By Jed Burkett

Land use regulation is one of the city’s most consequential powers. Planning and zoning decisions leave a lasting legacy, shaping the built environment for decades to come. Not surprisingly, these decisions often bring out strong feelings among residents who are invested in how their communities look and function today and into the future.

Navigating public participation in land use regulation can be challenging for city officials and residents alike. State law requires cities to hold public hearings throughout the process, but a city’s ability to consider public opinion changes significantly as it moves from land use planning to implementing those plans through zoning. Understanding and explaining where a city is in the process, and what authority it is exercising, can be a constant challenge, particularly when neighborhood opinion is strong.

Legislative vs. quasi-judicial decisions

The Municipal Planning Act provides the authority, framework, and process for cities to create and adopt a comprehensive land use plan, and then adopt or amend zoning and subdivision ordinances to implement that plan.

When a city adopts or amends plans and ordinances, the city council exercises legislative authority and has broad discretion to adopt ordinances that apply throughout the community. Once those ordinances are in place, cities are tasked with evaluating applications for zoning and subdivision approvals for specific projects against the performance and design standards established in the ordinance. They then determine whether and how a proposal meets those standards.

When applying existing ordinances to specific requests, such as conditional use permits or preliminary plat approvals, the city acts in a quasi-judicial capacity and has considerably less discretion than when acting legislatively. If an applicant meets the relevant ordinance, the applicant may be entitled to quasi-judicial approval.

The role of public hearings

Public hearings are required throughout the land use regulation process before both legislative and quasi-judicial decisions. When acting legislatively, cities must hold public hearings prior to adopting or amending a comprehensive plan, and before adopting or amending a zoning ordinance. Quasi-judicial decisions such as conditional use permits and preliminary plat approvals also require public hearings.

Public hearings should include a complete disclosure of what is being proposed, and a fair and open assessment of the issues raised. For a smooth public hearing process, the city council should adopt written policies and procedures for conducting public hearings.

One of the ironies of public participation in land use regulation is that often big crowds tend to show up at hearings for quasi-judicial approvals, a point in the process at which the city may no longer have much discretion to accommodate the views expressed.

Public input has the greatest impact early

Cities have much greater latitude to incorporate community perspectives at the beginning of the process when creating a comprehensive plan. A comprehensive plan sets forth a community vision and goals for the future, providing a foundation for the city’s land use regulations. The community develops a shared vision, and the city identifies strategies to achieve that vision over time.

Adopting and amending a comprehensive plan should be a dynamic public process with implementation in mind. Public participation helps build broad and ongoing support, brings diverse information and perspectives to the discussion, and fosters a sense of community ownership in the plan. A community engagement plan can be an important part of the comprehensive planning process by encouraging as much public participation and buy-in as possible.

Beyond the required public hearing, cities can use a variety of engagement tools, including open houses and written surveys to reach residents and gather feedback.

Considering public comments

The city’s role changes when it is acting quasi-judicially on applications for specific approvals under existing ordinances. Although public hearings are still required, neighborhood opinion alone generally is not a valid basis for the city to make a quasi-judicial decision for or against a specific application. This can be frustrating for residents who are invited to public hearings to offer comments.

When evaluating public comments, it can be helpful to distinguish between quantity and quality. A city may rely on well-supported testimony that presents facts related to the applicable ordinance criteria, but it should not base a quasi-judicial decision solely on unsupported or unsubstantiated opposition.

Engage early and often

Cities should engage the public early and often in the land use planning process. Resident input can have a much greater impact when communities are creating land use plans and ordinances, than when cities are administering regulations that are already in place.

Jed Burkett is a land use loss control attorney with the League of Minnesota Cities Insurance Trust. Contact: [email protected] or (651) 281-1247.