlantic website titled Community Input Is Bad, Actually, by Atlantic staff writer Jerusalem Demsas https://www.theatlantic.com/ideas/archive/2022/04/local-government-community-input-housing-public-transportation/629625/He introduces the issue this way:
Development projects in the United States are subject to a process I like to call “whoever yells the loudest and longest wins.” Some refer to this as participatory democracy. Across the country, angry residents and neighborhood associations have the power to delay, reshape, and even halt entirely the construction of vital infrastructure. To put a fine point on it: Deference to community input is a big part of why the U.S. is suffering from a nearly 3.8-million-home shortageand has failed to build sufficient mass transit, and why renewable energy is lacking in even the most progressive states.
Demsas goes on to say:
Democracy is at its best when the views and needs of the people are accurately transmitted to their representatives, the representatives act, and voters express their approval or disapproval in the next election. The existing community-input system purports to improve upon this process by offering a platform where anyone can show up and make their voice heard. After all, providing input shouldn’t just happen at the ballot box, or so the thinking goes. But the process is fundamentally flawed: It’s biased toward the status quo and privileges a small group of residents who for reasons that range from the sympathetic to the selfish don’t want to allow projects that are broadly useful.
Demsas goes on to give several illustrations of his point. I’ll just throw in another clip because he so succinctly captures the nature of many of our citizen input sessions:
… developers have to present their projects at public meetings. Community members can come and register their opinions about apartment buildings, homeless shelters, dorms, and on and on. Even someone attempting to convert her garage into a mother-in-law suite might need the approval of her neighbors. It’s like a homeowners’ association from hell, backed by the force of the law. In the Bronx, a neighborhood meeting on April 19 where hundreds of potential homes were up for debate devolved into chaos as residents shouted “Go home” and “Do you live here?” at the presenter. As the developer struggled to make clear that this project would bring much needed housing to the area, someone shouted “We don’t need affordable housing” as their neighbors applauded.
In summing up the problem, he writes:
The community-input process is disastrous for two broad reasons. First, community input is not representative of the local population. Second, the perception of who counts as part of an affected local community tends to include everyone who feels the negative costs of development but only a fragment of the beneficiaries.
Not everybody is a complainer, but pretty much everyone who shows up to community meetings is. Katherine Einstein, David Glick, and Maxwell Palmer, Boston University political scientists and co-authors of Neighborhood Defenders, examined zoning and planning meetings across Massachusetts. They found that a measly 14.6 percent of people who showed up to these events were in favor of the relevant projects. Meeting participants were also 25 percentage points more likely to be homeowners and were significantly older, maler, and whiter than their communities.
What’s Demsas’ answer to all this? Well, as has been evident in some states recently, he says the decision making level should be moved higher.
Local government is fundamentally not equipped to internalize and weigh the benefits and costs of large infrastructure projects, which can affect the economic and environmental prospects of the whole nation. … moving decision making from the hyperlocal level to the state level is the first step to fixing the broken development process. This would ensure that a larger proportion of voters had a say, though an indirect one, in housing, transportation, and renewable-energy policy, because more people vote in these elections than hyperlocal ones. We have to let representative democracy actually work.
Is this the right approach? Maybe, maybe not. I’m hesitant to think so. It certainly is worth a discussion. Maybe a topic at an upcoming conference?