Wednesday, May 31, 2017

The Loneliest Battle:  Fighting for Procedural Integrity in Land Use Decisions:  A Case Study from Boise, Idaho

In addition to my work as a law professor, from time to time, I am asked to enter the fray in local land use decisions here in Boise.  Typically, this happens through the means of a request to a local neighborhood association to weigh in on a matter.  As a board member on a neighborhood association, I often assist in these land use issues.  Previously, I served about 20 months on Boise’s planning and zoning commission, as well, a post I left largely because of some of the issues I will discuss below.  In any case, I thought I would share some of what has been going on here in Boise, in large part because I have never encountered anything like it before, and it strikes me as an important case study in the importance of process in making land use decisions work.  As I note in the title, fighting for good process in land use decisions may be one of the “loneliest battles” anyone can undertake.  But as I’ll hope to illustrate below, where there is bad process, the whole planning apparatus can quickly devolve into a sham.  In Boise, what purportedly applies in outward facing principles—such as those announced in the comprehensive plan and other city documents—is vastly different from what happens in practice.  When stated law and practiced law diverge as greatly as they do in Boise, there is significant room for mischief to enter.  Justice Scalia once put this in stark relief:

Reasoned decisionmaking, in which the rule announced is the rule applied, promotes sound results, and unreasoned decisionmaking the opposite. The evil of a decision that applies a standard other than the one it enunciates spreads in both directions, preventing both consistent application of the law by subordinate agency personnel . . . , and effective review of the law by the courts.

Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 375, 118 S. Ct. 818, 827, 139 L. Ed. 2d 797 (1998).  When I teach administrative law, I always linger over this passage by Scalia because, regardless of your political proclivities, he is right on this one:  where a decision diverges from its stated standards and, with subterfuge, works to implement another standard, there is an “evil” there that upends the entirety of the decisionmaking process.  In the land use context, I suggest that there is another problem:  where such divergence occurs, there can be a loss of faith in government, suspicions of corruption, and ultimately, either a resolve to “kick the bums out” or an apathetic retreat from institutions altogether.  But I get ahead of myself.  Here is what goes on.

Background on Boise’s Planning Process

On the surface, Boise’s planning process looks like almost any other Euclidean-based zoning code in the country.  There is a modestly progressive comprehensive plan that exclaims a desire to make Boise “the most livable city in America,” a land use map and zones that implement the plan (conformity requirement in Idaho, but nothing more), and the usual dose of discretionary entitlements such as conditional use permits and planned unit developments. 

But it is how the process is managed that the structural problems begin to seep in.  Here is the general gist.  Every project application that goes before the planning and zoning commission gets an “approve” recommendation from staff in the staff report.  The staff report is also problematic because, on a prefatory page, there is a summary paragraph that is referred to as the “Reason for the Decision.”  Then, on the second page of the file, there is a title called “Planning Division Project Report,” which is followed by a table of contents, which includes two important sections”  “Analysis/Findings,” and “Recommended Conditions of Approval.”  More on the interplay between the “Reason for the Decision” and the “Analysis/Findings” in a moment (though the administrative law junkies out there are likely to see problems emerging:  a reason for the decision that is separate from the findings…what?!). 

The staff report is delivered to the public and the planning and zoning commission at the same time, about 10 days before the hearing.  The commission never holds working groups, and because Idaho has strict ex parte laws, there is no communication between commissioners and the project sponsors or opponents.  The project description is strictly a one-time “on the record” proceeding.  Staff expressly tell the commission not to defer but instead to vote up or down.  Staff also strongly oppose the commission making any of their own conditions of approval.  Because Idaho has no environmental review and its state land use law does not otherwise dictate it, there is never a project alternative provided by the project applicants.  So, what happens is that the staff report essentially dictates the terms of the approval and the commission just votes yes or no.  Almost all of the time, the commission votes yes.  If there is no appeal on an approval, the project sponsor goes forward and builds and that is that.

