UNIVERSITY OF COLORADO
KIRK E. DOUGLAS DECEMBER 1980 UNIVERSITY OF COLORADO AT
In fulfillment of thesis requirements for the MasteT of Planning and Community Development Program College of Environmental Design
To my Father and my patient Wife.
This thesis is not only the result of many months of research and several years of observation, but reflects the insights of six gifted professionals who have greatly influenced my perception of planning and our great system of government.
Academically, Herb Smith has shared in the frustration of planners for at least thirty years. Herb has graciously acted as my mentor for both professional career and academic development. He is a man of undying patience and total commitment to planning.
David Hill is an intense academician who is particularly gifted in planning theory. Dave has directed much of my thinking on the practice of planning, as well as serving as a worthy debate opponent on energy issues. Suddenly I have discovered that we are on the same side of the issues in most circumstances.
Eric Kelly is a practicing attorney who has no practical need to be an educator, except through personal commitment. Eric is an idealist, who has the capacity to effect his dreams. More than any person in my career, Eric encourages me to be a true planner. Instead of asking why, Eric has convinced me to ask why not.
From the governmental perspective, Keith Troxell is a county commissioner who had the opportunity to vote against one of my proposals twice. In doing so, he has taught me about the politics of planning. Keith is extremely committed to serving his constituents and acting in the true model of representative democracy. He is one of the few who has the ability to say no and be right.
Dick Greene is a district judge whom I have known for over twenty-five years. Dick has intrigued me as an attorney and convinced me that lawyers are probably one profession more frustrated than planners. More than anything, Dick has watched my knowledge and perception of decision making mature.
With his undying patience, I have learned that even the judge is a warm and sensitive human being.
Lastly, Gale Christy is a city manager who is deeply committed to a community. While he could leave public administration and make thousands of dollars more in private business, he has a sense of community which is greater than personal satisfaction. Gale is gifted with leadership. From him, I have learned that difficult problems encourage creativity.
All six gentlemen have long ago secured my personal admiration. To them, I am personally indebted.
Kirk E. Douglas December 1980
TABLE OF CONTENTS
Chapter 1 - Public Land Use Decision Making................... Page 4
Legislative Decisions.................................... Page 4
Quasi-Judicial Decisions................................. Page 6
Administrative Decisions................................. Page 7
Referendum Decisions..................................... Page 7
Summary.................................................. Page 8
Chapter 2 - Typical Strengths And Weaknesses Found
In The Land Use Decision Making ProceTses.............. Page 9
Legislative Process...................................... Page 9
Quasi-Judicial Process................................... Page 12
Administrative Process................................... Page 15
Referendum Process....................................... Page 17
Summary.................................................. Page 20
Chapter 5 Case Studies............................................ Page 21
Legislative.............................................. Page 21
Quasi-Judicial........................................... Page 24
Administrative........................................... Page 28
Referendum............................................... Page 31
Inefficiencies........................................... Page 33
Summary.................................................. Page 35
Chapter 4 - Gamesmanship........................................... Page 37
Chapter 5 Reorganization......................................... Page 45
Chapter 6 Conclusions............................................. Page 56
Bibliography........................................................ Page 1
The mandate of the United States Supreme Court in 1926, in the historic case of Euclid V. Ambler Realty Company, has served to make legitimate the practice of zoning as a police power in which Government entities may engage.1 This case has provided the foundation for much of planning and zoning as it is applied today extensively throughout the Country. Though the courts have since spoken loud and clear in affirming the rights of government to utilize zoning as an exercise of police power, no distinct definition as to how the authority is to be exercised has been given.
Courts throughout the United States have differed among litigants in finding that land use decision making is: administrative, adjudicative, legislative, executive, quasi-judicial, quasi-legislative, and judicial in character.^ Depending upon the state, the courts are likely to have found that zoning or zoning amendments, special use permits, subdivision review and approval, or other traditional planning functions, fall within one or more of the above categories. In states such as Oregon, Colorado, and others, the state courts have found the same action in planning and zoning to be different functions on different occasions.^ in these instances, one must rely on the most current finding of the highest court, and hope that the bench does not change the rules for planners, unknowingly.
As the above implies, the United States Supreme Court has never arrived at a precise finding as to the character of local planning and zoning decision processes. In 1976, the court came as close as possible without facing the problem directly, finding that zoning decisions may be properly placed before the people in a referendum, in that such actions have a legislative
character. While the State Supreme Court of Ohio made an effort to debate
the question of administrative versus legislative versus the quasi-judicial character of zoning decision processes, the United States Supreme Court placed the label upon the actions of legislative without substantial debate, and spent the majority of its analysis on the reserved rights of the public to enact legislation by referendum.^ Although the finding in this case, which is the subject of a later case study in this text, made a legislative assumption, the Supreme Court has never truly resolved the question at hand.^
In general, the State Courts have found the process of zoning to fall within three categories -- administrative, legislative, or judicial. Although these categories may be disected or broken down with different names such as "quasi judicial or legislative, executive, adjudicatory, etc., the truth remains that only three true characterizations apply. One administrative scholar has observed:
"There is little controversy about the capacity of city councils, boards of county commissioners, or boards of township trustees to act other than legislatively. It is clear that decision making bodies perform not only legislative, but also executive and judicial functions. Unfortunately, any clarity vanishes when an attempt is made to stake out the boundary between what is legislative, executive, and judicial. Confusion abounds..."?
This thesis will present two themes which closely correlate with the above quote. First, the characterizations by the courts of land use decision processes as administrative, legislative, and judicial are inconsistent. Second, ^regardless of the label placed upon the process, land use decision making in all three traditional frameworks, have inherent inefficiencies and weaknesses which participants have seized upon. This thesis will present case law findings, examine the weaknesses of each land use decision making process, present case studies showing the weaknesses, and suggest solutions to the above dichotomies and problems.
In general, this thesis will show the ambiguity in the division of power within local governments in making land use decisions. This abstraction has lessened the efficiency of government in exercising land use controls. The result of this inefficiency has been a growing distrust and skepticism towards local governments and members of the planning profession. The solutions of this thesis will show the planner how to better function within the existing decision making process or restructure land use decisions to be less abstract.
The purpose of this thesis is not to attempt to discredit the American civic process. It will not and cannot dispose of the tripartite system of checks and balances which has worked well for over two-hundred years. This thesis merely suggests that in the exercise of police powers through land use controls by governments, it is not only important to understand the future that is being planned for, but to understand how we are to achieve it, through planning and decision making.
- 4 -
PUBLIC LAND USE DECISION MAKING
In civics, it is taught that our government is divided into three separate and distinct branches Executive, Legislative and Judicial. With this has gone the traditional definition that the legislative arm creates new laws, the executive arm administers laws, and the judicial interprets the laws and their administration within the confines of our Constitution.
This elementary analysis suggests that each arm of government has a separate function, referred to as the separation of powers doctrine.*
As Chapter 1 of this thesis will show, in the study of land use decisions throughout the United States, there is no separation found. Legislative bodies, such as City Councils, Boards of County Commissioners, and Township Trustees, have been found making all three types of decisions administrative, legislative, and judicial. Likewise, "The American Law of Zoning" cites rare instances when the courts have engaged in all three forms. Furthermore, executives such as city managers and mayors cross the traditional lines of decision making authority regularly. What is assumed as a clear-cut doctrine of separation is vaguely clear and ambiguous relative to land use decisions.
The state courts have taken occasion to analyze the above practice. Keeping in mind that this thesis relates only to land use decisions, the preponderance of these actions are taken by legislative arms of government.
"Where a municipality in the exercise of delegated authority embarks upon a policy of zoning for the purpose of regulating and restricting land use and the construction of buildings, it
is exercising legislative power.
The above quotation represents the majority view through the United States.^ From it flows a strong presumption of constitutionality which attaches to the process of legislative action.^ As will be discussed later, this is perhaps the greatest flaw with the act of legislation.
Approximately forty states have case law findings that land use decisions are legislative acts. Of these, three or four states have findings that zoning regulations are initially promulgated through a legislative act, and then all actions henceforth, are administrative functions.^ As such, over 80% of the states believe that land use decisions, as made in the public administration process, are legislative. The exact numbers cannot really be known because of some states which highly differentiate land use functions according to the size and impact of a request. Municipal codes and city charters further prevent a determination of the exact numbers.
In general, courts have preferred to view zoning as a legislative process for two reasons. First, land use and zoning decisions are normally broad based and policy oriented.^ Second, abuse of the legislative process is theoretically self-remedying at the polls.? Unfortunately, both arguments used by the courts in justifying the legislative label, are also arguments against such a label.
The legislative process is confined only by Constitutional bounds.
"Prima facie every act of a legally constituted legislative body is constitutional..."^
As such, because of the presumption of validity, courts have found it easy to label land use decisions as legislative. Furthermore, because the majority of land use decisions are made by the legislative arm of government, it makes it convenient to assume that the actions taken equate to the Constitu-
tional function of the respective arm.
"At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of separation of powers.
Zoning is a quasi-judicial function where all parties are entitled to a public hearing.
Six states have found that zoning actions undertaken by the legislative arm of government, in the process of land use decision making, are quasijudicial in nature.^ The six states which label zoning actions as quasijudicial have recognized a basic difference between a specific rezoning request and the broad community objectives affected by large zoning or plan amendments. Although the strengths and weaknesses of each decision making process is the subject of a later part of this thesis, the judicial justification for the above label, is found in the weaknesses of the legislative process.
In general, four reasons for labeling zoning decisions quasi-judicial have been cited by the courts. First, due process, provided for in the Fourteenth Amendment of the Constitution, is assured in a judicial process. Second, judicial actions are not, in theory, subject to political whims and popularity polls.Third, the process of exercising discretion between competing interests is a judicial or administrative act.And last, the presumption of validity afforded to legislators, in the process of legislation, leads to potentials for abuse with little or no judicial remedy.
