Friday, January 11, 2008

Democracy and the making of land use law …

   If the presidential election season doesn’t completely make one cynical about the workings of democratic elections, one can consider the significant role of “democracy” in the making of land use law.  For the most part, courts have applauded laws that require public approval of zoning changes (despite the obvious tendency that this gives to NIMBY and to ignore property “rights”) and courts often construe laws so as to maximize democratic participation.

Sierranevada   An example of this tendency was handed down this week by a California appellate court.  The Third District Court of Appeal held that a state law requiring a public hearing in front of a legislative body that is considering a zoning amendment must be noticed only AFTER the recommendation of the planning commission.  Accordingly, the Court held unlawful Sierra’s County’s practice of giving notice of the hearing before the planning commission made its recommendation.  The statute did not explicitly require such timing; rather, the interpretation “furthers the state’s policy and Legislature’s intent that the public be involved in the planning process and are ‘afforded the opportunity to respond to clearly defined alternative objectives, polices, and actions.’”  (Id. at 10, citing Cal. Gov Code sec. 65033.)  By requiring this timing, interested citizens have more time to prepare their responses to the planning commission’s recommendations.  (The case is Envtl. Defense Project of Sierra County v. County of Sierra, No. C055448 (Cal. Ct. App. 3d Dist., Jan. 9, 2008)). 

  Let’s hope that the public in Sierra County (population about 3600) takes advantage of this right and pays better attention to important public issues than the general American electorate shows in some of our presidential contests …

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