12/06/94 - Laserfiche WebLink

Home

NOVEMBER 1994 AMERICAN PLANNING ASSOCIATION Dealing with lBias and Conflicts of Interest By Mark S. Dennison Zoning officials must be mindful of ethical dilemmas and prevent improper influences from swaying their decision making. A landowner applying for variances, special use permits, rezonings, and other local zoning approvals is entitled to a fair and impartial decisionl by the local zoning body. If an official has a personal bias or conflict of interest regarding any aspect of the application, he should remove himself from the proceedings to ensure a decision free from any taint of bias. This issue of Zoning News e~amines various types of ethical dilemmas faced by local zoning and planning officials and offers guidance on how to handle potential conflicts and improper influences during the decision-making process. Bias and Conflicts of rinterest Although zoning ordinances and state enabling legislation provide standards and criteria for deciding variances and other types of applications, zoning decisions do not f~"""~ always turn on straightforward assessments of objective .... factors. Community pressures and outside interests often infiltrate the process and threaten an applicant's right to an impartial decision. Unfortunately, the ad hoc, discretionary nature of many zoning decisions exposes them ~o potential abuse and unfairness. Zoning officials are susceptible to community pressures, political ~--7~'~ influences, and personal bias because ~:~_______'~ of the localized nature of zoning regulation. Zoning officials are generally appointed because of their close contact with the community, understanding of community needs, and interest in promoting the public welfare. But an official's close:association with the community increases the chance of bias or conflict of interest arising in regard to a particular zoning'decision. zoning bias. On the other hand, most courts consider rezonings to be legislative in nature. The rezoning is presumed to be as valid as the enactment of the original ordinance, and the burden is on the challenger to overcome that presumption. 'The court will not invalidate the grant or denial ofa rezoning on grounds of bias or conflict of interest-~or for any other reason--unless the rezoning is clearly shown to be "arbitrary and capricious," "an abuse of discretion," "totally lacking in relationship to the public health, safety, and welfare," or some variation on the highly deferential standard applied to legislative acts. This legislative label may not settle the issue, however, because some courts will look beyond the legislative label to evaluate the type of rezoning action taken by the zoning body. [See, e.g., North Point Breeze Coalition v. Pittsburgh, 60 Pa. Commw. 298, 431 A.2d 398 (1981) (when a governing body applies specific criteria to a single applicant and a single piece of property, the governing body is acting in its adjudicative capacity and not its legislative capacity).] A minority of GURK~N OWN PROPERTY . 3 ~ OVER R. ~edman, $Iop Me Be~re I P~ A~im~ jurisdictions including OregOn, Washington, and Idaho make a distinction between comprehensive rezonings and piecemeal rezonings that affect single or small parcels of land. These courts characterize small parcel rezonings as quasi-judicial in nature. [See Fasano v. Board of Couno, Commissioners, 264 Ore. 574, 507 P.2d 23 (1973).] :: Quasi-Judicial vs. Quasi-Legislative Decisions The distinction between quasi-judicial and quasi-legislative zoning actions can be especially important in challenges alleging zoning bias. Some courts will'accord substantial deference to decisions labeled quasi-legislative, declining to question the motives for the zoning body's decision, notwithstanding the possible presence of bias or conflict of interest. For purposes of reviewing zoning decisions, this distinction arises predominantly in the context of rezonings. Courts universally agree that decisions on variances and special use permits, building permits, and the like are quasi-adjudicatory in nature and, therefore, subject to judicial review for evidence o¢ .... ~App.-.,D,,~?1986).] Impartiality Standards The law governing bias and conflicts of interest in zoning decision making has been refined through ongoing judicial analysis. A finding of zoning bias depends on individual facts and circumstances. If the evidence shows that a zoning decision was tainted, the usual-remedy is for the court to invalidate the decision because the biased decision maker should have disqualified himself fro'm participation. Courts have said. that when a zoning of~ial must disqualify himself because of bias or a conflict of interest, the disqualification is absolute and cannot be waived. [See, e.g., McVoy v. Board o/Adjustment o/the Township of Monxlair, 213 N.J. Super. 109, 5i6 A. 2d 634