GPSOLO October - November 2008
Winning Game Plans for Local Board Appearances
There will likely come a time in the career of each general practitioner when a client will ask for assistance in appearing before a local governmental board. Although there is no “one-size-fits-all” approach to a local board appearance, there are some general practice guidelines that will provide the best opportunity for success. Key elements in the successful approach include understanding the proposed project, understanding the law, pre-hearing preparation, and conduct of the hearing itself.
Understanding the Proposed Project
It is impossible to present your case to a local board unless you fully understand the nuances of the project your client is undertaking. This may seem very basic, but if you do not understand the project, you will not be able to explain it to the board. Thus you need to be completely conversant with all aspects of the proposal. You should insist on meeting with any client, employee, consultant, engineer, or architect that had any part in the plan preparation. Always take time to review the development site. Keep in mind that in all likelihood, the board members have a general understanding of the site, and they will expect you to have the same or better familiarity. By viewing the site, you can accomplish a number of things, including:
- determining what, if any, neighbors are in the vicinity;
- getting a feel for the lay of the land;
- finding out if there is any obvious history of use of the land, such as quarry operations, oct-novkyards, environmental concerns, etc.;
- discovering any obvious wetland issues; and
- identifying potential traffic or access problems
Understanding the Law
Once you have a general understanding of the project, you must determine the statutory and code provisions that apply to the project. Enabling statutes set forth not only the composition of the membership of the board but often its jurisdiction, general procedures, and rules. Determining the jurisdiction of the board is very important; it would be quite embarrassing to appear with your client before the wrong body, and malpractice insurance rates do not appear to be shrinking.
With regard to understanding the applicable local ordinances, you will be far ahead if you read the entire code instead of relying on the short section that appears applicable. Many municipal codes have provisions pertinent to a project scattered throughout the book (undoubtedly owing to revisions and codifications made without input of the municipality’s attorney). Most ordinances include a general section on the intent of the ordinance. Although the “Purpose Section” (as it is generally titled) may appear to be boilerplate, it can become the most important language for your case, especially on appeal.
Once you have identified all applicable substantive code provisions, you then must determine exactly what approvals are needed from the local board(s) and what procedures must be followed. Generally, the clerk or secretary of the board will be very helpful and may save you a good deal of time in translating code to practice. I recommend that you get to know this person well.
Once you have a firm handle on legal and procedural fronts, sit down with your client and set goals. Discuss with the client what he or she is willing to live with. Know what specific conditions are acceptable to your client. Because there may be requests for tradeoffs, you need to know your bottom line. Thus, the goals should include a worst-case acceptable outcome and a time frame for reaching the goal. Be realistic. Municipal approvals take time.
Pre-hearing preparation is often the most important factor in obtaining board approval. If you have the municipal staff and, perhaps, individual board members nodding “yes” before the meeting even begins, your time before the board will be a pleasurable one. Some “best practice” tips to help accomplish this follow.
Communicate with staff and consultants. You should become familiar with the staff members with whom you will be dealing. Not only will they be able to assist you in learning the board’s procedures, but they may give insight as to how the board generally thinks, identify known obstacles, point out need for additional information, and communicate positive information to board members in the form of a staff report or otherwise. If the board uses any professional staff, such as a municipal engineer, lawyer, or planner, pay them a courtesy call prior to the hearing to determine what, if any, position they have in regard to the project. Should you meet with any of the professional staff, memorialize the discussions in writing. A brief note to the professional staff person thanking him or her for the meeting and summarizing the discussion and issues raised will be of great assistance to you in the long run.
Obtain copies of recent board minutes. Although prior minutes may contain nothing more than the actual decisions of the board, even this may be helpful. It also can be helpful to listen to the tapes of prior meetings. Most local boards tape their proceedings and retain those tapes for a specific period of time. The staff may be of assistance to you in determining if any specific taped proceeding is similar in nature to your request.
Talk to other applicants. If at all possible, talk to someone who has been before the board previously. Any insight into how the board reacted to the presentation will be most helpful, especially if the application was approved.
Application process. Determine if a specific application must be filed. Many times the board does not have such a form. In other instances a very specific application is needed. If a written application is needed, prepare it yourself. Although it is wise to ask the staff to review the application once you have completed it, do not rely on the staff to prepare the application for you. The staff may not fully understand your project.