Each state which has assigned the quasi-judicial label to decision making had previously assumed legislative labels.^ The trend commenced in 1962 in Illinois, and has grown to include Washington, Oregon, Colorado,
Kansas and Michigan.^
"There is increasing awareness that zoning decisions may be either administrative or legislative depending upon the nature of the act, and that while the enactment of a comprehensive plan and zoning code a policy making decision, is legislative, an amendment of such a plan or code, essentially an adjudication of the rights of proponents and opponents of the proposed zoning change, constitutes an administrative or adjudicatory act."*
A few states have allowed land use decisions to be assigned an adminis trative label.While the above quote neatly differentiates between the adoption and amendatory functions in planning, the bounds at which a decision is an adjudication of rights or community policy, is as vague as can be. It is hard to conceive of a policy decision that does not adversely affect one person's rights to the advantage of another. Likewise, in a government system which is heavily dependent upon precedent, it is hard to conceive of an adjudication of rights which does not in 'some manner affect policy.
The few courts who have found zoning and land use decisions to be administrative have used two justifications. First, the inherent judicial power to review the actions of administrative agencies is much broader than the authority of the courts to review legislative action, thereby safeguard ing personal and property rights.20 Secondly, the balancing of individual rights, is not subject to any act of legislation and is therefore, administrative in nature.2^ The justifications are in many respects similar to to those used for quasi-judicial decisions.
"The amendment of a zoning ordinance is legis-
lative rather than administrative, and is therefore an action subject to referendum."22
The referendum is a fourth class of land use decision which is separate from the three above. For the purposes of this discussion, both initiative and referendum are assumed similar in nature, in that both place a decision in a public forum for popular vote. It is significant to this analysis in that the United States Supreme Court has ruled that the referendum decision making method is valid and proper, given the context of legislative action.2^ This decision has opened literally hundreds of new potentials to be considered by planners.
In arriving at the decision of Eastlake v. Forest City Enterprises, the court used one central justification.24 That is, in a representative democracy as we have, the people have reserved the right to speak collectively in a referendum process of legislation. Of course, this presumes a legislative label on the decision making process. Because over 80% of the states concur in this label, the referendum is an important potential in these states. The Eastlake decision has legitimized a fourth class of decision making with far reaching prospects.
As this chapter has shown, the process of making land use decisions, is not as clear as the right to make them. While one court finds that such a process falls within one category, another court will find just the opposite. Though the decision making process is nebulous, the right of local government to make land use decisions has been uniformly upheld as a legitimate exercise of the police power.
TYPICAL STRENGTHS AND WEAKNESSES FOUND IN THE LAND USE DECISION MAKING PROCESSES
"A central problem in administrative law is how to ensure effective operation of boards and commissions while at the same time providing adequate safeguards against abuse of their power.
The problem referred to in the above quote touches upon the center of one of the questions analyzed herein. Namely, which, if any, of the available decision making processes provide for the effective dispensation of justice, while protecting both individual and public rights. None of the decision making methods discussed thus far, have been totally successful.
This chapter will further analyze the existing labels which are placed upon land use decision processes, and define the strengths and weaknesses within each. Again, process will serve as the focus for this analysis.
To find a weakness in any system, is not to say it does not work. A weakness is indicative of a point of vulnerability. It shows the planner, lawyer, public administrator, or any other participant in the decision process, the point that either warrants attack or reinforcement. By understanding the strengths and weaknesses, we are better equipped to tactically play the zoning game.
Legislative Process Strengths and Weaknesses
"Courts have nothing to do with the wisdom of laws and regulations, and the legislative power
must be upheld unless manifestly abused. ---
The only function of the courts is to determine whether the exercise of legislative power has exceeded constitutional limitations.
The act of legislation may be simply defined as the process of making
law. Clearly, any law may be made within the bounds of the Constitution, for nearly any reason, purpose, motive, or lack thereof, that the legislative body may choose. The courts have given great deference to the law maker.3 This has not been exclusive to Federal and State legislative bodies, but extends to the smallest of Municipal and County entities, as well.**
Very few bounds are placed upon legislators, other than the Constitutional limits. The most significant is the desire for re-election. Local charters or home rule provisions may place additional limits upon legislation, but these are not generally significant relative to land use decisions. In the absence of the desire for re-election, the potential for legislative abuse is extreme. The Supreme Court wrote regarding the legislative power in 1876:
"For us the question is one of power, not expediency. We know that this is a power which may be abused; but that is no argument against its existence. For protection against abuse by legislatures the people must resort to the polls, not to the courts."5
The potential for legislative abuse by "lame duck" Senators or Representatives, or abuse by those with no desire to seek re-election, must be considered small at the state or federal level. However, considering that many states have Boards of County Commissioners composed of only three members, the likelihood that any two may at sometime be mutually sympathetic as well as politically able, is much larger. The first point is not so much one of "abuse", but instead the ability to persuade only one or two to secure a legislative decision in the interest of a proposal. So vulnerable is the three member legislative body that strategy and tactics have been developed to aid in persuasion.5
While it is highly unethical to approach a judge and argue a case outside the court, the city council person or county commissioner who operates within the legislative framework, is a legislator. To them, there are no
such rules. The ex parte contact is fair game.? If a person is successful in ex parte persuasion, the courts will likely uphold the decision which has been made.
Case law speaks clearly that the motive of zoning bodies operating within a legislative mode, is nearly always outside the jurisdiction or perview of the courts.^ Only in the rare case of Constitutional violation, is motive even subject to question.
Further, legislative acts raise additional concerns relative to assuring due process to participants. In some instances, zoning changes have been legislatively accomplished without public notice, and the courts have upheld such in the absence of notice requirements.** Although most municipal codes or zoning resolutions provide for public notice and hearing, other essential elements of due process such as the right to cross-exam witnesses are not, as a rule, provided.^ Legislative acts do not require strict adherence of
due process requirements as a judicial or administrative proceeding.
The final weakness of the legislative process relates to the suscepta-bility of legislation to be subjected to referendum. Although the referendum will be discussed later, the legislative decision appears to be the only type of land use decision which may be subjected to popular vote.
The strength of the legislative process is two-fold. One, legislative bodies change frequently, and so may their attitudes toward land use matters. It is assumed that whatever a legislative body may legislate, they may also unlegislate. Additionally, with legislative terms of office staggered, an applicant is never more than twelve to twenty-four months away from a potentially new decision making body. Second, the legislative process generally works for the people who are sincere and committed to a community. Although
the process has a few vulnerable points, it has worked fairly well over two centuries. Most legislators desire to be re-elected, are honest and sincere, and wish to serve the majority of their constituents in the decision making process. In this regard, fair and equitable solutions are often the result in the legislative forum.
Quasi-Judicial Process Strengths and Weaknesses
"The process calling for the exercise of discretion by the governing body according to the weight of conflicting public considerations is judicial in quality."15
The judicial process may be defined simply as exercising judgment between competing interests within the bounds of the Constitution. Placing the qualifier title of "quasi" before the word judicial, has been thought of as a social maneuver. Two reasons which have been hypothesized for this is to soften the idea of city councilmen and county commissioners as judges, who are for the most part lay persons within the community, and further, to remove the ultimate finality of issuing judgment by making it quasi-judgment.^
The first weakness of the quasi-judicial process is its failure to be devoid of the political whims and popularity aspects which it was created to overcome.^ The local decision maker, who is politically responsible to a body of constituents, is placed in a precarious posture when forced into a judicial decision forum. Most local legislators are more accustomed to speaking at the Rotary Club, answering complaints by constituents, and making promises. They scarcely know how or desire to be quasi-judges, indifferent to constituent wishes and demands. Judicial actions must be predicated upon due process and further, must find its basis upon evidence. Personal knowledge and the question of popularity should not have a role in
The above premise is often overlooked in land use decision making. It is not uncommon for decision makers to ask for a show of hands of proponents and opponents attending a public hearing.^ Another common function for a board of decision makers, supposedly operating in a judicial forum, has been to circulate a clipboard asking everyone in attendance to indicate their support or objection to the subject issue.^ Although public preference may be received as evidence, it has no place as a foundation to justice. Abuse arises when the elected official is unable to make the unpopular decision in accordance with a preponderance of evidence.
In one Colorado municipality which is charged with making quasi-judicial land use decisions, the "good ole boy" political system dictates that if the councilman who represents the geographic district in which a decision is to be made, does not support the land use decision, the action automatically dies.Prior to Snyder v. Lakewood, Colorado, this policy was a written practice in Denver. Today, the practice is one of political protocol, as opposed to policy. Such a system, scarcely overcomes the political spoils, which quasi-judicial decisions were designed to prevent.
The applicant for a land use decision is placed at an inherent disadvantage under a quasi-judicial framework. While it is a legitimate practice to contact a legislator to discuss an issue, it is not proper to contact a judicial decision maker outside of a public hearing.21 The claim of ex parte communication frequently surfaces in the quasi-judicial decision process.22 The disadvantage which this places upon the applicant is a prohibition from contacting the "Judges", while the opponents to a land use request contact their local legislators, of whom they are constituents, to voice their position on the same issue. Both the legislative and quasi-judicial roles are played at the same time by the local decision maker. This leads to a form
of political gamesmanship, where the decision maker may be literally swamped with opponents, but the applicant has one chance to make his arguments on the merits of a request. Again, the local decision maker who is politically and socially active in a community, has little desire or ability to be a judicial decision maker.
Another disadvantage to the quasi-judicial process relates to the burden of proof. The applicant must show with a preponderance of evidence that a proposal meets the performance standards or decision criteria of a local government. This task in and of itself is not negative. However, the criteria of a local government is often vague and nebulous. Examples such as, proposals must serve and protect public welfare, or proposal may not materially affect the character of neighborhoods, including aesthetics, traffic patterns, etc., are nearly impossible to factually prove.^ The result of attempting to prove a nebulous precept is generally conjecture.
In some cases, the testimony of professional physicians, planners, architects, and engineers, will be countered by the testimony of housewives, salesmen, or insurance agents. While a court of law may give deference to the qualified expert, the quasi-judge leans towards whoever is most believable --generally a constituent and/or neighbor. The elected legislator must be extremely careful to avoid belittling a constituent, regardless of the professional qualifications, factual accuracy of testimony, or other quality measures.
The courts have generally limited their review of quasi-judicial actions. However, the scope of review is much broader than that which applies to legislative action. Courts have actually taken it upon themselves to grant zoning changes where quasi-judicial bodies received a preponderance of evidence in support of change, but failed to follow through.^
Although the above is
rare, the more common occurrence is to remand action to a decision body, due to an abuse of discretion, or impropriety in the proceeding. Both motive and the wisdom of quasi-judicial actions are subject to review.22 This must qualify as a strength in the process.
