1. © 2007 Robinson & Cole LLP How to Improve Land Use Decision-Making COUNCIL OF GOVERNMENTS OF CENTRAL NAUGATUCK VALLEY JANUARY 29, 2007

2. © 2007 Robinson & Cole LLP TOPICS Procedural due process Fundamental fairness What’s required? Discussion

3. © 2007 Robinson & Cole LLP DUE PROCESS 5th Amendment: “No person shall... be deprived of property, without due process of law” 14th Amendment: “... nor shall any state deprive any person of life, liberty, or property without due process of law”

4. © 2007 Robinson & Cole LLP DUE PROCESS Protection against arbitrary government decision-making Substantive Rational regulations tied to governmental purpose Procedural Decisions made in a fair manner

5. © 2007 Robinson & Cole LLP FUNDAMENTAL FAIRNESS Common-law right in administrative hearings, even in cases where no constitutional due process right exists

6. © 2007 Robinson & Cole LLP FUNDAMENTAL FAIRNESS Due notice of hearing to allow intelligent preparation No one deprived right to produce evidence No one deprived right of cross- examination

7. © 2007 Robinson & Cole LLP ROUTINE PROBLEMS Unruly participants Room conditions Proceeding too long

8. © 2007 Robinson & Cole LLP INSTITUTIONAL MEMORY How to handle recurring situations Scripted notice, posting, etc. Policy on continuances

9. © 2007 Robinson & Cole LLP WHAT’S REQUIRED? Notice Opportunity to be heard Cross-examination

10. © 2007 Robinson & Cole LLP WHAT’S REQUIRED? Findings of fact Unbiased decision-maker Prompt decision-making

11. © 2007 Robinson & Cole LLP WHAT’S REQUIRED? Create a record Written decision supported by reasons and findings of fact

12. © 2007 Robinson & Cole LLP FORMALITY Keep it informal Publish agenda and stick to it Tell everyone up front Rules of procedure Treat applicants as you would expect to be treated

13. © 2007 Robinson & Cole LLP NOTICE Local ordinances Who should get it? Applicant Neighbors Those who ask in advance Intervenors

14. © 2007 Robinson & Cole LLP OPPORTUNITY TO BE HEARD Fair and reasonable opportunity to present case Does not mean unlimited time

15. © 2007 Robinson & Cole LLP CROSS-EXAMINATION Rebuttal Can be direct or through Commission

16. © 2007 Robinson & Cole LLP FINDINGS OF FACT Basis for decision Formality instills discipline Arbitrary and capricious decision

17. © 2007 Robinson & Cole LLP UNBIASED DECISION-MAKER Predisposition No conflict of interest No appearance of impropriety No ex parte contacts Disclosure

18. © 2007 Robinson & Cole LLP PROMPT DECISION-MAKING Abide by Statutes Reasonable time otherwise Land development is time-sensitive

19. © 2007 Robinson & Cole LLP CREATE A RECORD What is a record? Testimony Documents  Staff reports  Generated by applicants  Brought in by citizens

20. © 2007 Robinson & Cole LLP WRITTEN DECISION Avoids memory lapse Support with record Easy to understand Furnished to all interested parties Timing

21. © 2007 Robinson & Cole LLP DEMONSTRATIVE EVIDENCE IS ESSENTIAL Subject Matter Requires Visual Aids What is Demonstrative Evidence?

22. © 2007 Robinson & Cole LLP EXAMPLES Site Plans Maps Architectural Renderings Building Elevations

23. © 2007 Robinson & Cole LLP Photographs Slides Movies, Videotapes Line of Sight Drawings

24. © 2007 Robinson & Cole LLP Models Floor Plans Diagrams Audio Recordings

25. © 2007 Robinson & Cole LLP EMPLOYING THE EVIDENCE REQUIRES Strategic Planning Selection and Use Requires Evaluation of Objective Review Submission Requirements Identify Complex or Confusing Issues Highlight Sensitive Issues Determine Budget

26. © 2007 Robinson & Cole LLP Identify Proper Team Member to Create Exhibits Ensure That Individual Who Will Use the Exhibit Participates in its Preparation Require Exhibits to be Produced for Review of Counsel Well in Advance

27. © 2007 Robinson & Cole LLP Make Sure Hearing Location Will Accommodate the Exhibits Bring All Support Equipment

28. © 2007 Robinson & Cole LLP PRESENTATION OF THE EVIDENCE Identify Exhibit and Lay Foundation for Introduction into Evidence Always Confirm That Exhibits Have Been Marked and Formally Received into Evidence

29. © 2007 Robinson & Cole LLP Attempt to Have All Exhibits Marked Prior to Start of Hearing Attempt to Get Exhibits Admitted into Evidence by Stipulation of all Parties to the Hearing

30. © 2007 Robinson & Cole LLP OTHER IMPORTANT EVIDENTIARY CONCERNS Legal Relevance Authentication or Identification Self-authentication

31. © 2007 Robinson & Cole LLP Contents of Writings, Recordings and Photographs While the Rules of Evidence do not Technically Apply in Most Administrative Hearings, It is Important to Build a Strong Record That Will Survive Any Appeal