Due Process In Land Use Hearing
Any applicant appearing before a local body requesting a decision of that local body when acting within the scope of its powers is entitled to receive due process of law.
- Due process is guaranteed by the United States Constitution.
- Amendment 5 provides that no person shall “be deprived of life, liberty, or property, without due process of law;” Article 14, Section 1 provides “Nor shall any state deprive any person of life, liberty or property without due process of law...”
- A similar provision exists in the Colorado Constitution at Article II, Section 25. “No person shall be deprived of life, liberty or property without due process of law.”
- In the land use context, because property rights are at issue, the provisions of each of the constitutional sections cited above, together with 42 U.S.C. § 1983, are applicable.
Legislative v. Quasi-Judicial Actions.
The level of due process which is required to be afforded depends upon whether the action of the governing body is legislative or quasi-judicial in nature.
The Colorado Supreme Court, in the case of Cherry Hills Resort Development Company v. City of Cherry Hills Village, 757 P.2d 622 (Colo. 1988) has discussed the distinction as follows:
- Legislation action is usually reflective of some public policy relating to matters of a permanent or general character, is not normally restricted to identifiable persons or groups, and is usually prospective in nature. Quasi-judicial action, on the other hand, generally involves a determination of the rights, duties, or obligations of specific individuals on the basis of the application of presently existing legal standards or policy considerations to past or present facts developed at a hearing conducted for the purpose of resolving the particular interests in question. This type of decision-making is denominated “quasi-judicial” precisely because it bears similarities to the adjudicatory function performed by courts. If a statute or ordinance authorizes the exercise of quasi-judicial authority but does not provide for notice and hearing, these basic requirements may property be implied as a matter of fundamental fairness to those persons whose protected interests are likely to be affected by the governmental decision.
The leading case on what makes a matter quasi-judicial is Snyder v. City of Lakewood, 542 P.2d 371 (Colo. 1975). In Snyder the Court identified three criteria for identifying a matter as quasi-judicial, which are: (1) a state or local law requiring that the body give adequate notice to the community before acting; (2) a state or local law requiring that the body conduct a public hearing, pursuant to notice, at which time concerned citizens must be given an opportunity to be heard and present evidence; (3) a state or local law requiring the body to make a determination by applying the facts of a specific case to certain criteria established by law.
Elements which must be present in a hearing.
- The hallmark of a due process hearing is that a “fundamental fairness” attack to the proceedings. Monte Vista Professional Building, Inc. v City of Monte Vista, 531 P.2 400.
- The first element of fundamental fairness is adequate notice to place all parties in interest on notice that a hearing is to held, and giving fair notice as to what will be the scope and requested outcome of that hearing. Failure to give adequate notice may void any action taken at the hearing.
- Level of formality. The level of formality to be afforded at the hearing is essentially a question of local preference, so long as adequate opportunity is afforded for all viewpoints which are relevant to the application to be aired.
- Necessity of findings. In order to comply with due process requirements, and in order to insulate the decision made from successful judicial attack, findings must be made by the legislative body (which findings are always better put in writing), which relate both to the evidence presented and to the criteria which exist and which are applicable to the application being heard. Bauer v. City of Wheat Ridge, 513 P.2d 203.
- Impartial decision-making panel. Applicants are entitled to an impartial panel. Any evidence of predecision, or decision based on matters other than those appearing in the record, potentially subject the decision-makers to liability to the applicant for violation of the applicant’s due process rights.
Ex Parte Contacts And Quasi-Judicial Decisions
What is an ex parte contact?
Broadly defined, an ex parte contact is any written or verbal communication initiated outside of a regularly noticed public hearing between an official with decision-making authority and one or more of the parties, but not all of the parties, concerning a particular subject matter which is under, or which is about to become under, consideration by that official, and which seeks either to influence, or present information relating to, that matter which is the subject of the decision. The term is usually used in a courtroom context; the judge cannot discuss a case with either party or their attorney without the other party and the attorney being present. The term is also equally applicable to any quasi-judicial matter pending before a local governmental body. An ex parte contact may include discussing an upcoming hearing or decision with the staff.
Why are ex parte contacts before making a quasi-judicial decision improper?
All parties are entitled to have the matter heard by an impartial person or body. At the very least, ex parte contact, whether the contacting person is an applicant or a protestant, call into question the impartiality of the decision maker.
