Tips on Appearing Before Municipal Planning Bodies
Co-written by Elizabeth Brekhus
1. Meeting Agenda: Find out when your item will be considered. It may be a public hearing or may just require a public meeting and be listed on the consent calendar:
(A) Consent Calendar. Consent items are generally items staff deems noncontroversial and believes discussion is not needed. However, anyone can ask for a consent item be removed from the consent calendar and to be heard on the item. Consent items usually appear at the front of the calendar and may be voted for approval as a group.
(B) Public Hearing. Certain applications require a public hearing. Ask planning staff to send you an agenda when it is available so you know the order in which items will be considered. Sometimes items may drop off the agenda after it is released. Therefore, contact staff the day of the meeting to confirm no changes have been made or are expected to be made at the meeting, so you don’t miss your item if you are not planning to attend the full meeting.
2. Staff Report: Staff generally prepares a staff report in advance of the hearing. The staff report typically recommends approval or denial of a project and if approved, identifies conditions of approval for the item. It is very important to review the staff report for 2 reasons: (1) more often than not, planning commission members vote as recommended by staff; and (2) the conditions of approval may be very significant and probably cannot be changed later without permission from the planning commission body. If you have comments or concerns regarding an item, try and submit those in advance of the drafting of a staff report, because it might shape or spot issues for staff. In addition, if there are legal issues that need to be considered, it is more likely that those can be brought to the attention of and considered by the City or Town attorney.
3. Know the Law: Check the jurisdiction’s zoning regulations. The most recent regulations may be found on line. However, confirm this with the clerk or planner, since ordinances may have been changed and not updated on the web site. In addition, ordinances may be under consideration that may affect your project. Do not rely on outdated copies of Municipal Codes at the County law library. [they may not have these anymore]. Ask the staff planner to provide code citations for guidelines or regulations that you question. Sometimes planning staff decisions are made because of historical policy and are not supported in the actual municipal code. Or, the code language relied upon may be subject to different interpretations.
4. Letters to the Planning Body/Written Submissions: Have headings for each issue you would like addressed, and promptly provide your proposed solution after you have made each problem clear. Have an even tone and do not ramble. When we planning commissioners/council members, etc. have a lot of reading to do, it is very helpful and more likely persuasive when the problems and solutions are concisely written and easy to find in a document. Of course, provide detail where appropriate so we can delve into detail to learn more about how you are supporting your arguments. Ask planning staff when to submit written comments to be included in the staff report packet. Correspondence submitted at the last minute may not receive full consideration by the hearing body and may result in continuance of the item. Staff may provide correspondence that is not included in the “packet” to the planning body the night of the meeting, when they have little time to review it. Email correspondence to facilitate staff forwarding it to the planning body. Threats that if the planning commission approves the project, it will wrap up the city with litigation is generally unpersuasive. Most planning commissioners will defer to the city/town attorney as to whether there are any real threats of litigation. And commissioners have probably heard all the threats before.
5. Speaking Time: Look online or ask staff about how long you will have to argue a matter. Council meetings and planning commission meetings are all run in various ways. Ask how long each side gets to speak and whether the applicant gets a reply opportunity. Even if there is no formal policy for reply, it does not hurt to ask for the opportunity to reply when you first speak. The planning body may return to you for follow up. Also note, the chair typically holds the discretion on whether to reduce or enlarge the amount of speaking time.
Doubling up - where an attorney speaks and their client wants to speak as well. Some municipalities may not allow that, and even if they do, it can annoy commissioners if it's duplicative. I think it's better perhaps for a person to introduce the attorney briefly, perhaps bringing a human element.
6. Site Inspections: Many planning bodies conduct site inspections. It is better to have both the applicant and the design professional onsite for the inspection if the project is large or involved. Neighbors opposing a project may want to ask the planning commission body to look at the project from their property if that viewing might support their argument in opposition. Neighbors should provide correspondence to staff with a request that the planning body consider the project from their site well in advance of the meeting and provide contact information to facilitate this visit.
7. Resolution Efforts: If neighbors oppose an application, the applicant and neighbors should try and meet and discuss the matter and a resolution prior to the hearing (or on appeal). Staff, planning commissioners or council members appreciate when there are efforts to resolve a matter in advance. Planning staff may not have time to facilitate a resolution on your behalf. If you don’t resolve the matter in advance, there could be a “splitting of the baby,” or one side will win and the other side will lose. Rather than risk being on the losing side, it is much better to reach a resolution. If you reach a resolution, chances are Council will bless it unless it implicates an important public right. Many planning matters are issues that really are between neighbors and may be resolved with an agreement between neighbors. If you are not certain if your matter is something that is right for private discussion and an agreement between the neighbors, you might reach out to staff.