As is true with the legislative process, it is very rare when an aggrieved party in a land use decision, either proponent or opponent, is successful in reversing a local government decision. It is not difficult to imagine the likely outcome of having a zoning request remanded by court order for rehearing by a local government, because of a procedural oversight in the original process. The general rule of the courts has been if any competent evidence exists in the record to support a quasi-judicial decision, it will stand. (Emphasis found in the decision of record.)28
In theory, the quasi-judicial process is fair. In practice, it has proven difficult to remove the political discretion upon which the elected official has grown accustomed. As will be discussed later, this is not necessarily the fault of the elected decision maker. Assurance of due process, including rights of cross-examination of witnesses, when properly observed and practiced has aided in making the decision process more effective. However, implementation in the six states using such premises, is marginal.29
Administrative Process Strengths and Weaknesses
"Courts have power to review administrative actions in individual zoning cases, to the end of safeguarding personal and property rights against unlawful or unconstitutional impairment. This is an inherent judicial power of review of all administrative action, which is not afforded to legislative action."30
The administrative decision may be simply defined as the act of resolu-
tion and execution of policy, within the prescribed performance standards of a code or ordinance. In other words, administration is application, as opposed to creation or interpretation. Unlike the previous two decision frameworks, administrative decision making in local government is split at nearly a 50:50 ratio, between decisions made by administrative agents such as city managers, mayors, or appointed boards, and those decisions made by legislative bodies such as city councils or township trustees.
Typically, a legislative body may reserve administrative powers over issues which they feel warrant special attention. Such matters generally include decisions like the granting of permits, such as liquor licenses, use permits, carnival or parade licenses, interpretive zoning decisions, and many others. A legislative body may also delegate to an administrative official or an appointed body the powers of discretion over this realm of decision making.31 The courts have generally held that administrative discretion must be limited to the execution of law and not broad interpretive decisions about the nature of what is the law.32 This task is rather ambiguous in a majority of administrative actions. It is this ambiguity which creates the largest weakness of administrative decisions.
The classic example of administrative zoning decisions relate to code interpretations. A code may list a series of permitted uses within a given zoning district, and conclude with a caveat such as, "and other uses similar
in nature and impact." Another common practice is the inclusion of "appurtenant uses.Other similar uses and appurtenant uses open a zoning ordinance or resolution to a host of interpretive opportunities in the execution of policy. The courts have generally upheld the discretion of administrative officials and boards in these cases.35 However, if discretion is excessive, the decision maker enters the legislative realm, and the courts have been
quick to prohibit such action.
Administrative decisions do not generally require a public hearing. As a result, the process is much faster and timely for an applicant. However, if decisions are to be made by planning commissions, boards of adjustment, or other formalized administrative bodies, they are typically made in or following a public hearing. Abuse most often occurs when the administrative official makes a decision outside of the public's scrutiny. This abuse is not always blatant or defiant as some administrators may be unaware of the controversy created by a good faith exercise of an assigned responsibility. A proponent of a proposal may make excellent use of such an opportunity by securing administrative approval of a land use request, prior to controversy developing.
The public administrator is generally without strong political affiliation. This allows for a degree of objectivity in the execution of policy.
With this comes a lack oT direct recourse against the administrator by aggrieved parties. However, most administrators are acutely sensitive to criticism for usurping the authority of a legislative body and therefore conservatism is the general rule.
Referendum Process Strengths and Weaknesses
"One's right to life, liberty, and property ... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."37
The right of referendum is simply defined as the ability to place certain legislative decisions before the public in an election. Referenda may be used only for legislative functions, and may not apply to either administrative or judicial acts.^8 Because the majority of states have labeled land use decisions as legislative, the process of referendum is germane to
this analysis. As was mentioned previously, the United States Supreme Court
has upheld the right of referendum in zoning actions.-
The arguments for and against referendum are significant. The most common complaint about referendum relates to the conscious effort of elected officials to avoid making tough decisions. Often, a public official may find it easier to allow the public to deny a zoning action, or select a cable television franchise, or create a controversial new authority, than to be responsible for making the decision. The referendum is the ultimate expression of democracy as developed by ancient Greek cultures. An elector-made decision removes accountability from the shoulders of individual legislators. What a decision maker may be unwilling to articulate publicly, the electorate has no problem stating. The classic example is low income housing which would typically attract minorities. The legislator may support such housing for political or moral reasons, but a referendum will make the absence of such in a community acceptable.
The referendum looms as the ultimate decision making method, without broad legal recourse. Case law bears a strong statement that constitutional violation is the only grounds to nullify legislation created by referendum or initiative. If a zoning change, presumed to be legislative, is denied by referendum;who would the applicant sue? Clearly, the electorate is not legally responsible for poor judgment.
In a zoning referendum, the individual rights of a landowner are literally subject to the whims of the general public, most of whom will know little or nothing about police power, or the specifics of a zoning proposal. In such a scenario, the media would serve as the only source of information for the majority of the public. Many cable television franchise elections
around the United States have shorn the results of referendum politics. While the cable television proposal located in the city halls and libraries are read by a handful of voters, cut-throat, deceptive, and slanderous advertisment fills the local papers.^ Much the same might be predicted for zoning by referendum.
While all elections may in some respects bear the potential for special interest politics, it is rare that one offers the potential of a land use election. With few exceptions, only the interested parties to a request would likely vote in such an election, making the special interest group loom as a dominant power. The proponent or opponent could succeed if the support of a group could be secured. This fulfills the Athenian fears of prostituting the pure forms of democracy, which they practiced.
A final weakness in the process of making land use decisions by referendum pertains to the inefficiency and expense of such actions. Public elections, in even small communities, cost thousands of dollars and take months of planning and administration to coordinate. In growth regions of the United States, weekly referendums with multiple ballot proposals would be the result. Such a scenario would not be healthy for the American political process.
The strength of referendum decision making rests in democracy. There is no clearer expression of public desire than through election. While a legislator may believe he is acting on behalf of a constituency, a referendum clears any doubt. Given the fact that the constitutional rights of an individual may not be infringed, simply because a majority of the voters choose that they be, the referendum is as close as we may come to a government of people.
It should now be apparent that each of the three traditionally held decision making frameworks, have their strengths and weaknesses as applied to land use actions.
None of the decision making frameworks are manifestly unfair or corrupt However, the weaknesses exemplified in this chapter show the points of vulnerability within the various processes which have led not only to confusion but occasional abuse.
CHAPTER 3 CASE STUDIES
This chapter will show how some weaknesses of the land use decision making processes brought forth in the previous chapter have manifested themselves in practice. The case studies are intended to show that the weaknesses of land use decision making are more than academic, as abuse has resulted in each process. Additionally, some inefficiencies in decision making should become obvious. Some case studies are based upon personal observations while the majority are based on written account.
Because of the constitutional protection afforded to the legislative process, the greatest possibility for abuse exists. Two outstanding examples of sucli have been found in the study of decision making. The first case involves the City of Miami Beach, Florida.*
In this case, the City of Miami Beach was faced with a request for a change in zoning. The zoning change was for a large area within the community, and was for a reclassification from residential to multi-family/commer-cial. In this respect, the Florida courts had previously found that amendatory zoning processes were legislative in nature.
Apparently, the zoning change was to include lands owned by a city councilman. In Miami Beach, a zoning amendment requires a five-vote majority of the seven-member council. The request for the change in zoning was highly controversial within the community.
Council voted 5-to-2 to grant the requested change. The councilman whose property was included, not only did not abstain, but cast the fifth
vote necessary for the proposal to pass. In the ensuing litigation, a professional appraiser testified that the zoning change raised the value of the councilman's property by $600,000. In 1930 dollars, the figure would approach $2,000,000. Suit was brought to declare the zoning change invalid, due to a conflict in interest.
The Circuit Court of Dade County, Florida, had found the zoning change
invalid. However, upon appeal, eventually to the Supreme Court of Florida,
the court ruled 3-to-2, that the zoning change was indeed valid. To quote
the findings of the court:
"Regardless of our concepts of political morals, we are bound by the historical organic prescription that we recognize the line that separates the exercise of legislative power from judicial power. Only chaos would result from the assumption of power by the judiciary to measure the validity of legislation by the motivating factors that induced a legislator to support the measure."
While it is true that a majority of the disinterested city councilmen supported the zoning change, the idea of conflicting public and private interest enraged only a minority of the court.
"To give approval to conduct so obviously opposed to the traditional standards of morals and ethics required of our public officials is to admit a failure in our judicial system; and I, for one am unwilling to concede that an ordinance enacted under such a circumstance is beyond the reach of the judicial process."
Nonetheless, only a minority of the court felt so bold.
This was not Florida's first endorsement of conflict in interest. The
second case for study, occurred twenty-four years earlier, and was used as
precedent in the Miami Beacli example. The strength of precedent is obvious.
This case involved the president of Coral Gable's Development Company,
who also served as a councilman for the City of Coral Gable's. The president of the company was not alone as other corporate officers and employees of Coral Gable's, Inc., served as city commissioners. In fact, the legislative body was composed witli a voting majority from Coral Gable's, Inc.
In the process of developing the Coral Gable's subdivision, the company had agreed to provide streets and sidewalks to the residents, at the company's cost a standard requirement in all subdivision proceedings. However, in the process of development, funds ran short and the on-site improvements were not completed. The city then voted to levy a special assessment against individual property owners for the completion of the subdivision's infrastructure. For some unstated but obvious reason, Coral Gable's had not been required to bond the completion of infrastructures another common subdivision requirement.
The city levied an assessment and then commenced to bid the job for construction. The company who originally contracted with Coral Gable's,
Inc., for the infrastructures, was awarded the contract to construct the site improvements that the developer had committed to build in the approval process of the development.
Suit was not brought against Coral Gable's, Inc., until five years later. This was due to the fact that the city commissioners were dominated by employees of the company. When suit was finally brought and it reached the Supreme Court of Florida, the Court, among it's other findings primarily relating to the ability to levy special assessments and place liens against private property, found that:
"It is settled that the courts will not inquire into the motives of the legislature in enacting laws. And by analogy to this rule it is generally held that the courts cannot inquire into the
motives of members of a municipal council for purposes of determining the validity of ordinances enacted by them."
