Hearing Without Listening II

How to Have Better Public Hearings

Hello again! It turns out that I’m not the only one talking about tech as an addiction. This quotation is from a speech by Tim Estes that was transcribed on Commonplace:

For all of history, our tools were meant to extend our grasp—a hammer for our arm, a computer for our mind. But the business model of Big Tech has inverted this promise. Their goal is no longer to empower you, but to capture you (1).

I am happy to have it affirmed by someone with whom I do not agree on much else, that tech is, in his words, a “digital narcotic.”

Now, back to work:

Let’s begin this second installment of “Hearing Without Listening” in the basement of a thrift store in a small town in the Rockies. Judging by the shelf the kids and I are browsing, a local law office has cleaned house. For $1, I can buy a barely used copy of Winning at Zoning by Dudley S. Hines. I once owned this book, too, but tossed it in the trade pile 30 years ago. I’m happy to see it pop up, though, because the title confirms what I said last time about our legal system.

Formal land use decision making is part of a legal system that is about winning (and losing, though that’s seldom said). It will never be generative – will never take us to better land use policies - because it is not intended to be. But, since we’re required to have them, let’s make public hearings better.

The key word in achieving that (as in so many other pursuits) is clarity, specifically clarity of purpose. If the purpose of a public hearing is to determine compliance with the regulations, why do we have to hear people ramble on about affordability, property taxes, neighborhood character, and property rights?

The discussion of those things has a rightful place in the community conversation, but not in determining whether a particular application for a permit complies with the applicable rules. So: Keep Hearings Focused!

To do that, use “decision hygiene,” a delightful phrase I learned from reading Noise: A Flaw in Human Judgment (2021) by Nobel Laureate Daniel Kahneman and his associates Olivier Sibony, and Cass R. Sunstein. Decision hygiene is the art of accounting for and avoiding the biases to which we are all subject, and arriving at the best decision given the present circumstances. Good decision hygiene requires us to think about both the who and the how of public hearings.

Who?

The people who invented zoning were part of the Progressive Movement of their time and, as such, deeply suspicious of corruption in government (2). Their 1926 Standard Zoning Enabling Act authorized the administration of zoning by appointed bodies, a zoning commission and a board of adjustment (BOA). Elected officials had the final say about the content – the zoning map and text – but appeals from decisions of the BOA were to be sent directly to court.

Only a few states have held on to that original impulse to limit the role of elected officials. Vermont is one. Discretionary decisions here are made by an appointed development review board (DRB). There is no appeal from the DRB to the electeds. Appeals go directly to a specialized environmental court. This system is one of the reasons our town has been able to transcend sprawl as its main mode of development.

YIMBYs would gain ground if they could – and they seem to like lobbying – influence state legislatures to reduce the role of elected officials (and, thus, mere popularity) in quasi-judicial land use decision making. I doubt they’ll make much headway in these partisan times. But there is a potentially helpful alternative.

Long experience with poorly run public hearings led the Washington legislature to authorize cities and counties to use hearing examiners (3), and that is now widespread. It seemed to be effective when I worked there years ago. Perhaps a reader from the Evergreen State can comment on its current status. Hearing examiners are also used in other places, including Maryland.

How?

Who and how blur here because a strong presiding officer is important in the conduct of public hearings. But that person must be empowered by the hearing procedures. Fortunately, it is usually easier to change those – they are often embodied in bylaws that a planning or zoning commission can change on its own motion – than to amend state law or change locak land use regulations.

So, here is what I have learned about how to set up and manage public hearings. This procedure is not typical, and may meet resistance from those who reflexively resist change. But it works,

1. Never act on an incomplete application. NEVER. If you find yourself needing more information during a hearing, your application process has failed. Make application requirements clear and detailed. Empower staff to determine whether an application is complete BEFORE a hearing is scheduled.

2. Make the hearing procedure clear. An Idaho friend taught me to print it on the back of the agenda. I’ve also hung it on the wall as a poster and it can easily be converted to slides. However you do it, give everyone the ability to follow along.

3. Answer questions BEFORE taking statements. A well-run hearing produces clear statements from those who testify. But participants almost always want to ask factual questions, which necessitates a dialogue between those who have questions and those who can answer. You can keep the record of the hearing free of that give-and-take, by conducting a question-and-answer session before the hearing. The presiding officer just has to insist that factual questions do not morph into statements.

