Editor's Note: The author is a partner in the Augusta law firm of Lund and Goodall and is a member of the MMA Advisory Committee.
Every conscientious town official will, sooner or later, be involved in a public hearing. The laws and liabilities regarding public hearings are changing and as a result every councilman, selectman, planning board member, fire chief, conservation commissioner, town manager, road commissioner, school board member, building inspectors and others must be aware of the basics in this increasingly used legal mechanism. If the basics are not understood, then every town official may cause considerable confusion and invite costly court cases. All of this can be avoided with a fairly simple understanding of the public hearing concept and purpose.
The first determination that needs to be made before a public hearing is announced is whether it is to have a legislative or quasi-judicial function. All levels of government use both types but each is clearly different with different purposes and legal requirements. The fact that both types are called public hearings is unfortunate and a source of confusion.
The Legislative Public Hearing
Whenever any government body is considering the adoption of a law, ordinance, rule, or regulation and calls a public hearing to consider the proposal, a legislative type public hearing will result. Examples are when the selectmen call a public meeting to discuss a proposed ordinance for road construction standards or the planning board calls a public meeting to discuss proposed subdivision regulations. Each of these are legislative because they will have a general application throughout the town. The purpose is to get public reaction to a proposal which will restrict and regulate whoever may be affected by the proposal in the future.
The legislative public hearing, until recently, has been the most common. It is generally an informal affair with all of the proponents having their say and then all of the opponents. Speakers can say just about what they want and usually do even if it is not terribly relevant. There are very few procedural rules for the conduct of this type of hearing. Generally, notices are published in a newspaper and posted in town. Since the purpose is to get public input, an effort should be made to get as much reaction as possible from as many people as possible. Therefore, the more people who know about it, the better. The legislative public hearing is most efficient when multiple copies of a clear and written proposal is widely distributed for discussion. Every degree of vagueness increases in proportion the chaos this type of hearing can sometimes cause. Most Mainers have the healthy attitude that if we can't understand it, we don't like it.
Every government unit and agency will from time to time hold a legislative public hearing. The goals are the greatest possible public input, broadest public notice, a clear proposal, and a simple procedure.
The Quasi-Judicial Public Hearing
The quasi-judicial public hearing is in sharp contrast to a legislative public hearing. It is a formal affair, restricted by clear legal restraints, and if not properly conducted, can result in costly litigation for the town, individuals, and town officials. This type of hearing is becoming much more common and is now required as a matter of law in many circumstances.
The key to understanding this type of hearing is in its name: quasi-judicial. In other words, it is like a court case and those involved usually have a lot to lose or gain. For example, when the selectmen hold a public hearing for Joe Smith's junkyard license, it must be a quasi-judicial hearing. When a planning board holds a public hearing for John Doe's real estate subdivision, it must be a quasi-judicial public hearing.
Every quasi-judicial public hearing has constitutional limitations and the participants have rights that are very important. These set the goals for how the hearing should proceed.
The Fourteenth Amendment requires that every government unit and agency not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The 'due process' requirement mandates that every decision and hearing be based on fair and reasonable written ordinances and regulations that correspond to the facts at issue. In other words, each town unit should have written rules for conducting these public hearings; the ordinances or laws that are the subject of the hearing must be reasonable and written; and the evidence at the hearing must relate to the purpose and criteria of the relevant law or ordinance.
The 'equal protection' requirement mandates that everyone affected by the particular ordinance or law be treated in a similar fashion. The key here is the 'treatment' which must be the same. It does not mean that the outcome or decision must be the same. All rules, regulations, ordinances, and laws must be applied equally to different facts. Because the facts are always different, the outcome is almost always different to some degree.
Rules of Procedure
Every unit of town government which may hold a quasi-judicial public hearing and does not now have written rules of procedure is in for potential trouble.
Do it now and keep them simple!
If you do not have any written rules, it is difficult to provide adequate due process. In addition, procedural rules help everyone, especially the chairman. Rules, if they are clear and simple, can prevent the process from turning into a circus and shouting match. Without rules the final decision may be challenged in court. Maine law requires that these rules be adopted before anyone needs a public hearing. Once anyone has filed an application for a permit, license, etc., it's too late to start worrying about rules of procedure. Therefore, adopt them now!
In this type of hearing, as in a court, there needs to be limitations on the type of evidence that is presented and considered.
The most important factor is relevancy. The test is a fairly simple one compared to the test used in court trials. Generally, any evidence should he allowed to be presented which will be helpful and which has some reliability. Emotional and speculative presentations should he discouraged, but they never can be completely avoided. These hearings are frequently emotional so the chairman should conduct the hearing with both compassion and fairness. This is a task which is sometimes almost impossible, but the effort is worth it.
At the very beginning of the hearing the chairman should explain the procedural rules and read the criteria of the law or ordinance that applies. He should make it very clear that only evidence that relates to those criteria can be considered. That is the best test of relevancy: does it relate to the criteria of the law or ordinance which is being applied? For example, evidence and discussions about more school age children is generally irrelevant in a subdivision hearing before a planning board because the state law requiring the subdivision license does not list this factor as one of the criteria. Unless it has been clearly included in a locally adopted ordinance or regulation, it cannot be considered.
Any person presenting evidence at this type of hearing should be available to answer questions from town officials and others. In other words, anyone who testifies should be subject to cross-examination.
Whenever a quasi-judicial hearing is used another crucial limitation automatically results: the decision must be based only on information and evidence gathered at the hearing.
This is an important point. Just one year ago, the Maine Supreme Judicial Court reviewed the results of this type of hearing in South Portland and threw out the decision of the city council in a license case for a self-service gasoline station. The city did this because the council based its decision on evidence not presented at the public hearing. In its decision, the court said:
"While an administrative agency of government does possess a broad area of discretion, it is . . . requires, that a decision be based upon substantial evidence rather than the visceral reaction of its number. When, as in the instant case, the application was supported by uncontradicted evidence that the proposed operation did not pose a threat to the public safety, the Council may not base its adverse decision, however well motivated, solely upon the personal opinion of one of its members, particularly where the reservations expressed were purely speculative."
Once the hearing is over, a decision must be made within a reasonable, period of time. Check the law or ordinance governing each case because some set clear time limitations.
The final decision must be in writing and must state the reasons for the decision. This is a requirement of state law and also of general fairness. The best form is the listing of the facts that were relied upon for reaching this final decision. A convenient form will be in two parts. The first is a 'Finding of Facts' and the second is a 'Decision.' The decision generally can be either approval, approval with conditions, or denial. If conditions are included, they must be listed.
There is a clear trend to give more control to municipalities. Because of this, there will be an increase in public hearings of both types. They are a useful and important tool, but a word of caution is needed in conclusion. Always consult the law governing the specific issue and hearing. When in doubt, seek legal assistance. What appear to be minor errors can result in costly litigation and can damage the interests of private individuals as well as the town.