What is shown in the above two cases is the ultimate strength of a legislative action. If there are enough votes from a decision making body, a legislative action is the strongest possible decision available in land use proceedings.
The legislative decision framework appears to present more potentials
for abuse, than are exhibited in practice. While abuse potential is large,
little is found in case study. However, in the examples that do produce
abuse, it certainly tarnishes the process. In one dissenting opinion, in
which abuse was overlooked due to separation of powers, it was written:
"I do not consider the holding in the majority decision the announcement of a rule of law, but that it simply amounts to a dogmatic declaration that in the zoning field the will of the legislative body is supreme. This never has been, and never should be, the law of this State.
The quasi-judicial decision making framework is much more restrictive and controlled than the legislative process. As a result, abuse is not as common as mis-use. In other words, the blatant types of actions possible under legislative decision making, have not occurred within the judicial framework.^ However, mis-use or misunderstanding of the quasi-judicial process has produced some interesting case examples. Keep in mind that the single greatest flaw of the quasi-judicial process is its failure to avoid the political pressures of legislative decisions. The two following case studies seem to substantiate this statement.
In Colorado, the courts have established that more land use decisions are quasi-judicial considerations. Some decisions such as the adoption of
a comprehensive plan remain as legislative acts. The Colorado courts have specifically reminded the local decision maker that land use decision processes are not to be "popularity contests".5 Colorado courts have recognized the need for due process, deference to the qualified witness, and evidentiary proceedings. However, when the courts changed the label from legislative to quasi-judicial, little change resulted in public land use decision making, as administered by elected officials.
In the City of Denver, a rezone request was made for a tract of land approximately twenty acres in size in which the adjacent properties within the area were typical 1940's suburban-style homes.^ The property had belonged to a Catholic Seminary for over sixty years and was vacant. The rezone request was to allow multi-family condominiums and townhouses to be constructed.
The recent trends in community development has made "infill" a popular concept among both developers and planners. Infill allows for higher densities to be developed within a community which subsequently allows for more intense use of existing infrastructures. Both the cost of operating and maintaining infrastructure is more dependent upon service territory than actual customers. As a result, a more compact city is more efficient in nearly all respects than the disjointed suburban sprawl which typifies many modern American cities.
The developer of the Seminary property had several professional planners and engineers who provided testimony to the Denver City Council in regards to infill concepts. The proceedings had a quasi-judicial appearance on the surface. The City of Denver's planning staff supported the project and provided testimony in this regard. The professional planners involved with the project were all in agreement about the desirable affects this project
would have upon the community. However, the adjacent residents, who had become accustomed to an open field across the street were strongly opposed.
Over three-hundred persons mounted an attack in opposition to the rezoning. Their arguments were two-fold -- property values would decrease with condominiums across the street, and condo's would attract lower income persons who would undoubtedly disrupt the neighborhood. These arguments were presented very emotionally by the residents. The claims of the neighborhood were rationally countered by the developer's appraiser, who was a practicing member of the American Institute of Real Estate Appraisers. He testified that property values would likely increase because an unsightly weed field would be replaced by a well landscaped and designed condominium project. The fear of low income or younger residents within the neighborhood was countered by a market analyst who testified that the sale price of the condominiums within the development would exceed the purchase price of the average home in the surrounding neighborhood.
Despite the evidence of many highly qualified witnesses and the testimony of Denver's own planning staff, council made the popular decision. Not only was the popular decision made, but it was done so in a resounding 13-to-0 style. Yet, because of the onerous burden of proof required of an applicant, the case was never taken to court for fear of losing. The chances of getting a court to overturn the decision were virtually zero.
The fear of losing in the courts serves as the basis for the second quasi-judicial case study. As previously discussed, if any competent evidence exists to support a decision of a quasi-judicial body, the decision will stand. The word "any" is emphasized above, in that the courts have not required a preponderance or a majority of evidence to uphold a decision
which has been made. This has created a tactical warfare whereby proponents and opponents battle in persuasion, as opposed to facts.
In Eagle County, Colorado, a request by a gas and electric company in the state was before the local decision making body for a special use permit to build a high-voltage electric transmission line through the mountainous county.^ The applicant, in appearing before the county commissioners, had expected a large show of opposition, and resultantly, used a contingent of six witnesses before the group. These witnesses, each of which would qualify in most state courts as expert witnesses, provided hours of testimony to the decision body.
The opponents to this project were highly emotional. Their testimony in opposition included a crying housewife who believed cancer was caused by high-voltage power lines, a ski-lift operator who testified as an expert in land use, and a chiropractor who provided testimony as an expert in electromagnetic radiation. Perhaps more effective were the petitions bearing over one-thousand names in opposition to the project.
As in the previous case study, the project proponents clearly held an advantage both in expertise and evidence in support of the proposals. Another similarity included the support and positive recommendation of the jurisdiction's planning staff. In this case a 2-to-l denial of the special use permit occurred.
Because of the posture of the courts, the realization that judicial relief is extremely rare, and political clout, the applicant felt it easier to persuade one of the two opposing voters than to secure a judicial ruling in its behalf. As such, a silent campaign was initiated to persuade one of the decision makers that it was politically expedient to change positions and
vote in support of the special use permit.
The applicant had subsequently decided to submit a new request for the facility with slight alterations from the first rejected application -- just thirty days after defeat. In the hearing process, near repeats of the previous hearings occurred, with identical witnesses and testimony. However, being successful in its campaign to change a county commissioner's mind, the vote was now 2-to-l in favor of the request.
As the case studies exemplify, the quasi-judicial process has not removed the political whims from decision making. It has not placed the judicially required due process or evidentiary proceedings in a more objective light. It has merely taken a legislative process and changed the name.
Despite the judicial decrees that such decisions are not popularity contests, many examples are available to show that they are.
Administration of policy by appointed representatives of the people is a process which demands the highest of ethics. It is nearly impossible for someone such as a city manager or city attorney to avoid administrative decisions in which they have some type of personal or prejudicial interest. The result, in recent years has been the adoption of a Code of Ethics for City Manager's which is broad and strong. Such has not always been the case.
The Town of Islip, New York, has the dubious reputation as the most corrupt city in the United States.^ This is the result of the mid-1960's when the community was ran by a reputedly corrupt administration. Among the public administrators who interacted in the administrative decision process, were the city attorney, mayor, councilmen, and appointed board members.
Among the minor administrative abuses were such occurrences as the city
attorney negotiating to purchase property in which he owned a 20% interest. Unable to settle upon a purchase price, the city attorney initiated condemnation against himself and the others, resulting in a $45,000 profit for the attorney. Because of New York's corporate laws, the attorney's interest in the property was disclosed only through a Grand Jury investigation.
Larger administrative abuses in the Town of Islip involved the appointed boards of the community. The airport authority was charged with the site selection and development of a regional airport for the area. The authority had hired one of its members as a special consultant for the project. Upon completion of a study, a site was acquired and infrastructures developed.
As is true for nearly all airports in the world, the adjacent lands began to develop and were worth literally millions of dollars. The principal land-owner of the adjacent property was a private corporation. In this case, the Grand Jury discovered that the airport authority member working as a consultant, purchased much of the airport's adjacent lands. The authority member later explained that the investments which were made were only what "any other ordinary citizen" would do.
Zoning changes were the foundation of Islip's corrupt administration of policy. In 1967 a small local landowner had requested a zoning change. The owner's request involved a change which would allow higher densities of residential use. The Town Board denied the request because it would conflict with the town's master plan. A corporation then bought the property, and was successful in the identical zoning change with the same master plan.
One of the corporate owners was the majority political party leader in the county. Such occurrences were common within the city.
Other examples of questionable administrative conduct included:
Two councilmen who voted for a zoning change and subsequently received construction contracts to work on the approved project;
Two officials who sold a tract of land for a $62,000 profit, half payable immediately and the remaining half due after the successful rezoning of the land;
Two officials purchased property from a developer at below-market prices after a successful rezoning;
Two officials made a $60,000 profit by selling lands to a builder seeking a rezoning.
While a person may rationalize that administrative abuse was a product of the 1960's, Aurora, Colorado, has also been a location of administrative abuse in recent years.^ a member of the local planning commission purchased property contiguous with property owned by a developer who was preparing to announce the creation of the "Disneyland of Colorado". This was to be an amusement park which surpassed the grandeur of all parks in the world.
Each of the planning commission members had been provided with a similar opportunity to purchase property. Only one member was found guilty. The development never occurred, but left the municipal government with a scar of corruption.
The most common administrative weakness is much more subtle. Such weaknesses require no case study in that they are very common. Common occurrences include differential treatment of applicants, based upon personal prejudice.
It is not uncommon to see a government entity require higher bond monies from unfamiliar developers in the area, regardless of merit. A community may allow one developer to build at higher densities than another, simply based on whims. Witnesses will vary in credibility among boards, because of famil-
iarity. It has become stylish to distrust the expert. Even the city manager, who consciously attempts to remove personal bias in administration, finds the task nearly impossible.
An outstanding analysis of land use decision making by referendum has been rendered by the courts. Although Eastlake v. Forest City Enterprises involved the right to amend a city charter to allow referendum, it also involved a specific land use request, denied by popular vote.
The case arose under rather remarkable circumstances. A local developer in Eastlake, Ohio, had previously secured a zoning change to allow the first highrise apartments in the community. The developer had successfully received a positive recommendation from the planning commission, as well as the enacting vote of city council. Four months later, in the sequence of development, the landowner submitted a "parking plan" for the apartment complex. Within the four month period, the city had adopted a charter amendment which required a referendum election for any zoning change, with a 55% voter approval. The city planning commission and council refused to approve the parking plan, prior to referendum. The matter was placed in referendum and failed to secure the required 55% majority, leaving the owner with approved zoning, without approval for final construction permits. Suit was brought against Eastlake.
The District, and Supreme Courts of Ohio agreed with the developer.
Among the findings was the fact that the city charter amendment failed to recognize a distinction between city council's administrative and legislative capacities in reviewing zoning matters. While the power to zone or rezone via passage of an ordinance was clearly legislative, the granting of relief from an ordinance is administrative. The first was determined to be
subject to referendum, the latter was not.