4. Once the factual questions are answered, begin the hearing with a statement of purpose. The presiding officer should make it clear that the purpose of the hearing is to determine compliance, then enforce that rule.

5. Never let the applicant speak first. NEVER. One of the reasons people perceive the process as unfair is that it so often seems to favor the applicant.

Here is where decision hygiene is critical! I direct you to Noise (pages 322-324 in the edition I have). Colleague Kirk Wickersham and I figured this out in the late 1970s (4). We didn’t get a Nobel Prize, but wherever we have persuaded a community to follow these practices, the credibility of the land use decision making process has improved.

6. Begin with a staff report that is organized by a detailed compliance checklist. Impress upon your staff that, as with wit, brevity is the “soul” of a useful report.

7. After hearing the staff recommendations, the decision makers review the checklist and decide what is at issue. On which items do they disagree with staff or have a question? Land use regulations include numerous details with which compliance is routine. You don’t need to discuss those details if you agree with the staff report.

8. Once the decision makers have made their list, the presiding officer asks those present to add to the list. Give the applicant the courtesy of going first now, but allow everyone to add to the list. Admit no discussion though. You’re just making a list.

9. When the list is complete, work through it one item at a time, taking statements from the applicant and the public. The decision makers may ask questions after each statement. Then – this is critical – decide about that item before moving on: Does the proposed project comply with that specific requirement or does it not?

The heart of decision hygiene in this context to avoid confounding issues. This means that the applicant and other participants may speak multiple times, each time about compliance with a specific checklist item. That’s not what people are accustomed to, but it means that statements will be focused on compliance. It also means that there will be no question about why the application was approved or denied. You don’t want a judge to have to sort that out!

NIMBYs will still be able to address traffic and infrastructure. But their statements cannot be general. They will have to speak to tangible checklist items like intersection capacity ro what the sewage treatment plan can handle. Neighborhood character will also have to be addressed item-by-item (5). What’s not compatible about that proposed apartment building if it complies with the rules? Conducting hearings in this way will help shift the NIMBY-YIMBY battlefield from case-by-case drama to the hard work of getting the rules right.

10. When the listed items have been discussed and compliance with each determined, it will be obvious whether the application is approved or not. The decision makers can adopt a master motion incorporating the noncontroversial staff findings with their decisions on each item.

This procedure may sound laborious, but it seldom turns out to be. How many points of contention are there in most cases? If frequent applicants (6) learn the system and staff does its job, most hearings will be brief and boring.

It is best to have land use rules that are structured to support good decision hygiene. We’ll get to that next time. But this procedure can be adapted to less than the ideal. Give it a try!

Good News! Presenting that detailed hearing procedure made this newsletter longer than I like them to be, so I’ll skip this feature. Readers are welcome to post good news in the comments.

Inspirations. I will let Noise, as cited above, stand as my reading recommendation for this edition. The book is organized so you can scan, finding what seems helpful.

(1) Here’s a link to the Estes speech:

AI, Dignity, and the Defense of the American Family

(2) It is common these days to brand those men as bigots. It is true that what they created has been used for exclusionary purposes. It is equally true, though, that the Progressives battled the political “machines” (the establishment) of their time) in an effort to make cities and the larger society less corrupt, healthier, more functional, and more beautiful. The remedy of sheltering, at least trying to shelter, case-by-case land use decisions from partisan politics is a tiny part of a legacy that should be seen whole, not just for a lamentable downside.

(3) See https://mrsc.org/explore-topics/planning/proceedings/hearing-examiners for an introduction to how hearing examiners are used in Washington. I add that the MRSC is a good resource for many questions about municipal governance. It always focuses on Washington, but is often broadly applicable.

(4) I’ll explain the origins of this methodology in a future newsletter. It all goes back to trying to get the American housewives of the 1940s to serve kidneys. Really!

(5) A note about that big YIMBY boogeyman “neighborhood character:” When I hear complaints about rules intended to protect the distinct qualities of a place, I wonder if YIMBYs think the Earth is flat and just waiting to be platted into appropriately small lots. Or if they think that intoning that “change is inevitable” is convincing. They need to re-frame how they approach this. I’ll try to get to that in a future newsletter.

(6) Some of you may wonder if this hearing process will be intimidating to infrequent applicants. The whole process - preparing an application as well as having it reviewed - can definitely be difficult for the inexperienced. The solution is to direct (and train!) staff to serve as coaches for those who need it.