Today I gratefully acknowledge the support of my friends. Brian just signed on. I appreciate the compliments on “Tech as Addiction” from Nia (whose newsletter is cited here) and Kenn. I also had the pleasure of meeting Substacker John Lovie on a trip to Whidbey Island last month. His recent post about the Golden Spike National Historic Site is highly recommended (1).
Now back to what I set out to do. Let’s talk about the role of public hearings in community work.
One of the deans of American land use law in his day, Richard Babcock (2), quipped that the last thing that happened at public hearings was listening. He knew from experience that, as typically conducted, they are performances; the applicant will talk about tax revenues, jobs, and property rights; the neighbors will talk about the traffic, neighborhood character, and their property rights; those sitting at the front of the room can anticipate every point.
Like Babcock, I have participated in hundreds of public hearings – mostly in the context of local land use planning, but also on water quality and other environmental issues - and want to share what I’ve learned. Because I prefer brief posts, there will be three installments of “Hearing Without Listening.” In this first one, I’ll talk about the reasons for public hearings and why so many of us find them frustrating. The second and third installments will each answer one question. Are there ways to make public hearings better? Is there a reasonable way to avoid so many public hearings?
Why Do We Hold So Many Public Hearings?
Short answer: Because the law requires them.
The statutory requirements for public hearings (and all they entail, giving notice, dealing with potential conflicts of interest, keeping minutes or transcripts, etc.) vary from state to state, and agency to agency. None of those differences affect what I have to say about the role of public hearings in community work.
That all these hearings are required does not really answer the ‘why’ question. The law requires public hearings for two reasons.
The first is obvious: We need a way to deal with land use issues that cannot be resolved by the straightforward, ministerial application of the law (3).
The second is because our legal system is adversarial. It evolved over the centuries as an alternative to wasteful bloodshed and treats all questions as disputes from which there will emerge a winner and a loser. Antonia Malchik has recounted some of the relevant history, beginning with the 1217 Law of the Forest, in On the Commons:
I’m not going to delve into the adversarial worldview, into why it is assumed that the outcomes of land use decisions (and litigation and elections) should be reduced to winning and losing, to being simpler than choosing a candy bar (4).
The adversarial assumption is inseparable from another; the Constitutional assumption that we each have inherent legal rights, including property rights, which must sometimes be defended. The reason public hearings often feel like such a trial (in both senses of that word), is that court proceedings were the mental model available to the lawyers who wrote the first zoning codes.
We are taught, therefore, that public hearings should be quasi-judicial. What does that mean?
The usual, theoretical, answer is that decision-makers should behave as impartial judges applying the law to a specific set of circumstances, that they should have no discretion that isn’t explicitly built into the law they are implementing. From a practical perspective, it means that the purpose of a public hearing is to arrive at a decision in a way that anticipates litigation. You assemble the facts, identify the applicable law, and determine compliance (or not), while keeping the clearest possible record of it all.
The upshot (and downside) is that public hearings are formal, rule-bound proceedings in which rational participants take and hold positions. They are not conversations.
Why Are Public Hearings So Frustrating?
The problem is that those of us who care about building community want a conversation. We want to be collaborative, to find solutions that serve everyone, to be creative. We want to see good development on the ground (5). All goals that would be better reached via a process that valued flexibility and compromise.
Public hearings are also frustrating because participation tends to be skewed toward those who have an interest in the status quo, while those who might benefit from a change – those who would like to live in a neighborhood, for example - are not present. My experience is that prospective residents are reasonably well represented by a real estate industry that wants to sell them a home. I’m more concerned that locals whose status in the community is not so secure, but who do the hard jobs that make the community work, seldom show up. And then there are our relatives who do not speak. The beaver and their stream don’t have a voice unless someone makes sure they do.
Despite all that, I follow the rules. I will explain a few ways in which public hearings can be improved in the next installment, but trying to turn deliberative proceedings into creative conversations is not an effective way to end our frustration. I’ll get to that in the third installment, to how we design a better land use decision-making process.
Good News!
Briefly, following up on land trusts, High Country News (to which you should subscribe if you are interested in Western community and environmental issues) reports that residents of communities devastated by wildfires are using community land trusts to acquire properties that would otherwise be bought up by outside investors for speculative gain.
And there is interesting news from Vermont. I won’t have to repeat it because you can find it on Substack at Compass Vermont:
Recent stories there describe how resort owners are beginning to focus on providing employee housing (an idea that should not, perhaps, be confined to resorts), the cost of an affordable housing project in Shelburne, the Governor’s housing initiative, and “mom and pop” investment. The explanations about the cost of affordable housing projects and how housing is attracting small investors are helpful. Governor Scott’s executive order makes building housing a clear priority. We’ll see how it plays out on the ground.
Inspirations!
After recommending Neil Postman’s Entertaining Ourselves to Death, I was interested to see Ted Gioia’s September 26 post of the more strident warnings from David Foster Wallace.
(1) Find it at: https://substack.com/home/post/p-174653051.
(2) Babcock’s books The Zoning Game (1966) and The Zoning Game Revisited (1985 with Charles Siemon) are from a different era. But he writes with humor and you may enjoy his story-telling if you play the zoning game on a regular basis.
(3) Libertarians question the need for collective decisions about land use, but that’s a different debate. IF government is going to make land use decisions, there will be a process. The question is: What kind of process?
(4) Just standing at the rack of candy bars as we wait to check out at the grocery store demonstrates that we can deal with multiple choices. In fact, we’d be distressed if there were only Snickers and Kit Kats. I’m not sure how binary thinking has become so embedded in our culture, but I am certain that it is one source of our collective dysfunction. I also note in passing that other societies have evolved legal systems based on different assumptions. We’ll come back to that.
(5) I’ve written before about the delight I take in helping get things built (see particularly the June 20 edition of this newsletter) or, where appropriate, conserved. Most planners are more risk averse than I am, but blaming them for the structure of the system is not just unfair. Its a good way to deceive yourself about how to effect change.
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