General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Summer 1997 copyright American Bar Association. All rights reserved.
Presenting a Case to a Local Board
BY JOHN P. MACY
John P. Macy is a partner at Arenz, Molter, Macy & Riffle, S.C., in Waukesha, Wisconsin. He is a member of The Compleat Lawyer editorial board.
Each local agency, board, or commission has its own unique personality, rules, regulations, procedures, and jurisdiction. Perhaps you have wished for a definitive guidebook to assist you in preparing to present a certain case to a specific board. While you probably won't find such specificity, some general guidelines can help you approach your task.
First, you must analyze your project. It is impossible to present your case to a local board unless you fully understand the nuances of the project you are 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.
Once you have a general understanding of the project, you must determine the applicable code. Once you determine the applicable code, read it. Also, you will be far ahead if you read the entire code instead of relying on the short section that appears applicable.
Most ordinances include a general section on the intent of the ordinance. Any determination ultimately made by the local board should be based in part on this language. Although the purpose section, as it is generally called, may seem to be boilerplate, it can become the most important language for your case, especially on appeal.
Once you have had an opportunity to decide upon the applicable code, you then must determine what exactly you need from the local board. Then, find out what procedure you must follow. You must discover whether you will need to appear before the local board either at a meeting and/or a public hearing, when the board meets, and how to get on the agenda for the meeting. Generally, the clerk or secretary of the board will be helpful in this regard. I recommend that you attempt to get to know this person well.
After preliminary considerations have been made, set a goal for yourself. This goal should include what it is you are attempting to obtain and a time frame for reaching the goal. Be realistic. Municipal approvals take time.
The Decision Makers
The decision makers are generally lay individuals who are appointed by the governing body for a specific term. Usually, they are dedicated citizens who are, for the most part, volunteers.
Although they may have a specific bias toward certain types of development, this is relatively uncommon. As a whole, they want to do what is best for their community.
Enabling statutes. Enabling statutes set forth not only the composition of the membership of the boards but also in most instances the jurisdiction and the general procedures, rules, and regulations of the board.
Determining the jurisdiction of the board is very important. Many property owners who fail to properly analyze their project and determine their needs have found themselves before the wrong body. The property owner should always remember that the determination of the board is legally binding and will have a direct effect on how the property owner can use the property. The courts have generally upheld the determination of the board if the board has acted within its jurisdiction and not in an arbitrary or capricious manner.
Communicate with staff. You should become familiar with the staff members who you will be dealing with. Not only will they be able to assist you in learning the board's procedures but also they can be helpful in many other ways. Keep in mind, though, that the staff may be a part-time person with a myriad of responsibilities.
Learn the ropes. If at all possible, talk to someone who has been before the board previously. They will be in the best position to tell you what type of presentation is best received by the board, especially if they were successful in getting their approvals.
Obtain copies of recent board minutes. Although the minutes may contain nothing more than the actual decisions of the board, even this may be helpful. It can also 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.
Understand the application process. Determine if a specific application must be filed. Many times the board does not have such a form. In certain instances, though, a very specific application is needed.
Prepare the application yourself. Do not rely on the staff to prepare the application for you. Certainly, it is wise to ask the staff to review the application once you have completed it, but the staff may not fully understand your project. They have been known to inappropriately prepare the application.
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; therefore, no action could be taken. Check to see whether or not other notices are required and whether they have been properly "served." In certain instances, specific notices must be sent to property owners in the area. Many times you, as the applicant, are required to provide names and addresses of these property owners.
Contact staff prior to the meeting. Always make at least one courtesy call to the staff prior to the meeting. This call should at a minimum:
Personally view the site. You should 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. They will expect that you have viewed the site. By viewing the site, you can accomplish a number of things:
- Assure that all notice requirements have been satisfied.
- Review with the staff the process that will be followed at the meeting.
- Determine when your matter will be called.