Community involvement is elaborately stage-managed to be ineffective.  The application for almost any project goes live in a computer-based system about a month before the project is heard at the commission.  There is also very circumscribed notice; the city refuses to provide notice to anyone but for close neighbors and the immediate neighborhood association.  Project applicants must have a neighborhood meeting; however, they almost always come with the completed plan, tick off the meeting, and then proceed with their plan anyway or offer some very minor change.  There is hardly ever a real effort to engage the community prior to design.  In addition, the city takes the perspective that it does not have to respond to any of the community testimony or alternatives other than “objective facts” so long as their position is supported in the record.  It is unclear what the city considers to be an objective fact, but I have never seen the city believe that it has encountered one presented from the community.  Instead, any community opposition or proposed alternative is universally derided.  Presumably, an “objective fact” would be an alternative study conducted by an expert.  But again, consider the time frame:  because the city has sped up the discretionary permitting clock, there is not really time to even hire and conduct a alternative expert study.  As a result, the process stacks the deck against the community in input.  The courts have also conspired against meaningful process through an elaborate standing doctrine; as an example, the Idaho Supreme Court just recently held that one of the largest farmers in a fast-developing county, whose family had farmed in that county continuously since the late nineteenth century, did not have standing to challenge comprehensive plan updates.  (Case available here: 

When the commission votes to deny a discretionary permit, the city traditionally wrote up a brief, several sentence description of the oral hearing and then sent that as the “reason for the decision” to the project sponsor.  Developers’ attorneys had a field day with this.  Notably, Idaho law requires the commission to make the findings, and here the findings were written by the staff and never approved by the commission.  In large part because of my objection to this process, the staff now get the commission’s approval of the “reason for the decision,” but it remains a several sentence rambling description of what happened in the meeting.  Of course, developers attorneys continue to have a field day with this:  any student who has passed through an administrative law class knows that there are requirements for findings that are embedded in the legal standards that apply to quasi-judicial decisionmaking.  For some reason, Boise refuses to acknowledge this.  And so, whenever a project is denied, the developers’ attorneys, who appear to be the only ones in Boise who took administrative law, line up and make all the right arguments about the paucity of findings, a lack of substantial evidence and the arbitrary and capricious nature of the decisionmaking.  The city council, seeing a clear violation and attorneys fees coming out of general fund coffers, almost always back down and approve the project.

So, let us summarize.  A project sponsor wants a discretionary permit.  The staff write a staff report with a “reason for the decision” and “findings.”  The staff recommendation is always “approve.”  The commission, largely kept in the dark about the project and told to vote just yes or no, almost always votes yes.  When the commission votes no, the staff draft a legally insufficient “reason for the decision,” developers’ attorneys pounce, and the city council retreats fearing a loss and approves.  In short, one way or another, no matter what the comprehensive plan says, no matter what the community says—and note how law is used to isolate the community—every project is either approved, or because of sloppy process, ultimately gets approved after an initial denial.  In the words of Scalia, here we have the “evil of a decision that applies a standard other than the one it enunciates.”

Procedural Appeals of Land Use Decisions in Boise:  Does Anyone Understand What Is Going On?

I just filed my first appeal of a commission decision and it goes before the city council next week.  Obviously, my hope is that the city council will simply reverse the decision of the commission—in this case, a highly suburbanized school design for one of Boise’s urban neighborhoods—but I have also been somewhat shocked by how both the city, as well as a leading attorney hired by the school district, have displayed their knowledge of land use administrative procedure.  In both instances, it is so shockingly incorrect, I cannot decide if it is a purposeful misrepresentation of the law, or if really no one understands what they are supposed to be doing.

Tracking the applicable standards of land use appeals in Idaho is actually quite easy for a national audience.  Idaho’s land use planning enabling act incorporates the judicial review provisions from the Idaho Administrative Procedure Act, or “IDAPA.”  The most common of standards of review in quasi-judicial decisions are familiar to most land use lawyers:  lack of substantial evidence; arbitrary and capricious decisionmaking; and procedural error. 