8. Connect with Planning Department Staff: Don’t be afraid to ask staff what their opinion will be in advance of their issuing the staff report. The staff report will either support your clients’ position or not. If you ask in advance, you might find out that their position is against you but you might be able to raise issues that make them reconsider or soften their opposition. Once they issue a staff report, it is a harder battle to ask a council or planning commissioners to decide against it. As stated, more often than not, councils or planning bodies usually vote the same way as the staff report. On the other hand, there are times when staff is completely out of step with the planning body (see recent IJ articles on Mill Valley). Any attorney practicing this law in Marin County needs to know what is going on with other planning bodies and keep abreast of the news. For example, the recent issues concerning high density housing and traffic are matters that are now being raised in connection with commercial property expansion and development in the Highway 101 corridor.
9. Connect with Decision Makers: You may be able to make a more complete argument directly to planning body members outside of the meeting time limits. Ask planning staff if you may contact the members of the planning body prior to the meeting or if the members prefer no contact. Some members may be open to a call to hear your concerns, but this could backfire in other jurisdictions. Respect their time: these are volunteer positions and members may have full time jobs outside of their volunteer work. Members of the hearing body may not give you any indication of how they are leaning on an application.
10. Legal Issues:
(A) The formal rules of evidence do not apply to Planning Commission and City Council hearings. Any lawyer representing a property owner who acts like he or she is in court will not help their client’s application.
(B) However, due process does apply to quasi-judicial matters such as design, review, CUP’s and variances. The applicant has a right to a fair hearing, including sufficient time to present their project. Also since the burden of proof is on the applicant, the applicant should be given a right to rebut opposing arguments made to the project at the end of the hearing.
(C) Written findings are very important as required by Topanga. When an applicant gets an approval, the attorney representing the applicant will want to make sure that the findings are sufficient. More than just a statement of the criteria are required (saying the project is consistent with the General Plan but no more is not sufficient). The findings do not need to be evidentiary but must explain to the court why each criteria for approval has been met.
11. Presenting the Argument:
(A) The more people you represent when speaking the more credibility you will have. Have your supporters/like-minded group of people come to the meeting, then let the planning body know you are speaking on behalf of “those eight people”, for instance.
(B) Have your argument planned out – do not speak off the cuff. Speak concisely without rambling. You are more likely to have credibility if you present your position in an organized and coherent manner.
(C) Don’t just be a complainer; offer constructive and specific solutions. The planning body will be more open to hearing your arguments if you pose reasonable and constructive solutions. Offer prioritized solutions, even: “If you [the planning body] do not agree to implement my X solution to that problem, then I would recommend you consider Y solution instead.”
(D) Submit the legal arguments in written correspondence submitted prior to the meeting and keep meeting comments to plain English.
(E) Have an expert support your solutions. Have an actual named (not mysteriously anonymous) architect, for instance, agree that a particular solution is easy, feasible, and preferable.
(F) Explain how the community, and not just you (or your client), will benefit if the planning body follows your proposed solution. Perhaps a proposed neighboring second-story remodel will not just give the neighbor views into your house, but it also will set a precedent for bulk and mass in the area – it will be the ‘camel nose under the tent’ for even larger additions that will detract and depart from the current size standards and feel of the area. Feed reasons to the planning body that show how your proposed solution is good for as many people as possible.
(G) It’s helpful to have a letter from those people who you are representing indicating that they want you to speak on their behalf so that it doesn’t seem dubious if you claim to represent dozens of neighbors.
(H) For a lot of variance, design review or general planning matters, I recommend the attorney ghost write the arguments and that the applicant or the neighbor hire an architect to argue the matter before the planning body. The exception to this is when the legal issues are primary or an appeal is anticipated. More often than not, clients tell me that if they lose before the planning body, they will not appeal so there is no concern about preserving arguments for appeal. Some council members are offended by an attorney appearing on behalf of a resident. I think the feeling is that they would give equal consideration to the resident voicing their own opinion and, therefore, they feel that the resident should appear and make their own argument. Architects can be particularly good at suggesting design alternatives or obstacles to design alternatives. Many architects are not well versed on variances, however, and so even if an architect is used, an attorney’s eyes on a variance argument is helpful.
12. If the Planning Body Decides Against You: Sometimes it is good to have a Plan B in the event the planning body is inclined to vote against you. Speak with a lawyer about setting your arguments up for an appeal, in ways that will have maximum impact during the next round of argument on the appeal (or even thereafter).
This document was created for a presentation to the Marin County Bar Association Real Property Section, and was a collaborative effort by attorneys, Elizabeth Brekhus, Greg Stepanicich, Barrett Schaefer, and John Corcoran, and Planner, Elise Semonian.
