Tuesday, May 5, 2015

Commissioner's Corner: Should a Commissioner Be Permitted To Peak at a Google Maps View of a Project Site in a Quasi-Judicial Hearing?

It is hard to believe, but as of last night's hearing, I have now served on the Boise City Planning & Zoning Commission for exactly one year.  

Last night, I got to thinking about Google Maps.  As any P&Z commissioner knows, no matter how much information the staff provide in the official packet, there are just some intangibles about a project site that cannot be derived from aerial photographs and pictures of the site.  These days, with the ready availability of street-view programs, such as Google Maps, it is incredibly easy for a commissioner to simply type in the address of the project site and do a "virtual drive by" of the site.  

It is an incredibly valuable tool for getting a sense of the neighboring properties.  But here is my issue:  the Google Maps virtual drive-by is most helpful in quasi-judicial proceedings where heightened due process standards typically apply.  Moreover, the basis of the decision in a quasi-judicial proceeding is supposed to be supported by facts and findings on the record.  A Google Maps drive-by is not a part of that record; moreover, such programs are often a year or two out-of-date, which can make a big difference in a fast-developing area, and may not accurately reflect the neighborhood.  As a result, it appears to me there is at least a colorable claim that such Google Maps drivey-bys do not comport with due process requirements of quasi-judicial proceedings.  

Despite these potential due process problems, I would guess that a lot--maybe close all--planning commissioners use a Google Maps-style function in some form or another at least part of the time on quasi-judicial proceedings.  

So what are we to do?  Realistically, planning commissioners are not going to stop using these street view programs.  And so, should project applicants be asked at the time of application if they permit incorporating Google Maps (or some other maps service)  into the record of their proceedings?  Should staff simply incorporate Google Maps into the staff report by reference?   Has any planning department out there found a way to address this?  Is this a mountain or a mole hill?

https://lawprofessors.typepad.com/land_use/2015/05/commissioners-corner-should-a-commissioner-be-permitted-to-peak-at-a-google-maps-view-of-a-project-s.html

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Comments

Why not just provide the google maps information to all parties well in advance of the hearing?

Posted by: Jesse Richardson | May 6, 2015 3:02:33 AM

Can it be that the commission decides although not all members completed an in situ inspection?

Posted by: Ben Davy | May 6, 2015 8:25:28 AM

Jesse, I think that is what I was suggesting in including Google Maps in the staff report. The problem is that no one currently does this, to my knowledge. Also, Google Maps is dynamic in content, so it would need to be referenced as to a specific version. I'm not sure Google Maps presents itself in traditional versions, but maybe I'm wrong. Ben, my understanding is that in most states the question of whether there is improper information relied upon by a commission starts at the individual level. For instance, if there was improper ex parte contact with just one commissioner, that would typically taint the entire proceeding of a commission. (Of course, there are exceptions.). Thanks for the comments!

Posted by: Stephen Miller | May 8, 2015 7:51:07 PM