The lower courts also found the idea of subjecting a parking plan to a vote of the people as repugnant to due process guarantees of the Fourteenth Amendment, and labeled the process as government by caprice. The court found that the public had virtually no standards to either approve or disapprove of the requested action, and as a result, individual rignts were placed before the public for the articulation of unreasonable whims.
However, the United States Supreme Court could not let it appear as if the rights of the people were being limited. They overturned the findings of the Ohio Supreme Court by a 6-to-3 vote. The court did not distinguish between legislative and administrative functions, and instead assumed a legislative title on municipal zoning actions. Among the findings were that direct participation by the people in legislative enactments is not a delegation of power because such participation is an inherent reserved right of the people. Further, referenda do not in and of themselves violate due process protections. Quoting a decision of a California court, the Supreme Court said:
"A referendum, however, is far more than an expression of ambiguously founded neighborhood preference. It is the city itself legislating through its voters -- an exercise by the voters of their traditional right through direct legislation to override the views of their elected representatives as to what serves the public interest.
The primary question which was never adequately addressed, to the satisfaction of this writer, was whether land use decision making is exclusively legislative, or in fact, are some actions administrative or quasi-judicial in character. If such decisions were construed to be other than legislative, it is doubtful that referenda would be allowable. The narrow view of decision making in the governmental process has prevailed.
The introduction to this chapter suggested that inefficiency in the land use decision making process might become obvious. By inefficiency, this is saying that the process of making decisions is over time consuming, repetitive, costly, and uncoordinated. Although many examples are available to show the tendencies for inefficiency, the previous case study relating to a special use permit request for an electric transmission line was an example which required fourteen public hearings in a fifteen-month period, only to conclude in litigation.
Sohio Oil Company provides an interesting case study of its attempt to build a pipeline from California to Texas. It seems that the West Coast of the United States is faced with more bulk unrefined petroleum than they are able to process. This is largely due to the crude that is shipped to California from the Alaskan oil fields. The environmental regulations of the Pacific Coast states are too rigorous to allow additional refinery capacity to be constructed. Sohio's solution was to propose construction of a pipeline from California to Texas where the laws would allow for new refineries.
The pipeline was originally planned to cost about $1 billion, and take about three years to construct. This was in 1973. As the company began to pursue the development of this project, over seven-hundred permits and clearances were to be required from government entities ranging from local improvement districts in five states, to the Federal government. After six years of battle, Sohio announced the abandonment of their plans, after spending nearly $300 million in design, engineering, legal fees, and other associated costs. The estimated- cost of the project at the abandonment was $6.7 billion, due to both inflation and environmental add ons.
In another case in which this writer was personally involved, a private reservoir was to be constructed in Colorado.^ This reservoir was to contain about 60,000 acre feet of water, primarily for agricultural use.
This project required fourteen permits ranging from a permit to extract sand and gravel for construction purposes from the Mined Land Reclamation Board of the State, to a U.S. Army Corps of Engineers 404 Dredge and Fill Permit. When the project was initiated, the cost was estimated at $13.2 million. Only thirteen of the fourteen permits were secured and as a result the project remains unbuilt as litigation proceeds. Today's cost for the project is over $32 million. An interesting side to this project is that the Colorado Land Use Commission in 1978 considered forcing the local government to hold a public hearing to determine if they should adopt regulations controlling the construction of the reservoir. The Land Use Commission was worried about the "uncontrolled" development which would result, without its intervention.
Although the above cases are much more dramatic than the consideration of a land use matter such as a proposed grocery store, they serve to exemplify the problem at hand. The process by which land use decisions are made has become a dinosaur. The slow and lethargic process has forced development review to become more costly, less responsive, and not significantly improved from the 1920's process. Although many will argue that the costs of development have not been significantly affected by regulations, the costs of preparing a single family lot for residential development in 1971 averaged about $3,500.^ This included land, sewer and water taps, sidewalks and curbs, streets, other infrastructures, and an 11% profit margin. Today, the cost of a sewer and water tap alone, exceeds the total development cost just nine years ago. Today's total for the same lot approaches an average of $25,000.
Fragmentation of the land use decision making process is a significant problem which appears as the major cause of inefficiency. There are simply too many bodies, elected, appointed, and otherwise, with their hands in the process. Even the local grocery store that wishes to build the neighborhood outlet, will face three public hearings, by three completely different bodies in many municipalities. The developer may face the zoning change with both an appointed and elected body, the subdivision approval with an appointed planning commission and elected body, and possible review of the signage on the property by the appointed board of adjustment. This process would take between eight and twelve months under many typical zoning ordinances of Colorado cities.^
Perhaps the problem is the result of the age and origin of the development review process. Planners and administrators, in a majority of states, are forced to address 1980 land use problems with enabling legislation modeled from examples written in the 1920's. Another suggestion is that the process of popular election has bred the proliferation of appointed boards and commissions through post-election appointment. Whatever the cause, ample examples of the tendency of decision making to be inefficient are available.
The above case studies indicate the manifestation of weaknesses in land use decision making in certain operations of government. Abuse of the decision making process has occurred. As the case studies showed, the legislative process may place competing rights at the will of the legislator with little or no judicial remedy for aggrieved parties. The judicial process appears in theory, to place competing rights in a factual posture, devoid of political preference. In practice, case studies show a tendency for the process to become no more than a popularity contest in which competing inter-
ests fight for an upper hand. The administrative process is effective only in the absence of temptation and corruption by the administrators. Case studies have also indicated that such is not practical in an imperfect society Referendum places competing rights to popular vote. Individual rights are not nor should ever be placed before the public for disposition.
Each decision making process has been shown to possess weaknesses. Further, a tendency for land use decision making to be slow, uncoordinated, and costly, marks the process as inefficient. While it may be suggested that blatant abuse and gross inefficiency are rare, the subtle problems which range from duplicate hearing processes, lobbying, and conflict in interest, exist within the system. This is not to condemn all the components of the decision making structure in government, merely to suggest that as we strive for perfection and integrity, some areas need more attention than others.
CHAPTER 4 GAMESMANSHIP
The first three chapters of this thesis have sufficiently shown both the ambiguities and weaknesses which exist within public land use decision making. The remainder of this thesis will present two options which are available. One is to cope with the existing decision making process, but to play the game in a more strategic manner. The second is to reorganize and restructure public land use decision making.
This thesis is by no means the first to suggest that planners and administrators should develop gamesmanship. Several books have been written which portray zoning actions as a game and prescribe elaborate strategies to win a favorable decision. Among the books are "Strategy and Tactics in Municipal Zoning" and "Winning at Zoning".* This chapter will present some fundamentals to assist planners in utilizing the weaknesses of the decision process for competitive advantage.
Although some cook book approaches may be effective in securing an ultimate decision, the real strategy which is critical to planners is the ability to sense and know where decision makers will stand on an issue. Even the best strategy available will do little to influence the decision maker who has already made a mental decision. The most skilled lobbyist knows precisely how legislators will vote, well before any hearings or committee reports. As such, the lobbyist must advocate before any public hearing.
In some respects, a planner and/or developer is a lobbyist. One difference is that the Congressional lobbyist expects to "win" about 50% of all battles.In public land use decision making, 95% of all proposals are ul-mately approved.^ This does not mean that the pro-development advocate is
winning 95% of the battles and the anti-development advocate 5%. Success is not absolute. Concession is the best indication of an advocates effectiveness. Often times, the winner of a land use decision such as a zoning change, is not convinced of victory after counting the concessions.
The public hearing is often heralded as the final battle ground at which the Waterloo will occur. Over the last five years, this writer has personally participated in over sixty public hearings on land use matters and observed about two-hundred land use decisions. These decisions have ranged from a zoning change of two residential lots for a Baptist Church which took no more than two minutes, to a special use permit for an electric transmission line which took fourteen public hearings and fifteen months, only to result in litigation over the request. A variety of tactics have been observed in the process, ranging from totally effective to complete failure.
Regardless of the framework within which a decision is to be made, the most important fundamental for the planner to consider is to make the decision easy for the decision makers. In other words,^irrespective of the goal for either positive or negative actions, the planner must seek to make a decision popular and politically expedient. If the goal is to seek project approval, be equipped with a positive staff report, a resolution of support from the Chamber of Commerce, local merchants associations, and other local community groups, as well as familiar faces in the community to support the request.
As an advocate for denial of a requested action, it is similarly essential to be equipped with an appropriate arsenal. Unlike the judicial process, evidence may not be enough for a decision to be made.
To make a decision popular, quality is much more important than quantity. This truth is often overlooked. The petition is rarely effective in a land use proceeding simply because it is based upon quantity. The number of sig-
natures on a petition is not nearly as important as the names upon a petition. Twenty select persons who are known to be influential within a community will have equal or greater influence than thousands of names gathered at random from a grocery store.
An excellent example of this truth was evidenced in one case where project opponents presented petitions with 1,500 signatures in opposition to a land use request. The project proponents in analyzing the petitions found over 1,200 of the names to be residents of communities other than that in which the decision was to be made. Another 100 were illegible, duplicate signatures, or names such as Santa Claus, Smokey Bear, Joseph Stalin, etc. Additionally, many signatures were clearly one person signing six or seven names. In the final analysis, the project proponents found only about forty valid signatures of registered voters within the county. The petition, which was the result of many hours of labor, became an excellent tool for the proponents instead of the opponent.**
An example of quality as opposed to quantity is also evidenced in the above case. The project proponent, through research, learned who were the close personal associates of the decision makers. Upon thorough research, common ties were discovered with social confidants, and advocacy was made indirectly. In this case, a business associate of a key decision maker was also a close friend of a project proponent. The business associate was persuaded to lend support to the proponents in the next casual business encounter with the decision maker. This contact was not only influential, but singly did more to persuade the decision maker than any evidence or petition.^
Having one key supporter of a project behind the public's view is far more valuable than any organized group of opposition which is vocal.
The above practice may be termed, "Stacking the deck". The skilled
planner will research not only the subject at hand, but the decision makers as well. Once the evidence is prepared, if opposition is expected, it is the appropriate time to begin to stack the deck. Support for a position of advocacy must be developed. While it is rarely effective for a planner to directly contact a decision maker outside of the public's scrutiny, a decision maker's business associates, fellow church goers, next door neighbors, campaign workers, etc., can be extremely helpful. Such contact must not be made as a third party attempt to persuade. Stacking the deck calls for casual interaction by close associates, who may be supportive to a cause. The skilled planner will recognize when to and when not to attempt such actions.