- If possible, try to determine whether there has been any disposition of your type of request or your request by the board previously.
- Determine what, if any, neighbors are in the vicinity.
- Get a feel for the lay of the land.
- Find out if there is any obvious history of use of the land, such as quarry operations, junk yards, environmental concerns, etc.
- Discover whether you will be dealing with any wetland issues.
- Determine if you will have any traffic and/or access issues.
Determine opinion of professional staff. If the board uses any professional staff, such as a municipal engineer, municipal lawyer, or municipal planner, pay them a courtesy call prior to the hearing to determine what, if any, position they have in regard to the project.
You should offer to meet with the staff at their convenience to review your proposal prior to your presentation to the board. If you meet with any of the professional staff, always memorialize the discussions in writing. A brief note to the professional staff person thanking them for the meeting and summarizing the discussion and issues raised will be of great assistance to you in the long run.
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 contact. In almost all instances it is not inappropriate to contact the board members individually. Although there are arguably some limitations on this practice, for the most part it is legal. Keep in mind that many board members are contacted by the opposition prior to the meeting and may, if you do not contact them, 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 with them and/or tour the site with them prior to the meeting is well received whether or not your offer is accepted. Under some laws and circumstances, though, a quorum of the board should not be present at one time.
Many times you will not be able to contact each and every board member prior to the meeting. It pays, though, to determine who the strong members of the board are and who the naysayers may be. Remember, under many ethics laws, you are severely restricted in making any type of offer or payment to a board member.
Develop a record of your presentation and/or testimony. Determine in advance from the clerk of the board whether the meeting will be taped. Find out whether they do verbatim minutes or merely a summary of the actions taken. Most local boards are sensitive to the fact that you may wish to have an exact transcript of the proceedings. Although they may be somewhat intimidated by a court reporter and/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.
Make arrangements with the clerk either prior to or after the meeting to obtain a copy of the taped portions of the proceeding.
Introductions. As a general rule, always introduce yourself and each member of your party prior to commencing your presentation and/or testimony. Most boards want to know who is in the audience and why. If possible, hand out a prepared list of the names and titles of the individuals who will be making the presentation. This will help to supplement your record and will be appreciated by the board members.
Learn specific procedures. In almost all instances, you will be making your presentation first as the applicant. You should have a general understanding of whether this is a public hearing or merely a meeting. Some local boards are very strict as to whether they will allow other members of the public to make statements if it is not a public hearing.
If it is a meeting, the general procedure is for you to make your presentation and then address questions from the board. Although many chairs will allow brief comment or questions from the public even if it is not a public hearing, this is generally limited.
Try not to get caught in the situation where you will be doing two or three formal presentations. In those instances, what often happens is that the first presentation, which is conceptual and not technically on the record, will be your best. After that, because the board has already heard your pitch, your presentations become shorter and less thorough. By the time you have the actual public hearing on the record, you are in a Catch-22. If you put your entire presentation on again, the board will not be very receptive, but if you fail to do so, you will not have a proper record.
Burden of proof. It is extremely difficult to determine the exact burden of proof. Obviously, in almost all instances, the burden is on the applicant. Again, this is where the applicable code and/or ordinance becomes important. In almost all situations, somewhere in the applicable code or ordinance there will be some general language setting forth the standards by which the board is to make its decision. For the most part, this is usually the least used portion of the code or ordinance. Direct the board's attention to the applicable code, unless for strategic reasons you want the board to make its decision without referencing the appropriate sections. Since the standards are very general, though, in almost all instances, I recommend distributing a summary sheet setting forth the standards that you feel the board needs to rely on and how you have addressed them.
Handouts. 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 circuit 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 is important for the record, but is not confusing. A confused board with unanswered questions will, in most instances, either table your request for a month or deny it outright.
