Whether there is a change in the use of the property regarding zoning or code variance, a redevelopment of the structures such as the construction of residential units such as a Planned Development, the need to apply for a Conditional Use Permit and/or meeting other governmental land use requirements, it often becomes necessary for a governmental public hearing to be held. In its most simplistic terms, a public hearing is an open gathering of officials and citizens, wherein citizens are permitted to offer testimony or comment before significant decisions are made to a public board, commission, agency, or other adopting entity.
Such hearings are often necessary when due process is required, or when a specific statute or local regulation requires one. A local government may also hold a public hearing when it desires public input on a sensitive or controversial policy issue.
In General:
Most public hearings are held by local governments and/or government agencies. While public hearings are typically required by law, the agency conducting the hearing is not required to base its decision on the views and issues presented at the hearing by the public. These public hearings only offer citizens a chance to share their opinions as to an adoption or direction by such an entity.
Proper notice must be given before reaching a decision that would impede upon one’s rights or interest to provide for proper due process. The proper notice gives those that may be affected or just opined, the opportunity to attend and prepare for a public hearing. All public hearings are on the record, meaning that all comments made and documentation presented is being considered by the legislative body. A permanent record of the public hearing is then made, in one or multiple appropriate forms. Certain forms of the record may then be destroyed after a finite time legally allowed,
Any decision under consideration should be made and be based on the factual evidence presented on the record, when applicable. When necessary, during or after the public hearing being closed, deliberation can occur outside the public view in a “closed session” to provide an opportunity for the matter to be deliberated in private before making any final or quasi-final determinations. Any decision then being adopted must normally be made in an open and public arena. An exception can be those matters taken under submission on certain types of hearings, allowing for a later written decision, within a limited time allowed under the applicable law.
Public Notice:
Generally, as there are very limited exceptions. The Brown Act (the state’s “open meetings law”) requires all Board discussions, contact, or actions to not be taken before, or outside of, but only during properly noticed and agendized public meetings.’ Additionally, a Board may approve by “consent” all items not requiring a public hearing. If a speaker card is submitted for a consent item, however, the item is pulled from the consent calendar so the Board may take public comment.
Public hearings must be publicized at required multiple times by notice published in at least one newspaper of general circulation within the jurisdiction at least ten (10) days before the hearing. Certain types of hearings must also be posted at the property involved, and/or a mailed notice to surrounding property owners, within a certain radius. The public hearing notice must include the date, time, and place of hearing, the identity of the hearing body, and an explanation and general description of the matter under consideration. Items for which a public hearing must be held cannot be approved on the consent calendar.
- Under the Brown Act: California Government Code 54950 et seq., passed in 1953, guarantees the public’s right to attend and participate in meetings of local legislative bodies. The express purpose of the Brown Act is to assure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.
- Regular meetings must also be noticed through the posting of an agenda at least 72 hours before the meeting. Special meetings may be called, but only upon 24 hours’ notice to each local newspaper of general circulation, radio, or television station that has in writing requested notice. The notice must be posted in a location freely accessible to the public. Only the business specified for discussion at the special meeting may be addressed. Emergency meetings may be called under specific, drastic circumstances. The 24-hour notice is not necessary, but a 1-hour notification of those media requesting notice is necessary if possible.
Legislative Hearings:
Used to gain public comment/input on matters which have an effect on the citizens of that locality as a whole, such as budgets, land uses, and zoning changes. Since legislative acts do not trigger constitutional due process rights, legislative public hearings are generally subject to fewer procedural requirements than quasi-judicial public hearings.
Quasi-Judicial Hearings:
Unlike Legislative Hearing which affects the general public, here the rights of specific identifiable parties are involved for matters such as variances, permits, and site-specific matters. The decisions made as a result of quasi-judicial hearings should be, and in some circumstances must be, based upon and supported by the “record” developed at the hearing. Quasi-judicial hearings have specific appeal rights to any person who wishes to appeal the decision(s) made. There may be judicial rights also available, but these are not addressed herein.
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.
