Exploring How Municipal Boards Can Settle Appeals of Their Land Use Decisions within the Framework of the Massachusetts Open Meeting Law (original) (raw)
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The Public Regulation of Land-Use Decisions: Criteria for Evaluating Alternative Procedures
Journal of Empirical Legal Studies, 2010
In this article we argue for an empirical governance approach-the use of public evaluations-as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on nonfairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land-use decisions in Florida. Data from a survey of Florida stakeholders offer several interesting findings about five procedures currently in use to make land-use decisions: private negotiation; public hearings conducted by elected local officials; administrative law hearings; judicial adjudication; and public referendums. Based on the above five criteria, judicial adjudication is evaluated as the most desirable of these procedures through which to govern land-use decisions. Respondents view judicial and administrative adjudication differently, a finding that raises important questions concerning the appropriate roles for, and structure of, administrative and judicial adjudication. Referendums receive mixed reviews, while public hearings, the most common form of decision-making procedure in the land-use arena, are the least acceptable. In short, as the article details, our findings in the specific context of land-use decision-making procedures raise interesting and important questions about the most appropriate procedure through which decisions should be made in this arena and whether there are ways to revise procedures to improve their acceptability to the public. Further, the
Overparticipation: Designing Effective Land Use Public Processes
SSRN Electronic Journal, 2021
There are more opportunities for public participation in the planning and zoning process today than there were in the decades immediately after states adopted the first zoning enabling acts. As a result, today, public participation, dominated by nearby residents, drives most land use planning and zoning decisions. Enhanced public participation rights are often seen as an unqualified good, but there is a long history of public participation and community control cementing racial segregation, entrenching exclusion, and preventing the development of affordable housing in cities and suburbs alike. Integrating community engagement into an effective administrative process requires addressing the various ways in which existing public participation processes have failed to serve their purported goals. This Article critically examines how public participation operates in land use planning and approvals. It then proposes a new model, drawing lessons from other administrative processes, in an effort to balance public input, legal standards, and expertise.
Rutgers Law Journal, 2009
This Article examines the significance of the New Jersey Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Paulsboro for redevelopment and property rights in New Jersey. It suggests that Gallenthin has resulted in the revival of meaningful judicial review of municipal redevelopment designations. Specifically, the Authors contend that Gallenthin confronted two pervasive problems concerning judicial review of redevelopment designations. First, since 1947, when New Jersey adopted a constitutional provision that specifically authorized the legislature to pass laws permitting the taking of property for redevelopment of “blighted areas,” courts have unduly acquiesced to legislative and municipal interpretations of “blight.” Gallenthin addressed this trend by reaffirming that the judiciary is responsible for ensuring that only “blighted areas” are subject to redevelopment. Second, although municipal fact-finding is entitled to deference if supported by substantial evidence, courts often deferred to municipal redevelopment designations based on an expert’s conclusory testimony that the property satisfied the statutory requirements for redevelopment. Gallenthin clarified that judicial deference is proper only if a municipality presents meaningful, quantitative evidence that directly correlates to the relevant statutory criteria. Indeed, post-Gallenthin judicial review provides property owners with great protections without frustrating legitimate redevelopment initiatives.
Panel #7: Public Ownership vs. Private Rights: The Case of Maine's Disputed Public Lots
2019
When Maine separated from Massachusetts, the Articles of Separation (part of the new state's Constitution) required that as it sold off its public domain (about 8 million acres) Maine continue to reserve four lots of 320 acres per township-one each for the minister, the church and the school, and one for general purposes. The formula was soon modified to a single 1,000-acre lot from each township "for public use." These Public Reserved Lands (also called Public Lots) were held in trust by the state for the benefit of the future town. Pending settlement of the land, its only realizable value was the timber standing on it. Even before Maine's statehood, authorities realized there were no practical means of protecting these lands, including the Public Lots, from "timber trespass," or theft. Over the first 30 years of statehood, the problem only increased, even as the expansion of the United States westward made it apparent that settlement of remote portions of Maine was unlikely to proceed at the pace anticipated in 1820. The Articles of Separation prohibited selling the Public Lots; so to solve the problem of timber theft, in 1850 the Legislature authorized the Land Agent to sell the "right to cut and carry away the timber and grass" from the Public Reserved Lands, the right to continue until the township from which the reservation was made became incorporated as a town or organized as a plantation. By 1875, the Land Agent had sold off all the public domain, selling the timber rights to the Public Lots pursuant to the act of 1850. That year, the Land Agent's office was abolished; responsibility for the Public Lots eventually ended up with the Maine Forest Service, established in 1891. Early in the 20th century, Maine began to tax timber lands in private hands including the timber rights on Public Lots. The Public Reserved Lands remained virtually unmanaged for most of a century, treated as if they were the property of the surrounding, private landowners. By the early 1970s, the administration of Gov. Kenneth Curtis, with support from some "Rockefeller Republicans" in the Legislature, had transformed the institutions and structure of Maine government; it brought a time of what federal Judge Frank Coffin once termed "positive government," one that might make a difference in the lives of all Maine people. Bob Cummings, a reporter for the Maine Sunday Telegram, published an article in 1972 about the Public Lots, suggesting that the state had been derelict in protecting and using them. As public interest caught fire, Forestry Commissioner Austin Wilkins requested that the Attorney General James Erwin look into the