Another useful strategy to remember is to never expose the complete game plan before the hearing process is over. Under many of today's processing procedures for land use applications, two or three public hearings may be required. As stated earlier, this writer personally participated in one proceeding in which fourteen public hearings on the same subject were held. The skilled opponent, while he may be unqualified, clumsy, and inept in addressing a land use proposal at the first hearing, can be a highly competent expert at the second or third public hearing. If either the proponent or opponent to a project exhausts his arsenal of arguments before the final hearing, either will be prey for the other in succeeding encounters.
To reserve a repertoire of arguments is not to suggest that any type of secretive approach is necessary. Instead, make certain that the arguments of support, data, renderings, and other exhibits, evolve and mature with time. In one particular series of hearings in which this writer participated as a proponent over three successive hearings, the question of the potential adverse health affects of electric transmission lines was hotly debated. At the first hearing, the proponents provided only a brief statement as to
personal knowledge of scientific research. On the other hand, the opposition presented six scientific reports on the hazards of powerlines. For the second public hearing, the proponents had an expert in radiation physics provide a slightly longer oral presentation. The opposition again used the same six reports. For the final hearing, the proponents presented a two-hundred entry bibliography, as well as reports from the National Science Foundation, National Academy of Sciences, and World Health Organization. The opponents, again with the six articles, cried foul and suggested that changing testimony had not allowed them time to examine the evidence. The decision makers disagreed and recognized that supporting evidence evolves with research.^
The use of emotion can also play an important role in decision making.
It may either establish or dissolve the witness credibility. As with stacking the deck, the skilled planner can pick allies for the hearing process which effectively use emotion. The most successful display of emotion in a public hearing that this writer has witnessed was by a housewife testifying in the above-referenced hearings on the powerline which ran through the local neighborhood. Starting the presentation quite calm and collected, the woman commenced to describe the fear within the neighborhood that electromagnetic radiation from the powerline caused cancer. Soon the woman's voice began to crack and her speech slowed as a tear or two ran down her cheek. Then apologizing to the council, because she wasn't going to cry tonight, she explained that her closest friend was undergoing chemotherapy and she had just this afternoon visited her after a treatment. Regardless of what a physicist or medical doctor would present in rebuttal, they were outclassed by emotion.
Other effective displays of emotion have included one hearing at which a city was proposing regulations to control homes for the developmentally disabled. The opponents to this ordinance showed up with six or eight handi-
capped citizens from the local group home. These citizens were all well recognized in the community as they spent a great deal of time on the city's streets waiting for public transit. Of course, the opponents pleaded quite effectively that the handicaps should not be treated any different from the average citizen. The tenants of the group home sat together, silently gnawing at the hearts of the council. The opponents not only won the battle, but received apologies from the decision makers for being so short-sighted.^
Emotion can also destroy a position of advocacy. In one series of public hearings in which this writer testified, one opponent became so enraged by statements made by proponents that the person would stand up and interrupt, merely to call the witnesses liars. Doing this on several occasions, when his opportunity to speak arose, he was pictured as an extremist, and spoke illogically.^
The initial reaction of a witness when called a liar, or when performance or integrity are questioned, is to offer a rebuttal. However, experience has shown that a silent response is generally more effective. The planner can use vocal opposition to an advantage by avoiding direct interaction with a crowd. A planner must answer only the questions raised by the decision making body. If the body wishes for a rebuttal, the decision makers will ask. Do not get into an argument with an audience.
The above suggestion is not meant to imply that a participant should avoid getting personal with witnesses of opposite points of advocacy. In the instance of credibility or history of performance, it may be appropriate to get personal. An example includes a hearing at which a "doctor" testified about the likely effects of electromagnetic radiation upon humans. This "doctor" was a student of the Rocky Mountain College of Holistic Arts and Medicine. The doctor operated an herbal pharmacy in a small town. If not
for the astute reaction by a proponent in attendance, the good doctor would
have been assumed as an M.D.
In the case of past performance of a project proponent, always check to see if a developer delivered on development promises. A decision maker will be anxious to know that a developer's commitment to landscape in another projectmeant twenty-two tons of river rock and six small junipers. By examining the history of a developer, concessions may be required that ensure performance. In this case, getting personal will help.
The use of ex parte communication must be carefully evaluated. As mentioned earlier, one phone call from the right person is better than a hundred general calls. As a rule, the applicant who faces considerable opposition in a land use request should make a very obvious public effort to avoid even the insinuation of unorthodox action. Under the quasi-judicial process, a person may be violating the law through ex parte contact. The opponents will take every opportunity to accuse both the proponent and decision maker of foul, regardless of the accuracy of an accusation. In the uncontested land use request, many times a decision maker expects ex parte contact from the applicant, almost as if it were a part of the information network. Avoid being the subject of accusation for inappropriate communication outside of the public's scrutiny. It will tend to complicate an already complicated hearing process.
Lastly, do not forget the evidence. Nearly all zoning resolutions and ordinances enunciate some standards for conformance and approval. Likewise, special use permits, subdivision, and other land use requests require performance promises and provide development standards. Avoiding the technical data in a public hearing is usually acceptable so long as it is encompassed in the subject application. The record should contain oral confirmation of
the facts that the requested action meets the criteria for an affirmative decision. The record should also contain the special design considerations which are to be implemented for concession purposes. These often include additional public land dedications, extra landscaping, special screening or lighting, etc. If a request does not meet compliance requirements, explain why the exception should be made. The oral record of a proceeding and the written permit application is normally the extent of evidence received by a court if judicial review is necessary. As such, it must be complete.
All zoning ordinances are predicated upon the protection of health, safety, and welfare of a community. Always take the opportunity to relate a land use request to these abstract values. The creative planner can provide a multiple list of how a project either protects or infringes upon these community concerns. While the planner should avoid the bizzare or far-fetched suggestions, statements on the contribution to tax base, the provision of a necessary community need, beautification, or other similar ideas are often overlooked.
The whole concept of strategy for advocacy often has a negative connotation. Perhaps this accounts for many of the business losses to pro-environment groups in the 1960's. Many business interests were simply out strategized. Recently, development advocates have become more skilled in gamesmanship.
The skilled planner can read a decision making body and merely direct and orchestrate persuasion for the advocated position. On other occasions, the planner must be forceful and pointed to achieve an objective. Often the technique is more important than the product.
CHAPTER 5 REORGANIZATION
While gamesmanship represents a cosmetic solution to cope with the ambiguity and weaknesses of decision making, reorganization and restructuring of the process has the potential to make land use decisions efficient. Before reorganization can be explored, criteria must first be established as to what is a good land use decision. In many respects, a good land use decision is the product of an efficient decision process. To this end, botli the criteria for a good decision and an efficient process will be discussed.
First and foremost, the good land use decision is based upon evidence, as well as community plans and goals. Conjecture must be removed from decision making, as must political spoils. When community policy is the question at hand, popularity may have a place in a decision. However, when adjudication of specific property rights or other ministerial functions are performed, popularity should not be considered. This is to say, a bifurcation of intent and effect must be defined for land use decisions.
To elaborate upon the above precept, a comprehensive plan is generally thought of as a governing policy statement for local government. The zoning ordinance and map is the governing law for local government with regard to land use. Typically, the community policy statement and the statement of law, do not agree for the entire geography of the local government. Such occurrence as legal non-conforming uses and agriculturally zoned future growth areas exist in virtually all cities. The bifurcation of intent and effect then pertains to land use decisions in regard to determining when an action is a policy function which affects the comprehensive plan and when an action is an amendatory process occurring within the intent of the existing compre-
To explain the above by example, a zoning amendment may be proposed in a community. It makes absolutely no difference if the applicant is the city, a group of fifty landowners, or a single landowner. Further, it makes no difference whether the change involves five-thousand square feet or five-thousand acres. If the proposed amendment is in accordance with the existing comprehensive plan, the decision is administrative. If the amendment is not in accordance with the comprehensive plan, than the applicant should apply for a comprehensive plan amendment, not a zoning amendment, because the decision is a policy question.
In practice, cities have made land use decisions backwards. The responsibility for developing community policy through comprehensive planning has been placed upon the appointed planning commission. The commission will spend months on policy questions which will be ratified by a vote of city council with little debate. On the other hand, zoning changes, although they are typically reviewed by a planning commission for a recommendation, spend months being debated by city council. In the present decision making process, the appointed administrative body, or planning commission, spends its efforts upon policy questions, while the elected policy body, or city council, spends its efforts upon administrative questions. Bifurcation of intent and effect will provide for the transfer of the above roles.
Other land use decisions, such as general plan reviews, subdivision approval, and special use permit review, are strictly administrative in nature. These decisions should be based upon performance criteria specified in an ordinance or resolution. Again, legislative bodies nearly always assume the responsibility for these administrative acts. It is no surprise that political interests cannot be removed from adjudicatory acts, when the
elected official participates directly in administration.
The above analysis makes obvious one realization which must be present in each land use decision. Namely, there is a time when public opinion and politics are subserviant to individual rights. A good decision recognizes the fundamental liberties of individuals within the guiding context of community policy. Individual dispensations of justice are not the public's opportunity for policy revision. The development of the comprehensive plan is the appropriate forum.
Last, in regard to a good land use decision, a compromise is not necessarily representative of an equitable and fair solution. The typical example, which this writer has seen, is the developer who agrees to larger setback requirements or greater percentages of open space, merely to appease opposition. A classic case involved one developer whose land was zoned P.D. --planned development. This zoning required 20% landscaping. In submitting the required general plan, the developer indicated a 25% commitment for landscaping. Led by the local city manager, the city wanted a 30% commitment.
Tne developer consented.
In the above example, the occasion to mandate landscape requirements is not in the administrative process but in the policy process. If the community wanted a 30% commitment, the ordinance should have been amended, not the development plan. This truth is manifested in the dissent opinion of the U.S. Supreme Court in Eastlake v. Forest City Enterprises. Had Eastlake chosen to make zoning amendments which were contrary to the city's comprehensive plan, subject to referendum, perhaps both the dissent and this author would be more comfortable with the decision. However, it was the parking plan of the developer, to be constructed within the approved zoning district, which the city required to be submitted to vote. Again, during
administrative functions of the regulatory process, policy is not the question at hand.