Both the city’s memo in response to my appeal, and the school district’s attorney, seem to have no familiarity with these standards, much less what they stand for.  This is made even weirder by the fact that Idaho has largely “federalized” these standards:  state court opinions have largely adopted federal interpretations of how these standards operate within the context of federal administrative law and made them applicable to Idaho state law.  This makes sense for a small state without much litigation, but it seems to have largely confused the local bar.

Take, for instance, this sentence from the school district’s attorney:  “The appellants allege that the Commission’s decision was not supported by substantial evidence in the record making the Commission’s decision arbitrary.”  Is anyone else cringing?  In other words, the school district’s attorney conflates the two major standards of review into one.  Of course, that is completely incorrect, which is why “substantial evidence” and “arbitrary and caprious” review are two separate standards of review.  Things go downhill from there.

Similarly, the city’s memo in response to my own seems to lack basic understanding of the administrative process.  The city attorney gets hung up on a provision in the land use planning enabling act that requires a “reasoned statement” (I.C. § 67-6535 (2)).  True, that is what the planning act references; but the city attorney seems to have no idea of the standards to which such a statement will be held in court.  Moreover, the city attorney chastises my reference to the need for “findings” because that term is not used in the statutory section of the land use planning act requiring the reasoned statement.  Apparently they are unaware of the provisions governing judicial review to which that statement must ultimately be accountable.

Here, I think, is where the incorporation of the IDAPA standards has confused both the city and the school district attorney.  Because neither seem to have even a passing familiarity with the requirements of the substantial evidence standard or the arbitrary and capricious, or “reasonableness” requirement.  Of course, the substantial evidence test is there to ensure basic fact-finding, while the arbitrary and capricious test is there to ensure analytical reasoning comports with statutory requirements and basic requirements of reasonableness.

For the uninitiated, Idaho case law has largely imported the Universal Camera definition of “substantial evidence.”  Here is how the Idaho Supreme Court summarized it:

[i]n deciding whether the agency's findings of fact were reasonable, reviewing courts should not “read only one side of the case and, if they find any evidence there,” sustain the administrative action and ignore the record to the contrary. Universal Camera, supra, 340 U.S. at 481, 71 S.Ct. at 460; quoted in Local 1494, supra, 99 Idaho at 634, 586 P.2d at 1350. Certainly reviewing courts should not “displace the [agency's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” [Citations omitted.] Nevertheless, reviewing courts should evaluate whether ‘'the evidence supporting that decision [under review] is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the [agency's] view.” Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. at 464; quoted in Local 1494, supra, 99 Idaho at 634, 586 P.2d at 1350; accord, Local One, Amalgamated Lithographers v. National Labor Relations Board, 729 F.2d 172, 175 (2d Cir.1984).

Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257, 260–61, 715 P.2d 927, 930–31 (1985) [note:  because Idaho imports this IDAPA provision to local land use decision review, much of the case law references agencies but is also relevant to local governments in land use decisions].  What this basically means is that an agency essentially gets deference to its fact-finding but there must be some findings of fact that address the whole record including that which is “contrary” to the decision.  This requires findings.  Maybe the best known statement of this is the “basic facts”—what the project is—into “ultimate facts”—the project as compliant within the terms of the statutory findings--requirement of Saginaw Broadcasting, another federal case adopted by Idaho courts.  That is more than a rambling "reason for the decision."

Of course, this standard is where things get weird for the city.  The “reason for the decision” clearly doesn’t meet this standard,” but on the other hand, the findings in this particular report express equivocal analysis and, in fact, many reasons why the school district should not have been given the permit.  In other words, the “reason for the decision” is not findings as required for substantial evidence, but the findings actually illustrate that there was severe reservation by the planning department.

Another confusion both the city and the school district make is that, now, they want to point to other evidence in the record as support for the commission’s finding.  But the whole point of the findings requirement is that the commission has to clearly state what facts they relied upon in making the decision.  They don’t do that in this case and, bizarrely, the city does not believe it has to do so.

