Process and Municipal Boards
(from Maine Townsman, February 1992)
by Christina Schultz
The right to procedural due process is guaranteed by both the state and federal constitutions and yet is not defined by either document. In recent years, the number of procedural due process challenges to municipal board action has increased, giving the courts an opportunity to articulate more fully the components of this doctrine.
Maine's highest court, the Law Court, has observed that procedural due process "does not restrict the State to any particular mode or procedure." Green v. State, 247 A.2d 117, 121 (Me. 1968). Instead, procedural due process is satisfied if individual rights are protected from arbitrary and unfair governmental action through appropriate procedural safeguards. Driscoll v. Gheewella 441 A.2d 1023, 1026 (Me. 1983).
The Law Court has held that decisions of a municipal board based upon fact-finding and affecting property rights "satisfy procedural due process when the applicant is given notice of and an opportunity to be heard at proceedings in which his [or her] property rights are at stake." Pelkey v. City of Presque Isle, 577 A.2d 341, 343 (Me. 1990).
Maine court decisions in the municipal arena, however, have not been confined merely to inquiring whether the applicant received notice and a chance to be heard. Instead, several recent Law Court and Superior Court decisions have probed into the more specific requirements of procedural due process and, in several instances, have reversed or remanded a municipal board's decision exclusively on procedural due process grounds.
This article focuses upon four components of procedural due processboard member bias, board member attendance, ex parte communications, and participation in board hearingsto assist municipal boards in identifying practices, policies and procedures which may jeopardize procedural due process rights.
Board Member Bias
Maine courts have repeatedly recognized that the constitutional guarantee of procedural due process presupposes a fair and impartial decisionmaker.
For example, in Mutton Hill Estates, Inc. v. Town of Oakland, 468 A.2d 989 (Me. 1983), the Law Court held that a planning board violated a developer's procedural due process rights when it invited the developer's opponents to assist in making factual findings sufficient to support the denial of the developer's proposal, without giving the developer notice or permitting the developer's representative to attend the meeting. The Law Court agreed with the Superior Court that "the findings of the Planning Board were irreversibly tainted by this procedural impropriety" and echoed the Superior Court's grave doubts that the developer could ever get "a fair, impartial, and expeditious hearing and decision from the Planning Board." Because of the irreversible bias, the Law Court removed the decision of whether to approve the developer's application from the Planning Board and authorized the Superior Court to make that decision for the board. Mutton Hill thus stands for the proposition that board member bias can so affect the fairness and impartiality of a municipal proceeding that a procedural due process violation results.
The Superior Court in Burns v. Town of Harpswell, No. CV-90-1083 (Me. Super. Ct. Cum. Cty., July 10, 1991) approached the issue of board member bias and procedural due process from a slightly different angle. In that case, a group of abutters successfully challenged a ZBA's action approving a special exception as violative of procedural due process by pointing out that one of the members of the ZBA was both an abutter and a friend of the applicant. Prior to the hearing, the board member's husband had written a letter in support of the special exception which was entered into the record. Although the board member abstained from voting, she participated in the ZBA's discussion of the application which was ultimately approved. The court found her abstention from voting insufficient to overcome the procedural due process error. It noted that "[g]enerally, due process requires neutrality of the decision-makers" and held that "[w]here a member's bias or conflict of interest is of sufficient magnitude to disqualify that person from voting, the member should not participate in debate or advocacy of the matter." The court therefore sustained the appeal on procedural due process grounds.
A similar result was reached in Sevigny v. City of Biddeford, 344 A.2d 34 (Me.1975). There, the Law Court held that procedural due process was violated by the participation of the mayor, as the presiding officer, in a city council hearing regarding the dismissal of another city official. The Law Court noted that because of his interest the mayor could not approach his duties with the "requisite freedom from bias and prejudgment."
These cases demonstrate that a fair and impartial decision-maker is an integral component of procedural due process and that a decision made in the absence of this component may be constitutionally deficient.
Board Member Attendance
Board member attendance is another essential element of procedural due process.
