Nationally, we are noticing a slight “uptick” in published case law addressing claims that public officials are “biased”, maintain a “conflict of interest”, or are otherwise unable to perform constitutionally their duties as to land use decisions. These “bias” claims are usually secondary in any challenge to a land use decision. That is, such claims are not the primary point of challenge but they serve two purposes: (i) such claims commonly form a backup to something more substantive, such as an error of law permeating the land use decision or a lack of evidence to support the decision, and (ii) they to feed a narrative of unfairness in the effort to upset the land use decision.
Public officials tend to live in the communities in which they appear as “public officials.” Public officials also tend to have a history of significant involvement in the communities in which they serve. Think about it: Pat Q. Public wins an election because he or she is so involved in the community. But, if our involved citizen wins an election based on the involvement and reaches the level of “public official”, can he or she render land use decisions touching on issues in which he or she was involved as a private citizen? Are we electing our best and our brightest, and our most involved, only to see those individuals disqualified from their charge?
A recent case from Connecticut case has us interested. It is Michalski v. Planning and Zoning Commission of Town of Darien, No. FSTCV146022017S (Super. Court. Conn. September 14, 2015) (unpublished), which can be viewed at 2015 WL 5976190.
In Michalski, the Darien Athletic Foundation, Inc. sought a decision from the Darien Planning and Zoning Commission to convert various playing fields to different surfaces and to change the size of some other playing fields. At a hearing, the plaintiff – opposed to the project – objected to the participation of commission member John Sini “on the basis of Sini’s previous role as a spokesman for the Darien Junior Football League (DJFL), a founding member of [applicant] DAF, in proceedings before the commission, as well as Sini’s previous role in helping to found and acting as a liaison for DAF.” Mr. Sini responded to the objection, stating “that he had no direct affiliation with [applicant Darien Athletic Foundation, Inc.] for the application, and that he would participate in the hearing in a fair and impartial manner.” With Mr. Sini participating, the commission approved the application. Plaintiff appealed, claiming, among other things, “commission member Sini’s conflict of interest, and his predisposition to grant the application”. The trial court held a trial and dismissed the appeal.
As to the conflict of interest allegation, the court gave some interesting guidance touching on the complexity of “bias” in local land use affairs: “The court finds the public policy expounded in Anderson and Brooks to be compelling and persuasive. Sini, like any other zoning commission member, has volunteered a significant amount of his time in service of his community. To require disqualification of members of administrative bodies, such as Sini, who have also volunteered their time to advancing causes in the community, whenever the subject matter of those causes fall under the purview of the administrative body in question, would be to severely hamper the activities of municipalities, whose commissions are generally composed of active community members. The court finds that Sini’s previous affiliations with DAF and DJFL did not require his disqualification pursuant to [Connecticut State law] and the court again notes that a review of the commission’s hearing and deliberation transcripts, and of Sini’s testimony at the evidentiary hearing on April 16, 2015, support the conclusion that Sini’s open-mindedness was not imperiled, and that he considered whether the application conformed to the regulations in a fair and impartial manner.”
This is not at all to say that conflict of interest, bias, and other threats to due process do not exist. Of course such circumstances do, and of course, such circumstances need to be addressed to safeguard the process to which landowners and the public are constitutionally entitled. Rather, it is to say that the “better angels” of our civic paradigms are not always and perpetually on the losing end.