Use of Motive Evidence in Judicial Review of Rezonings
The Environmental Law Reporter, 2007
In this Article, Michael Allen Dymersky and Jesse J Richardson Jr examine the widespread rule ofjudicial review that a court should not consider evidence of motive in reviewing legislative actions by local government. They evaluate the rule in the context of a rezoning case in Highland County, Virginia, in which a group ofplaintiffs conclusively established that improper motive prompted one supervisor to vote in favor ofrezoning the subject property. The Highland County Circuit Court invoked the rule againstjudicial review of motive evidence to foreclose any consideration of the admitted improper personal motives that had inspired that particular rezoning. The authors conclude that the rule against judicial review ofmotive evidence has outlived its usefulness in the context ofrezonings and urge a legislative intervention. 3. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, presumably precludes all such inquiries as impracticable and futile. Soon Hing v. Crowley, 113 U.S. 703, 711 (1885) (ignoring proof that ordinance was adopted owing to a feeling of antipathy and hatred prevailing in the city and county of San Francisco against Chinese immigrants). 4. Blankenship v. City of Richmond, 49 S.E.2d 321, 323 (Va. 1948). "that evidence aliunde is inadmissible to assail the motives [of even local supervisors that] induced the enactment of a [local zoning] ordinance, for the purpose of determining its validity."' Recently, in Blue Grass Valley Preservation Coalition v. The Board of Supervisors of Highland County, Virginia, 6 a group of plaintiffs conclusively established that improper motive prompted one supervisor to vote in favor ofrezoning the subject property. 7 The Highland County Circuit Court invoked the Blankenship rule to foreclose any consideration of the admitted improper personal motives that had inspired that particular rezoning. The Highland County Circuit Court in the Blue Grass Valley case understandably took that statement in Blankenship v. City ofRichmond' to its logical conclusion, and revealed why the rule-and holding of Blankenship must be legislatively repealed. This Article examines the widespread rule of judicial review that a court should not consider evidence of motive in 5. Id. at 325 (citation omitted) (internal quotation marks omitted). But again, Blankenship also holds, without citation to any authority, that in Virginia "such evidence is admissible to sustain the validity of the ordinance, and often has decisive force." Id. (citations omitted). 6. The authors represented some of those who appealed to the local Virginia Circuit Court a rezoning decision made by the Board of Supervisors, the local governing body in Highland County, in a case styled Blue Grass Valley Preservation Coalition v. The Board of Supervisors of Highland County, Virginia, Equity No. CH03000004-00 (filed Apr. 8, 2003) [hereinafter zoning appeal or Blue Grass Valley case]. It was tried before the Honorable Thomas H. Wood, Chief Judge, 25th Judicial Circuit of Virginia, on April 29, 2004. Chief Judge Wood issued a final Order and Decree on November 3, 2004, declining to disturb the rezoning decision. 7. The Board of Supervisors on a 2-to-i vote approved an ordinance rezoning what was then known as the McNulty Farm, making way for intensive residential development on a steep mountain tract that had long been designated agricultural and conservation land. 8. 49 S.E.2d 321 (Va. 1948).
Judging Ziervogel: The Twisted Path of Recent Zoning Variance Decisions in Wisconsin
2008
Variances from local zoning ordinances are traditionally understood to be extraordinary remedies for parcels that are unique within their zones and because of the unique circumstances the parcel cannot be used for any reasonable purposes. The uniqeness requirement assures that more widespread problems are addressed by the legislature rather than the zoning boards of adjustment that grant variances. Empirical studies have found that zoning boards of adjustment routinely ignore the statutory conditions for granting variances and grant them instead based on their own assessment of the appropriateness of the variance. Nonetheless, until recently, the Wisconsin Supreme Court applied the statutory law strictly to overturn rogue decisions by local boards. Recently, however, led by an activist conservative majority, the Wisconsin Supreme Court reinterpreted its past decisions more consistent with the practices of the boards. It interpreted the standard as embodying a substantive due process...
Judicial Review of Local Land Use Decisions: Lessons from RLUIPA
Harv. JL & Pub. Pol'y, 2008
This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, modern system of land use regulation. In 2000, Congress determined, first, that unlike other forms of economic legislation, land use regulation lacks objective, generally applicable standards, leaving zoning officials with unlimited discretion in granting or denying zoning applications, and second, that this unlimited discretion lends itself to religious discrimination. Congress therefore enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires courts to apply strict scrutiny review to land use decisions that impact religious land uses.