Talk to your client. Prior to the proceedings, determine your client's limitations. Discuss with the client what he or she is willing to live with. Know what specific conditions are acceptable to your client. Since there will be requests for tradeoffs, you need to know your bottom line. Most boards do not understand the concept of "caucusing with your client." The board expects that you will understand your project backward and forward and know what is acceptable to your client. It won't look professional for you to try to discuss it with your client at the proceedings or agree to a deal without your client's permission. Your preliminary setting of goals should address this issue.
Objections at the meeting. Most local boards have no formal rules of practice or procedure regarding evidence. Most boards will listen to all information, and most will not understand the concept of rules of evidence. Also, most proceedings do not allow you to interrupt other speakers and most boards would be offended by this practice. The board anticipates that you will give your presentation and then sit down, allowing others to then make their comments.
In almost all instances, especially when you ask, you will be allowed to summarize at the end of the presentation. Usually, that it is the most appropriate time to object. Many times you are the "new kid on the block" and the objecting neighbors are the "old-timers." Keep a careful balance between perfecting your record and offending the electors. Keep in mind that if you do object, in almost all instances, even if the board understands the basis for the objection, they will let the information in for what it is worth.
My experience has been that once a chair starts taking objections and attempting to exclude information, all of the objecting neighbors start making objections every time you or your client open your mouths. Before you object to anything, review the objection in your mind and consider it thoroughly. If you do feel that it is important to make a comment about a point, make it, but don't spend a lot of time on it and quickly move on.
Be available to board members. Before and after the public meeting, be available to the board members to clarify your particular request. Most boards are not impressed if you show up just for your matter and leave immediately thereafter. Unless the meeting is exceptionally long, it looks much better if you appear at the start of the meeting and stay throughout it. This way, you will be available to the board members prior to the meeting and immediately thereafter to discuss your project. There is a strong likelihood that at least some of your opposition will be taking advantage of this opportunity to lobby the board members.
Action by the board. Make sure that clear action is taken by the board. Often, there can be confusion as to what the board is actually approving and/or what conditions have been placed on the approval. Also, if there is a denial, you may ask for the board's reasons.
Some boards will be receptive to a draft of a proposed motion. If at all possible, have it available for the municipal lawyer, since he or she is often asked to actually word the motion. Don't be afraid to be presumptuous - draft a proposed motion for the municipal lawyer approving your project with reasonable conditions that are acceptable to your client. In carefully doing so, you need not be offending anyone.
Also, determine in advance whether the body that you are making your presentation before is a recommending body or an approving body. Many times the local board that hears your presentation is merely making a recommendation to the governing body.
Obtain a copy of tape and minutes. As previously noted, regardless of the decision of the board, it will be valuable to your client to obtain a copy of the proceedings, both recorded and written. Most laws allow you, at least at some point, to obtain the copy. These requests should be made in writing and hand delivered to the custodian of the records, who is usually the clerk of the municipality.
Prepare proposed motions. If the body that heard your presentation is a recommending body, you will be given another opportunity, albeit a condensed one, to address the approving body. This is where written testimony and evidence filed at the original meeting can become very important, since most governing bodies will receive the written documentation along with the recommendation.
Meet with professional staff. Whether or not your project has been approved, you should meet with professional staff at some point after the meeting to determine their impressions. Specifically, find out how they have interpreted any and all c onditions of approval. If the project has been denied, ask the staff whether or not an appeal or reapplication would be in your client's best interests. Keep in mind that, unlike other legal proceedings, merely receiving a denial does not always rule out the possibility of refiling your application.
Written summary of approval. In the long run, it may be very helpful to your client if you draft a written summary of the approval and your understanding of the conditions contained therein, and then send it to the board. Although technically this document may not be part of the record, if the municipality places it in the official file and it truly is a summary of the understanding of the parties, years later when the neighbors attempt to bring in their concerns, this document will, in all likelihood, be referred to. Similarly, your copy of the minutes and tape of the proceedings may be invaluable. Don't assume a local board maintains permanent records.