Elizabeth Brekhus of Brekhus Law Partners has been practicing civil litigation with an emphasis on real property law in Marin County since 1997.
(A) Consent Calendar. Consent items are generally items staff deems noncontroversial and believes discussion is not needed. However, anyone can ask for a consent item be removed from the consent calendar and to be heard on the item. Consent items usually appear at the front of the calendar and may be voted for approval as a group.
(B) Public Hearing. Certain applications require a public hearing. Ask planning staff to send you an agenda when it is available so you know the order in which items will be considered. Sometimes items may drop off the agenda after it is released. Therefore, contact staff the day of the meeting to confirm no changes have been made or are expected to be made at the meeting, so you don’t miss your item if you are not planning to attend the full meeting.
2. Staff Report: Staff generally prepares a staff report in advance of the hearing. The staff report typically recommends approval or denial of a project and if approved, identifies conditions of approval for the item. It is very important to review the staff report for 2 reasons: (1) more often than not, planning commission members vote as recommended by staff; and (2) the conditions of approval may be very significant and probably cannot be changed later without permission from the planning commission body. If you have comments or concerns regarding an item, try and submit those in advance of the drafting of a staff report, because it might shape or spot issues for staff. In addition, if there are legal issues that need to be considered, it is more likely that those can be brought to the attention of and considered by the City or Town attorney.
3. Know the Law: Check the jurisdiction’s zoning regulations. The most recent regulations may be found on line. However, confirm this with the clerk or planner, since ordinances may have been changed and not updated on the web site. In addition, ordinances may be under consideration that may affect your project. Do not rely on outdated copies of Municipal Codes at the County law library. [they may not have these anymore]. Ask the staff planner to provide code citations for guidelines or regulations that you question. Sometimes planning staff decisions are made because of historical policy and are not supported in the actual municipal code. Or, the code language relied upon may be subject to different interpretations.
4. Letters to the Planning Body/Written Submissions: Have headings for each issue you would like addressed, and promptly provide your proposed solution after you have made each problem clear. Have an even tone and do not ramble. When we planning commissioners/council members, etc. have a lot of reading to do, it is very helpful and more likely persuasive when the problems and solutions are concisely written and easy to find in a document. Of course, provide detail where appropriate so we can delve into detail to learn more about how you are supporting your arguments. Ask planning staff when to submit written comments to be included in the staff report packet. Correspondence submitted at the last minute may not receive full consideration by the hearing body and may result in continuance of the item. Staff may provide correspondence that is not included in the “packet” to the planning body the night of the meeting, when they have little time to review it. Email correspondence to facilitate staff forwarding it to the planning body. Threats that if the planning commission approves the project, it will wrap up the city with litigation is generally unpersuasive. Most planning commissioners will defer to the city/town attorney as to whether there are any real threats of litigation. And commissioners have probably heard all the threats before.
5. Speaking Time: Look online or ask staff about how long you will have to argue a matter. Council meetings and planning commission meetings are all run in various ways. Ask how long each side gets to speak and whether the applicant gets a reply opportunity. Even if there is no formal policy for reply, it does not hurt to ask for the opportunity to reply when you first speak. The planning body may return to you for follow up. Also note, the chair typically holds the discretion on whether to reduce or enlarge the amount of speaking time.
Doubling up - where an attorney speaks and their client wants to speak as well. Some municipalities may not allow that, and even if they do, it can annoy commissioners if it's duplicative. I think it's better perhaps for a person to introduce the attorney briefly, perhaps bringing a human element.
6. Site Inspections: Many planning bodies conduct site inspections. It is better to have both the applicant and the design professional onsite for the inspection if the project is large or involved. Neighbors opposing a project may want to ask the planning commission body to look at the project from their property if that viewing might support their argument in opposition. Neighbors should provide correspondence to staff with a request that the planning body consider the project from their site well in advance of the meeting and provide contact information to facilitate this visit.
7. Resolution Efforts: If neighbors oppose an application, the applicant and neighbors should try and meet and discuss the matter and a resolution prior to the hearing (or on appeal). Staff, planning commissioners or council members appreciate when there are efforts to resolve a matter in advance. Planning staff may not have time to facilitate a resolution on your behalf. If you don’t resolve the matter in advance, there could be a “splitting of the baby,” or one side will win and the other side will lose. Rather than risk being on the losing side, it is much better to reach a resolution. If you reach a resolution, chances are Council will bless it unless it implicates an important public right. Many planning matters are issues that really are between neighbors and may be resolved with an agreement between neighbors. If you are not certain if your matter is something that is right for private discussion and an agreement between the neighbors, you might reach out to staff.