The good land use decision making process is consolidated. This consolidation should provide for conceptual review of land use requests, prior to the investment of either large sums of money or time into the proceedings.
The present process requires too much time and money for the developer to back out, if a request fails. After investing thousands of dollars, the option of litigation becomes more desirable. There is no excuse for fourteen public hearings on a land use request. In this example, all of the relevant data, information, questions, and public opinion was expressed after no more than three hearings.
The public must be afforded the opportunity to speak. However, time and content limitations are important. The public must know if policy is at question or individual rights, and accordingly, should be advised of the rules which govern each type of proceeding. Too often individuals who speak, provide chronological account of their heritage and survival as pioneers, only as an attempt to challenge the developer to divulge his place of birth. Cacophony and empty testimony has made adjudication a marathon. The good decision process provides for public input with strong control of the proceedings .
Additionally, the good decision making process does not involve a myriad of governmental bodies. Without voicing a preference at this instant as to the organizational or functional characteristics of the decision body, a single review entity should control all administrative land use decision processes. Policy may be legislated or voted upon in referendum, and referred to a dozen advisory boards. However, the administrative function should involve a single decision making body for resolution.
Land use decisions, regulated through zoning ordinances and liquor laws, are the only governmental functions where law is enforced by the elected legislator. One can imagine the likely result of allowing a city council to enforce the speed limit. Political concerns would soon render the speed limit unfair and ineffective. Pro forma administrative tasks are the responsibility of the administrative branch of government. Land use decisions are an historic anomaly of American government theory, in this regard.
The American Law Institute (ALI) has drafted a model land development code which provides for procedural simplifications in the development decision process.* Though the remainder of this chapter will deal primarily with the solution as to what government arm may best make pro forma land use decisions and under what procedural framework. The ALI code provides a foundation for the process. This model code has not been adopted by any state, although many states have variants of the procedures prescribed.
One fundamental of the ALI approach is a "one-stop shopping" concept.
A developer makes application for either a general development permit or a special development permit. The distinction between the two processes are similar to the distinction previously drawn between policy and administrative functions. That is, if a decision is being made within the restrictions of existing laws and plans, compliance is the primary issue. This has been labeled an administrative act in this thesis, and a decision requiring general development processing in the ALI model. Should a development request require amendment of existing laws and plans, this thesis labeled the decision as a policy question. The ALI code requires a special development review process. As may be assumed, the submission requirements for the general development permit are more lenient and simplified compared with the specific development proceeding.
In both cases, the process is collapsed into a single hearing process, by a single decision making body. This body is designated as the "Land Development Agency", and is not defined so as to leave the selection of the appropriate composition of the agency to the local government. The single hearing process calls for a one-shot approach where the citizen participant is afforded a public forum as well as the applicant. This prevents the psychological warfare and gaming which accompanies multiple hearing processes.
The single decision agency allows for one entity to receive all evidence pertaining to a development. This avoids the fragmentation which exists when a multitude of decision bodies each require different submission contents. Competing interests may be evaluated from both an inter- and intra- specific perspective, and the decision for final action rests squarely upon a single body. This should be desirable to both the proponent and opponent.
States which have adopted decision models for development which approach the ALI concept, have generally limited the applicability of the process to certain classes of development. In California, a one-application-one-hearing process applies to regional energy facilities.2 in this state, the process has been affectionately labeled as "one-stop stopping" as opposed to "one-stop shopping". In Washington State, a permit consolidation and coordinating process exists. This calls for one super-hearing before all entities in common assembly.^ in Colorado, the State Land Use Act, in its original version, was proposed as a means to define land use decisions which were of state interest, and thereby accomplish coordinating functions.^ in its final form, the act became badly disected into confusing legislation whereby a local government processes and decides items of state interest in nearly identical fashion to local matters. The only difference is that the local government must provide a copy of any application for an activity of state
interest to the State's Land Use Commission. The authority of the LUC at that point is to simply comment.^
Under the ALI model, the framework within which the Land Development Agency functions is not defined. This writer would suggest that in all but the broadest of community policy questions, the fairest and most equitable framework for decision making is the quasi-judicial process. This is the judicially defined concept of quasi--judicial proceedings, not the implementation models set by local governments. In the broad policy questions such as adoption of local comprehensive plans or zoning ordinances, the legislative label may be appropriate.
The fundamental fairness of the quasi-judicial process meets the established criteria for both a good land use decision and decision making process. Again, this pertains to the theory adopted by the courts. Such a decision format is predicated upon evidentiary proceedings with guarantees of due process to protect individual property rights and community policy. The quasi-judicial process avoids political spoils and is direct and to the point. Ample opportunity for public input is available. The question of who may best make a quasi-judicial decision remains as the only variable.
The failing of the quasi-judicial concept as applied by local governments to land use proceedings is not totally the fault of the elected decision maker. The courts have placed an onerous burden upon the elected official by requiring them to act judicially, as opposed to legislatively. This thesis would suggest that it is manifestly unfair to place the city council person, or county commissioner in the posture of an adjudicator of specific competing rights. The legislator should adjudicate between competing values
and policies from a community perspective, not individual rights.
Perhaps the judicial branch of government understood the uncomfortable posture in which it placed the elected official. This conjecture is supported by the occasional reminder which the courts provide regarding popularity contests^ Or perhaps the courts were too timid to suggest that the wrong entity within the government has been making land use decisions.
An independent hearing board could provide for implementation of the quasi-judicial decision making process. Such a board has many alternate compositions which would be interesting. A few possibilities include:
A five member board composed of lay persons selected in the same manner as a judicial jury. These members would be without prejudice of any type, chosen at random from a community. They could receive compensation for hearing board duties. The difference would lie in the ability to adjudicate by majority vote, as opposed to unanimous vote. Any ex parte contact with hearing board members could be a civil crime. A hearing board could be convened monthly and handle the accumulated land use requests. If the job became overly cumbersome, as in larger cities, weekly or bi-weekly boards could be established.
A seven-member board composed of three government representatives, one from each of the tripartite arms, and four lay persons selected using jury methods. The three government representatives could be:
A legislator council person A city manager or mayor A senior judge, and
thus provide a complete forte of talent.
A three member board composed of the above-referenced government
representatives. Again, majority vote adjudications would be appropriate.
Another equally innovative approach would be the creation of a tenured hearing board, employed by the local government. If the local government was too small for a full-time hearing board, a regional hearing board could be established and shared within a geographic region. The purpose for tenure is to remove the threat of acting outside the wishes of the local government. A tenured administrative judge, appointed by the local legislative body and ratified by public election, could also serve as the decision maker.
The tenured board or employee approach would allow a competent planner, architect, or any of a host of other qualified individuals, to be selected for a decision making function. This would remove the negative prospect of the unqualified jury, making decisions based on showmanship. On the other hand, by placing persons of professional stature, in a decision role, they may assume the super-planner function, either consciously or sub-consciously.
A variant of this concept, has been applied in many communities through the use of hearing examiners. Typically, the decision making function is reserved for the legislative arm of the government, but a hearing examiner is used as a stabilizing force. In the evidentiary proceeding, the hearing examiner will issue a finding of fact. If the findings of fact of the hearing process does not support the decision as made, automatic rehearing or referral to district court occurs. This process provides for two separate decision making functions which have built in checks and balances.
All of the above alternatives have pros and con's as with the processes
previously discussed. With the exception of the hearing examiner, the elected legislator is virtually removed from the adjudication of competing rights.
In light of the distinction drawn between individual rights and community policy, this must be classified as an advantage. Die hearing examiner approach is a compromise which recognizes both the abuse potential of administration, and the fetish of elected decision makers to retain pro forma decision responsibilities.
The principle argument against the reorganization of decision making as suggested above is the placement of decision making powers in the hands of those who have no accountability for error. If the independent hearing board or the tenured decision maker errs in judgment, the local government bears the burden or hardship from the mistake. While the local government also bears the mark of local legislative error, it at least has a fitting scapegoat at re-election time. The hearing board could not be recalled or made accountable in any meaningful fashion. In this same respect, judicial juries have convicted innocent persons. Though this does not justify error, it merely points out the inherent truth that the process of judgment is an art, not a science.
This chapter has suggested and supported the concept that local governments have transposed the roles of administrative and legislative bodies, with regard to land use decisions. Legislative functions have historically been policy oriented with the enactment of law as the result. In the process of land use decision making, as typically practiced by local government, the legislative branch has assumed an interpretive and enforcement function which is ill placed. To re-orient local government entities relative to constitutional organic prescription, serves as a potential solution.
This chapter also suggested the creation of a local land development agency as a solution. While conceptually the agency offers a unique potential
to re-orient land use decisions, in practice the solution is not likely to occur. Political empire building is a personal psychological phenomena, not an anomaly of American legislators.
Lastly, the hearing examiner is a band-aid solution which may help. Though it treats only the surface of inefficient and nebulous land use decision making, it is somewhat better than status quo.
CHAPTER 6 CONCLUSIONS
"How land is used, in short, is not so much the result of careful planning or high-minded philosophy. It is the upshot of financial and bureaucratic pressures, of compromises, court decisions, and politics. Above all, politics.
If this thesis has failed to exhibit the truth of the above quote, it has missed its mark. The next logical question to ask is, so-what, why is it relevant to the planning profession to know that land use decisions are ambiguous and inefficient.
This thesis has suggested solutions which have a slim likelihood of raising the eyebrows of local government. From a pessimistic perspective, there is little hope to change land use decision making in more than a cosmetic manner. As such, planners will be faced with the frustrations of political decision making for far into the future. Then again, is the process really one of frustration?
Active involvement in local government land use matters have caused pessimism in the planning profession. The profession which not only looks into the future, but takes an active role in shaping it, has little room for the pessimist. Yet, time and time again, the graduate of planning school is deflated and defeated after repeated participation in the process. Idealism and the visionary role of the planner is challenged, defeated, and ultimately compromised. The dreamer eventually becomes just another administrator.