In Pelkey v. City of Presque Isle, 577 A.2d 541 (Me. 1990), the Law Court held that a ZBA violated an applicant's procedural due process rights when it issued findings and conclusions based upon evidence presented at hearings attended by only two members of the ZBA.
The board member attendance problem in Pelkey was created when the appointed ZBA underwent a significant change in membership during the interim between the ZBA's hearing upon the Pelkey application and its rendering of findings of fact, conclusions and ultimate disposition of the application. The change in the ZBA's composition was such that only two of the five board members had actually heard the evidence upon which the ZBA's findings of fact, conclusions and decision were based. Moreover, one of the ZBA's new members had been a vocal opponent of the Pelkey application prior to his membership in the ZBA, thereby raising the spectre of board member bias.
The court found that the mere fact that the composition of the ZBA had changed did not obviate the need for a decision-maker who had heard all the evidence upon which its decision was based. The Law Court noted that a municipal board "acts in a quasijudicial capacity if it affects an interest which is constitutionally protected." Accordingly, "procedural due process assumes that Board findings will be made only by those members who have heard the evidence and assessed the credibility of the witnesses." Concluding that this requirement had not been met, the Law Court remanded the decision back to the ZBA for a new hearing on the property owner's application and ordered that the hearing be held before only those ZBA members who, before their appointment to the ZBA, had neither opposed nor supported the property owner's application at the previous meetings.
Pelkey not only stands for the proposition that procedural due process requires unbiased fact-finders and decision-makers, but it also appears to mandate board member attendance at the evidentiary portion of any hearing upon which the board members' decision will be based. The Law Court in Pelkey took pains to point out that hearing evidence and assessing witness credibility is not "an impersonal obligation" but a "duty akin to that of a judge." It is therefore arguable that procedural due process is not satisfied when a board member merely reviews the record and questions his or her fellow board members regarding the events of a prior proceeding which the board member did not attend. Instead, as the United States Supreme Court has stated, "[t]he one who decides must hear." Morgan v. United States, 298 U.S. 468, 481 (1936), cited in Pelkey, 577 A.2d at 343.
Ex parte Communications
Ex parte communications have also been a recent focus of Maine court decisions addressing procedural due process challenges to municipal board action. An ex parte communication is a written or oral communication regarding the subject matter of a proceeding which occurs between the decision-maker and one party to the proceeding without the other party's presence or notice.
For example, an ex parte communication occurs if a planning board member and a property owner encounter each other in a grocery store and briefly discuss the merits of the property owner's pending application.
Similarly, an ex parte communication occurs when an abutter writes to a municipal board and states her objection to the granting of a variance to her neighbor and the neighbor is never provided with a copy of the abutter's letter or an opportunity to address its contents.
Although municipal hearings are not structured in the same manner as adversarial judicial proceedings before a judge or jury, it is clear that the courts are increasingly importing the ethical and procedural rules that govern those proceedings into the municipal arena. Both Mutton Hill and White v. Town of Hollis, 589 A.2d 46 (Me. 1991) are recent examples of that phenomenon and in each the plaintiff asserted an ex parte communication as a component of a procedural due process challenge.
In Mutton Hill, the developer successfully argued that an ex parte communication rising to the level of a due process violation occurred when the planning board held meetings with the developer's opponents from which the developer was excluded. Similarly, in White u. Town of Hollis, the plaintiff argued that she did not receive a fundamentally fair hearing on her request for a variance for a number of reasons, including because there had been ex parte communications with the Board. The Law Court agreed, observing that the "overarching principle of procedure in any board action is the right to a minimum of procedural due process: the Board needs to apply the proper law in an evenhanded way, not arbitrarily and capriciously. "White, 589 A.2d at 48. Applying this standard, the court found that the Board manifested "blatant disregard of the law" by, among other things, permitting an ex parte communication regarding the land use violation. The court observed that, pursuant to 30-A M.R.S.A. sec.2691, "every party ... [has] the right to present the party's case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct any cross-examination that is required for a full and true disclosure of the facts "
An ex parte communication interferes with these rights because it deprives the party of the opportunity to address ad the evidence which the board has considered in rendering a decision. Nevertheless, as White demonstrates, even upon finding an egregious procedural due process violation a court will not require a municipal board to grant a variance if the evidence supporting the variance request is insufficient. Accordingly, a due process violation may not in every instance prompt the reversal of an otherwise appropriate decision.