8. Connect with Planning Department Staff: Don’t be afraid to ask staff what their opinion will be in advance of their issuing the staff report. The staff report will either support your clients’ position or not. If you ask in advance, you might find out that their position is against you but you might be able to raise issues that make them reconsider or soften their opposition. Once they issue a staff report, it is a harder battle to ask a council or planning commissioners to decide against it. As stated, more often than not, councils or planning bodies usually vote the same way as the staff report. On the other hand, there are times when staff is completely out of step with the planning body (see recent IJ articles on Mill Valley). Any attorney practicing this law in Marin County needs to know what is going on with other planning bodies and keep abreast of the news. For example, the recent issues concerning high density housing and traffic are matters that are now being raised in connection with commercial property expansion and development in the Highway 101 corridor.
9. Connect with Decision Makers: You may be able to make a more complete argument directly to planning body members outside of the meeting time limits. Ask planning staff if you may contact the members of the planning body prior to the meeting or if the members prefer no contact. Some members may be open to a call to hear your concerns, but this could backfire in other jurisdictions. Respect their time: these are volunteer positions and members may have full time jobs outside of their volunteer work. Members of the hearing body may not give you any indication of how they are leaning on an application.
10. Legal Issues:
(A) The formal rules of evidence do not apply to Planning Commission and City Council hearings. Any lawyer representing a property owner who acts like he or she is in court will not help their client’s application.
(B) However, due process does apply to quasi-judicial matters such as design, review, CUP’s and variances. The applicant has a right to a fair hearing, including sufficient time to present their project. Also since the burden of proof is on the applicant, the applicant should be given a right to rebut opposing arguments made to the project at the end of the hearing.
(C) Written findings are very important as required by Topanga. When an applicant gets an approval, the attorney representing the applicant will want to make sure that the findings are sufficient. More than just a statement of the criteria are required (saying the project is consistent with the General Plan but no more is not sufficient). The findings do not need to be evidentiary but must explain to the court why each criteria for approval has been met.
11. Presenting the Argument:
(A) The more people you represent when speaking the more credibility you will have. Have your supporters/like-minded group of people come to the meeting, then let the planning body know you are speaking on behalf of “those eight people”, for instance.
(B) Have your argument planned out – do not speak off the cuff. Speak concisely without rambling. You are more likely to have credibility if you present your position in an organized and coherent manner.
(C) Don’t just be a complainer; offer constructive and specific solutions. The planning body will be more open to hearing your arguments if you pose reasonable and constructive solutions. Offer prioritized solutions, even: “If you [the planning body] do not agree to implement my X solution to that problem, then I would recommend you consider Y solution instead.”
(D) Submit the legal arguments in written correspondence submitted prior to the meeting and keep meeting comments to plain English.
(E) Have an expert support your solutions. Have an actual named (not mysteriously anonymous) architect, for instance, agree that a particular solution is easy, feasible, and preferable.
(F) Explain how the community, and not just you (or your client), will benefit if the planning body follows your proposed solution. Perhaps a proposed neighboring second-story remodel will not just give the neighbor views into your house, but it also will set a precedent for bulk and mass in the area – it will be the ‘camel nose under the tent’ for even larger additions that will detract and depart from the current size standards and feel of the area. Feed reasons to the planning body that show how your proposed solution is good for as many people as possible.
(G) It’s helpful to have a letter from those people who you are representing indicating that they want you to speak on their behalf so that it doesn’t seem dubious if you claim to represent dozens of neighbors.
(H) For a lot of variance, design review or general planning matters, I recommend the attorney ghost write the arguments and that the applicant or the neighbor hire an architect to argue the matter before the planning body. The exception to this is when the legal issues are primary or an appeal is anticipated. More often than not, clients tell me that if they lose before the planning body, they will not appeal so there is no concern about preserving arguments for appeal. Some council members are offended by an attorney appearing on behalf of a resident. I think the feeling is that they would give equal consideration to the resident voicing their own opinion and, therefore, they feel that the resident should appear and make their own argument. Architects can be particularly good at suggesting design alternatives or obstacles to design alternatives. Many architects are not well versed on variances, however, and so even if an architect is used, an attorney’s eyes on a variance argument is helpful.
12. If the Planning Body Decides Against You: Sometimes it is good to have a Plan B in the event the planning body is inclined to vote against you. Speak with a lawyer about setting your arguments up for an appeal, in ways that will have maximum impact during the next round of argument on the appeal (or even thereafter).
This document was created for a presentation to the Marin County Bar Association Real Property Section, and was a collaborative effort by attorneys, Elizabeth Brekhus, Greg Stepanicich, Barrett Schaefer, and John Corcoran, and Planner, Elise Semonian.
Elizabeth Brekhus of Brekhus Law Partners has been practicing civil litigation with an emphasis on real property law in Marin County since 1997.
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