Planners must develop thick skin while shaking the trees. The planner must learn to lose, face criticism, and negative public reaction. After all, if society perceived the planner's visions in a context of complete under-
standing and endorsement, planning would not be a profession. In regard to shaking trees, this is cliche which suggests that planners should arise controversy. Planners are only properly serving professional standards in identifying extremes. The planner is not only professionally obligated to dream, but is socially expected to do so.
The traversty of justice in land use decision making is not so much the process, as it is what the process is doing to the planner. Pessimism has the capacity to kill planning decision making does not.
BIBLIOGRAPHY OF FOOTNOTES
1-1 272 U.S. 365 (1926). Euclid v. Ambler Realty.
1-2 Anderson, Robert. American Law of Zoning. 4 vols. New York: Lawyers' Co-operative Publishing Company, 1968.
1-3 507 P.2d 23. Fasano v. Bd. of County Commissioners of Washington County
542 P.2d 371. Snyder v. City of Lakewood.
1-4 426 U.S. 668. City of Eastlake v. Forest City Enterprises, Inc.
1-5 Compare: 426 U.S. 668. (United States Supreme Court) with 324 N.E.2d
740. (Supreme Court of Ohio).
1-6 Craig, G."Discretionary Land-Use Controls the Iron Whim of the Public". Proceedings of the Institute on Planning, Zoning, and Eminent Domain, 1971.
1-7 Merrill, Maurice H. "Local Administrative Agencies". Vanderbilt Law Review 22 V.L.R. 775, 1969.
1-1 Merrill, Maurice H. "Local Administrative Agencies". Review 22 V.L.R. 775, 1969. Vanderbilt Law
1-2 202 N.W.2d 892. Denney v. City of Duluth.
1-3 Holman. "Zoning Amendments The Product of Judicial Action". Ohio State Law Journal 33 O.S.L.J. 130, or Quasi-Judicial 1972.
1-4 202 P.2d 38. Lockard v. City of Los Angeles.
1-5 . Oren, Craig N. "The Initiative and Referendum's Use in California Law Review Vol. 64:74, 1976. Zoning".
1-6 Ibid 1-2, Denney v. City of Duluth.
1-7 Ibid 1-3, Holman.
1-8 Ibid 1-4, Lockard v. City of Los Angeles.
1-9 266 U.S. 137. Eubank v. City of Richmond.
Ibid 1-3, Fasano v.Bd. of County Commissioners of Washington County.
1-11 186 N.E.2d 529. Ward v. Village of Skokie, Illinois; 502 P.2d 327.
Fleming v. City of Tacoma, Washington; 584 P.2d 130. Golden v. City of Overland Park, Kansas; 507 P.2d 23. Fasano v. Bd. of County Commissioners of Washington County, Oregon; 221 N.W.2d 303. West v. City of Portage, Michigan; 542 P.2d 371. Snyder v. City of Lakewood, Co1orado.
1-12 _______________. "Judicial Control Over Zoning Boards: Suggestions
for Reform". UCLA Law Review Vol. 12:937, 1965.
1-13 534 P.2d 1212. Sundance Hills v. Bd. of County Commissioners of
1-14 Freilich, Robert. "Fasano v. Board of County Commissioners of
Washington County: Is Rezoning an Administrative or Legislative Function?". 6 Urban Lawyer vii, 1974.
1-15 Ibid 1-3, Holman.
1-16 Ibid 1-14, Freilich.
1-17 Ibid 1-11, Following.
1-18 584 P.2d 130. Fleming v. City of Tacoma, 1972.
1-19 _______________. "Limitations on Initiative and Referendum". Stanford
Law Review Vol. 3:497, 1951.
1-20 McQuillin, Municipal Corporations Sec. 25.302, 1973.
1-21 516 P.2d 1234. Forman v. Eagle Inc.
1-22 164 N.E.2d 180. Hilltop v. South Euclid.
1-23 See Generally: Ibid 1-4, Eastlake v. Forest City Enterprises.
1-24 Ibid 1-4, Eastlake v. Forest City Enterprises.
2-1 Ibid 1-12, _______________________________.
2-2 Ibid 1-4, Lockard v. City of Los Angeles.
2-3 See Generally: McQuillin. Municipal Corporations. Section 25.278, 1973; Holman. 33 O.S.L.J. 136; 408 P.2d 977. Orth v. Board of County Commissioners; 71 A.L.R.2d 570. Section 2, American Law Reports.
2-4 Ibid 1-1, Merrill.
2-5 94 U.S. 135. Munn v. State of Illinois.
See Generally; Crawford, Clan. Strategy and Tactics in Municipal
- 3 -
Zoning. New Jersey: Prentice-Hall, Inc., 1978; Hinds, D.S. Winning at Zoning. New York: McGraw-Hill, Inc., 1980.
2-7 Ibid 1-2, Anderson.
2-8 Ibid 1-3, Holman.
2-9 71 A.L.R.2d 570. American Law Reports. Section 2.
2-10 277 U.S. 183. Nectow v. Cambridge.
2-11 84 A.2d 903. Feldman v. Star Homes.
2-12 Ibid 1-3, Holman.
2-13 Ibid 1-3, Holman.
2-14 Ibid 1-5, Oren.
2-15 89 A.2d 1. Pyatt v. Mayor and Council of Borough of Dunellen.
2-16 Ibid 1-1, Merrill.
2-17 Ibid 1-3, Fasano v. Bd. of County Commissioners of Washington County.
2-18 A practice personally observed in: Larimer County, Morgan County, Arapahoe County, and Adams County, Colorado.
2-19 A practice personally observed in: Larimer County, and Arapahoe County, Colorado.
2-20 A practice utilized by the City and County of Denver in reviewing land use requests.
2-21 Crawford, Clan. Strategy and Tactics in Municipal Zoning. New Jersey: Prentice-Hall, Inc., 1978.
2-22 600 P.2d 86. Information Please, Inc, v. Board of County Commissioners
of Morgan County.
2-23 Ibid 1-20, McQuillin. Section 25.296.
2-24 See as Examples: Arapahoe County Zoning Resolution, 1980; Pitkin County Land Use Code, 1980.
2-25 Ibid 1-20, McQuillin. Section 25.277.
2-26 Ibid 1-20, McQuillin. Section 25.309.
2-27 See Generally: Ibid 2-15, Pyatt v. Mayor and Council of Borough of Dunellen; Ibid 1-2, Anderson.
2-28 Ibid 1-13, Sundance Hills v. Arapahoe County.
2-29 Ibid 1-3, Holman.
2-30 Ibid 1-20, McQuillin. Section 25.302.
2-31 Ibid 1-20, McQuillin. Section 25.215.
2-32 Ibid 1-20, McQuillin. Section 25.216.
2-33 See as Example: Zoning Ordinance of the City of Littleton, Colorado, 1980.
2-34 See as Example: Zoning Resolution of Morgan County Colorado, 1979. 2-35 Ibid 1-20, McQuillin. Section 25.215.
2-36 Ibid 1-20, McQuillin. Section 25.216.
2-37 319 U.S. 624. West Virginia State Board of Education v. Barnette.
2-38 Ibid 1-5, Oren.
2-39 Ibid 1-4, Eastlake v. Forest City Enterprises.
2-40 See Generally: Radin. "Popular Legislation in California". California Law Review vol. 35:171, 1947.
3-1 Case study found in judicial history of, Schauer v. City of Miami Beach, Florida. 112 So.2d 838; 104 So.2d 129.
3-2 Case study found in judicial history of, City of Coral Gables v.
Coral Gables. 160 So. 478.
3-3 Ibid 1-4, Lockard v. Los Angeles.
3-4 Another explanation for the apparent scarcity of abuse in the quasijudicial process is the relative youthfulness of such actions.
3-5 Ibid 1-3, Snyder v. Lakewood; Ibid 1-13, Sundance Hills v. Arapahoe County.
3-6 Case study based on personal observation and knowledge of proceedings.
3-7 Case study based on personal observation and participation in proceedings.
3-8 See Generally: International City Management Association. "City Manager's Code of Ethics", 1979.
3-9 Case study found in: Freilich, R. H., Larson, T. M. "Conflicts of Interest: A Model Statutory Proposal for the Regulation of Municipal Transactions". University of Missouri Kansas City Law Review Vol. 38:375, 1970.
3-10 Rocky Mountain News, April 4, 1980, "City Officials Accused in SciFi Park Deal". May 17, 1980, "Official Pleas No Contest in Aurora".
3-11 Case study found in judicial history of: City of Eastlake v. Forest City Enterprises. 426 U.S. 668; 324 N.E.2d 740.
3-12 New York Times, March 14, 1979. "Sohio Cancels a Pipeline to Carry Alaskan Oil from Coast to Texas".
3-13 Personal experience Public Service Company of Colorado. August 1977.
3-14 Personal discussion with George Writer, The Writer Corporation, September 1980.
3-15 See as Example: Arapahoe County Zoning Resolution.
4-1 Ibid 2-6, Crawford. Hind.
4-2 Personal discussions with Dan McNellis, registered lobbyist, August, 1930.
4-3 Personal discussions with Eric Kelley, Land Use Controls Seminar,
April 21, 1980.
4-4 Personal experience with Public Service Company of Colorado, in Eagle County, Colorado, December 1979.
4-5 Personal experience Eagle County, Colorado. Dale Grant, Jim Temple, and Fred Collett, each members of Colorado Club 20, contacting Danny Williams Eagle County Commissioner.
4-6 Personal experience Eagle County, Colorado.
4-7 Personal observations Littleton, Colorado, August 1980.
4-8 Personal experience Eagle County, Colorado.
4-9 Personal experience Eagle County, Colorado.
5-1 American Law Institute Model Land Development Code.
5-2 California Energy Facilities Siting Act of 1977.
5-3 Miner. "Coordination of Development Regulations: Untangling the Maze"-. Environmental Comment, May 1976.
5-4 White, M. D., Petros, R. L. "Land Use Legislation:: H.B. 1034 and II.B. 1041". The Colorado Lawyer Volume 6, Number 10, October 1977.
5-5 Colorado Revised Statutes of 1973 (as amended). Section 24-65. 1-502 (2) (a).
5-6 Ibid 1-13, Sundance Hills v. Arapahoe County.
6-1 White, Peter T. "This Land of Ours How Are We Using It?" National Geographic Volume 150, Number 1, July 1976.