Participation in Board Hearings
In striving to satisfy the requirements of procedural due process, a municipal board may be confronted with the difficult task of deciding how much process is enough.
Although ZBA's are governed by the procedural requirements of 30-A M.R.S.A. Section 2691(3), other municipal boards that engage in factfinding may profit from reviewing not only that statute, but also certain provisions of the Maine Administrative Procedure Act ("the APA). Although the APA expressly does not apply to municipalities (5 M.R.S.A. Section 8002(2)), its provisions for adjudicatory proceedings (see 5 M.R.S.A. Sections 9052 through 9059 and 9061 through 9063) may constitute useful guidance.
Both Section 2691 of Title 30-A and the APA guarantee to a Party," in addition to notice and the opportunity to be heard, the right to introduce oral or written testimony, to cross-examine, and the right to present as well as to confront evidence and arguments on all the issues. At least one court has held that these rights, as set out in the Administrative Procedures Act, cannot be circumvented, even if to do so would spare the state agency concerned considerable time and expense that the agency could ill afford to devote to the matter. See Fichter v. Maine Board of Environmental Protection, No. CV-90-624 (Me. Super. Ct., York Cty., Sept. 18, 1991). This is presumably true as well of the procedural rights set out in Section 2691 for parties to ZBA proceedings.
Moreover, the courts have been generous in conferring party status to any individual that makes the following twofold showing: The person must participate in the proceedings and must demonstrate that he or she may suffer a particularized injury different in kind or intensity from that experienced by the general population. See Jaeger v. Sheehy, 551 A.2d 841, 842 (Me. 1988). "The requirement of 'particularized injuryt is met when the judgment adversely and directly affects the party's property, pecuniary or personal rights." Anderson v. Swanson, 534 A.2d 1286,1288 (Me.1987). It is well established that the courts have not required a high degree of proof of a particularized injury. Anderson, 534 A.2d at 1288. Accordingly, not only does procedural due process guarantee a wide array of evidentiary rights, it guarantees them to a wide range of individuals.
The right to participate in board hearings does not, however, extend into the decision-making function itself. In Cunningham v. Kittery Planning Bd., 400A.2d 1070 (Me. 1979), the Law Court held that property owners who were permitted to present their testimony to the planning board at a public hearing and who were provided with ample opportunity to draw the planning board's attention to any fact and information they had with regard to a proposed subdivision, were not deprived of procedural due process when the planning board closed the public hearing portion of the proceeding and adjourned to deliberate in private. The Law Court pointed out that the public hearing called by the planning board was discretionary and that procedural due process guaranteed only a fundamentally fair hearing, not participation in the actual decision-making function.
Judicial Approach to Minor Procedural Due Process Violations
Finally, while it is true that Maine courts have repeatedly recognized that procedural due process is a critical component of municipal board proceedings, it is nonetheless clear that the court will not allow the concept to be trivialized.
For example, in Philric Associates v. City of South Portland, 595 A.2d 1061 (Me. 1991), the plaintiff argued that its rights to procedural due process were violated when it was initially told that its application was complete and then, after the application was circulated to various city departments for comment, told that its application was seriously deficient. The Law Court characterized these facts as "far from [those] in Mutton Hill and observed that there was no evidence of ex parte contacts or other improper conduct by the board or planning staff. Accordingly, finding no procedural due process violation, the Law Court concluded that the plaintiffs appeal was premature and that no harm would result from allowing the board to complete its review of the plaintiffs application in due course. Philric Associates thus stands for the proposition that minor inconveniences and inconsistencies in municipal procedure do not automatically give rise to a procedural due process violation.
This article has addressed just a few of the components of procedural due process in order to assist municipal boards in identifying practices that may be constitutionally suspect. The judicial decisions addressing the issue of procedural due process are numerous and municipal board members may want to review this area of law more thoroughly in order to ensure fundamentally fair proceedings.