Every quasi-judicial decision must be supported by findings of fact, and the findings of fact must be based solely upon the evidence as it appears in the record of the proceeding. The record of the proceeding consists only of matters presented at the hearing, not anything presented before or after the hearing. Therefore, to have a defensible record, only evidence presented during the hearing, on the record of the hearing, may be relied upon in reaching the body’s decision.
In some instances, the parties have the right of cross-examination of the opposing side. They cannot cross-examine an ex-parte contact.
In the event one party challenges the final decision, you can be sure any ex parte communications will be included as one of the grounds for reversing the decision.
What do I do if someone attempts to contact me before a hearing?
Stop the Person. If it is a verbal contact, advise the person that you are sitting as a judge in the matter and you cannot listen to or review anything about the issue prior to the hearing.
Disclose the Contact. At the next public meeting or prior to the hearing on the public record, advise the remaining members of the board and the parties of the contact, your response, and whether or not you think you can make an impartial decision based on the evidence presented at the hearing despite the contact.
Consider Whether the Ex Parte Contact Requires Abstention. An ex parte contact, by itself, is usually not enough to reverse the final decision or require you to abstain from voting on the issue. Each individual contact must be reviewed to determine whether it affects your impartiality or ability to consider the matter fairly, whether it creates an appearance of impropriety, whether it creates a conflict such that you cannot participate in the decision-making process, or whether it otherwise affects the rights of the parties seeking the decision to “fundamental fairness” or due process in the decision-making proceedings.
Consider Adopting Formal Procedures. It is difficult to tell a neighbor or a constituent that you cannot talk to them about an issue that may be very important to them. Very often constituents are unable to understand why they cannot speak about particular issues to those who have been elected or appointed to represent those constituents. It may help to have specific procedures that the governing body or the planning commission has adopted that you can point to as the reason you cannot handle a quasi-judicial issue in the same manner as you do other legislative or administrative issues. This will also help to make sure all board members handle ex parte contacts in the same manner.
Conflicts Of Interest
Premise: It is not a conflict of interest to have an opinion! It is only a conflict of interest when you act on that opinion for personal pecuniary gain, rather than in the general public interest.
Basics
Statutory Provisions
- Sections 31-4-404, 24-18-109, and 24-18-201, et. seq., C.R.S. provided guidelines to defining and disclosing conflicts and abstention from participation when there is a conflict. Most of these deal with having a direct financial interest in a contract being awarded or other decisions being made. Municipalities have more limitations than other local governments.
- 31-4-404(2). Any member of the governing body of any city or town who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon, and shall refrain from attempting to influence the decision of the other members of the governing body in voting on the matter.
- 24-18-109(2). A local government official or local government employee shall not: (a) engage in a substantial financial transaction for his private business proposes with a person whom he inspects or supervises in the course of his official duties; or (b) perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent.
- Potential criminal ramification for conflicts are in 18-8-301, et. seq., and 18-8-401, et. seq., C.R.S.
- Many municipalities have local ordinances or rules governing conflicts.
- What to do if you have a conflict:
- Disclose
- Abstain from voting (except if necessary for quorum)
- Do not participate in the process (you cannot lobby your fellow board members or speak as a regular citizen)
Avoiding Personal Liability In The Making Of A Land Use Decision
Following the rules for conducting quasi-judicial hearings clothes the decision maker in the common law judicial immunities.
- Pearson v. Ray, 386 U.S. 547
- This immunity can be lost, however, when judges act in some manner other than as judges.
Legislative immunity
- At common law, legislators, when acting within the provisions of the “speech and debate clause” of the United States Constitution, are absolutely immune from liability for their official actions. Tenney v. Brandhove, 341 U.S. 367.
- This immunity, too, may be waived when ultra vires action are taken.
Colorado Governmental Immunity Act
- The Colorado Governmental Immunity Act, 24-10-101, et. seq., C.R.S., affords protection to government officials when acting within the scope of their duties except for six identified, but here irrelevant, circumstances.
- Willful and wanton conduct is not protected by the Governmental Immunity Act.
How to lose your immunity
- There are some very, very easy ways to lose immunity and therefore subject yourself to personal liability. Among these are:
- Prejudging a matter.
- Having ex parte contacts with applicants or objectors.
- Making a decision which is in violation of clearly established law.
- Acting outside the scope of your authority.
- Ignoring or going against publicly given legal advice.
- Ignoring, or acting outside the bounds of established procedures or ordinances.
Source: Hayes, Phillips & Maloney, P.C., Attorneys at Law, Suite 450, The Market Center, 1350 17th Street, Denver, Colorado, 80202