Another confusion is that the bargain for deference in the substantial evidence test is that the zoning board needs to address what is “contrary,” or in the words of Universal Camera, “detracts from” the holding.  This is a very modest requirement—Universal Camera calls for “more than a scintilla”—but it can’t be nothing.  Here, my memo points out numerous provisions of the comprehensive plan that clearly are violated by the project; however, the city and the school district claim that there is no need to address these contrary matters. 

The city and the school district also do not seem to realize that the “reasoned decision” requirement is based upon the reasonableness requirement of case law, both Idaho specific and federal law that has been brought into Idaho law.  This reasonableness requirement is stated in one way here: 

For “effective judicial review of the quasi-judicial actions of zoning boards, there must be ... adequate findings of fact and conclusions of law.” Workman Family P'ship v. City of Twin Falls, 104 Idaho 32, 36, 655 P.2d 926, 930 (1982). Conclusory statements are not sufficient; instead “[w]hat is needed for adequate judicial review is a clear statement of what, specifically, the decisionmaking body believes, after hearing and considering all of the evidence, to be the relevant and important facts upon which its decision is based.” Id. at 37, 655 P.2d at 931 (quoting S. of Sunnyside Neighborhood League v. Bd. of Comm'rs, 280 Or. 3, 21–22, 569 P.2d 1063, 1076–77 (1977)). . . .

Cowan v. Bd. of Comm'rs of Fremont Cty., 143 Idaho 501, 511, 148 P.3d 1247, 1257 (2006).  Another Idaho case states the reasonableness requirement as requiring the action to be supported by a rational basis with regard to the facts and circumstances presented with adequate determining principles.  “Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.”  Enter., Inc. v. Nampa City, 96 Idaho 734, 739, 536 P.2d 729, 734 (1975).  Both the city and the school district do not seem to realize that this is a separate reasoning requirement, which requires the commission to articulate its decision.

The city and the school district also do not believe that they need to address any proposed alternatives provided by the community.  State Farm, anyone?

Perhaps even more remarkably, the city argues that a reliance on comprehensive plan policies is “subjective.”  However, it is a discretionary permit and the key question in a discretionary permit is almost always whether it complies with the comprehensive plan.  This is a fundamentally subjective analysis, but that is the analysis that is called for by the city’s permit.

Where Do We Go From Here?

What this initial foray into appeals in Boise has taught me is that there is either not a strong understanding of the basics of administrative law that undergird land use decisionmaking, or there is such a disconnect between the applicable standards as announced, and as practiced, that the land use law in Idaho is without any meaningful mooring as practiced.

I don’t know where this goes, and how much further I will pursue it, but I have found the experience troubling.  It evinces to me a department, and a planning culture, that fundamentally does not believe in—and does not even care to—understand the procedural rules by which the game is played.  The process, of course, is there to keep decisionmaking honest.  Scalia again:  “’Substantial evidence’ review exists precisely to ensure that [a government] achieves minimal compliance with this obligation, which is the foundation of all honest and legitimate adjudication.”  Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 378–79, 118 S. Ct. 818, 829, 139 L. Ed. 2d 797 (1998).  My fear, in Boise, is that we are so far beyond honest and legitimate adjudication that even basic application of the rules won’t happen without sustained litigation to force it.  That saddens me, but it makes me wonder how common this is in other places.  These administrative law standards that apply to land use decisions are tricky and complicated.  How realistic is it to expect local governments out on the sagebrush steppe to comply with them?  But if they are too complicated for a remote place like this, what are the processes that keep honesty and legitimacy at the fore, and keep people believing in their local governments?  What keeps people from apathy in the decisionmaking process, and believing that the whole lot of them are against the people, or even worse—bought off and corrupt?  

What is there to build a sustainable future with if the law is not enforced as it is written?

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. . . at the point of their intersection. In my experience, it is rare to find municipal lawyers who know or care to know dirt law. And if they do, it is all about real estate, not about community standards for health, safety and sustainability.

Posted by: Kermit Lind | Jun 1, 2017 8:28:56 AM