Make sure the application is placed on the agenda. Many projects are delayed because the specific action requested of the board was not properly noticed, so no action could be taken. Check to see whether or not other notices are required and whether they have been properly published and served.
Analyze potential opposition. Determine in advance whether there is opposition to the project. Generally, this can best be determined by knocking on doors. Find out if your opposition is totally opposed to the project or whether some reasonable conditions would satisfy their concerns. Offer to meet with them prior to meeting with the board, if at all possible, to analyze their strength, listen to their concerns, and determine if they have any legitimate legal issues that you will be required to address. Obviously, a great deal can be learned from the opposition prior to the meeting.
Ex parte contacts. If you will be appear-ing before a legislative or quasi-legislative board, there are generally no rules prohibiting contact with board members individually. Keep in mind that many board members are contacted by the opposition prior to the meeting. If you do not contact them, they may come to the meeting with very one-sided background information. As volunteers, board members may have very little time to spend with you. A mere offer to meet and/or tour the site with them prior to the meeting will be well received whether or not your offer is accepted. A quorum of the board should not ordinarily be present at one time. Often you will not be able to contact each and every board member prior to the meeting. Nonetheless, it pays to determine who the strong members of the board are and who the naysayers may be.
As a general rule, always introduce yourself and each member of your party prior to commencing your presentation. Most board members want to know who is in the audience and why. If possible, hand out a list of the names and titles of the individuals who will be involved in the presentation. This will help to supplement your record and will be appreciated by the board members.
Of course, you already will have learned the specific procedures attendant to the meeting. As the applicant, you will in almost all instances be making your presentation first. You will have determined whether the proceeding is a public hearing or merely a meeting. Some local boards are very strict about allowing other members of the public to make statements if it is not a public hearing.
Develop a record of your presentation or testimony. Determine in advance from the clerk of the board whether the meeting will be taped, whether the tape will be preserved, and how detailed the minutes will be. If this “record” is of concern, you may consider arranging for a transcript at your client’s expense. Although the board may be somewhat intimidated by a court reporter or video camera, these are becoming more commonplace. Be sensitive to the board’s feelings while balancing your need to record the proceedings. Keep in mind that intimidating the board to the extent that they do not comment on your presentation will be of little benefit to your client in the long run.
A well-prepared handout is always well received. Make sure you have enough copies so that there is one for each board member as well as the entire professional staff and clerk. It also is appreciated if you have enough for the press and the public. A handout is almost always made part of the record, and on any review by a court, it is part of the file sent up. The trick, of course, is to have a well-prepared handout that will be of assistance to the board and important for the record but that is not confusing. A confused board with unanswered questions will, in most instances, either table your request for a month or deny it outright.
In almost all instances the “burden of proof” is on the applicant. Again, this is where the applicable codes become important. In almost all situations there will be some general language setting forth the standards by which the board is to rest its decision. Direct the board’s attention to the applicable code (unless for strategic reasons you want the board to make its decision without such reference).
Be available to board members before and after the public meeting to clarify your particular request. Most boards are not impressed if you show up just for your matter and leave immediately. Unless the meeting is exceptionally long, it looks much better if you appear at the start of the meeting and stay throughout. This way, you will be available to the board members prior to the meeting and immediately thereafter to discuss your project. Your opposition may be taking advantage of this opportunity to lobby the board members.
Make sure that the board takes clear action. Often, there can be confusion as to what the board is actually approving or what conditions it has placed on the approval. Also, if there is a denial, you may ask for the board’s reasons for not approving the project. Some boards will be receptive to a draft of a proposed motion. If at all possible, have it available in advance of the meeting for the municipal lawyer because he or she often is asked to word the motion. Don’t be afraid to be presumptuous—draft a proposed motion for the approval of your project with reasonable conditions that are acceptable to your client.Appearing before local boards is much like appearing before a jury, and the means to achieving the goal are identical. Knowing the facts, knowing the law, and articulating the reasonableness of your position are key. These suggestions should aid in your preparation, so when you face that one time in your career when a client asks you to appear with him before the Mayberry plan commission, you can confidently tell him, “I charge double for night meetings.”
H. Stanley Riffle is a partner in the firm of Arenz Molter Macy & Riffle SC in Waukesha, Wisconsin, and is the Budget Officer of the ABA General Practice, Solo and Small Firm Division. He may be reached at firstname.lastname@example.org.