Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

A different standing issue - the Polk County injunction controversy

There's been a fair amount of buzz around this article from the Ledger about the circuit court issuing an injunction to stop the County Commission from hearing a landfill issue. Here, as a famous radio commentator might say, is the rest of the story (from David Smolker, the landowner's attorney).

Turns out that the Polk County Code puts hearing and decision authority over some development orders with the Planning Commission. It allows affected parties to appeal to the County Commission. The provision is for a record-based appeal (not a de novo hearing); the only remedy provided by the local ordinance is remand to the Planning Commission . So the ordinance is creating a very limited role for the County Commission and clearly intends this to be an appellate remedy. It also provides for what amounts to motion practice in local administrative matters.

So the landfill folks show up at the Planning Commission, make their case, and get approved. A number of local residents appear to voice complaints; the person who later files an appeal does not. Apparently most of the complaining "neighbors" live at least a mile away from the site.

In any case, the Planning Commission approved the DO. Then, the "neighbor" appealed. Landowners filed a motion to dismiss the appeal for lack of standing on the basis that the appellant had not established any basis for which she was adversely affected on the record. The County Commission schedules a hearing on the motion and the entire opposition shows up. The appellant pleads the usual stuff, and despite the ordinance, the County Commission votes to deny the motion and indicates that its not only going to schedule the appeal, it's going to hear new evidence.

Landowners file in court asking to for an injunction against the hearing. They file a complete record with the suit, so the court could have reformed the action into either a petition for cert or for prohibition. The essence of the matter is that the County Commission is violating the ordinance and if it holds the "appeal hearing" that it intends, the landowners' will be prejudiced, not to mention forced to spend thousands of dollars again on experts, etc. The Court agrees that no reasonable interpretation of the ordinance allows the Commission to hold a new de novo hearing on the matter and that the appellant doesn't have standing to appeal based on the record, so it issues the injunction.

I think this is a pretty reasonable result, with one caveat. Unlike the comp plan challenge cases, there isn't some (new) "shifting burden" of standing - though the Planning Commission clearly hears all comers. However, I believe that as a matter of course, bodies who are holding quasi-judicial hearings should have clear and easy to use guidelines for citizens who appear before them to help them properly present testimony and preserve their rights.

In the 120/APA setting, most folks are represented by attorneys, but in local practice, that's not the case. We can argue all day and night as to whether appearance for another in a qj setting is the unlicensed practice of law (I think it should be, but I'm prejudiced on this by seeing how many zoning/SE proceedings have been mangled by non-attorneys), but today it is permitted. And pro se representation is permitted in any case.

One of the reasons I strongly believe that we need a statewide, uniform local government procedures act is that we could have meaningful guidelines and training for citizens who appear in these settings. Such an approach would make the kind of imbroglio we're seeing here much less likely.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.