Appearance of Fairness Doctrine

Our land use lawyers routinely work with the Appearance of Fairness Doctrine, both as advocates within an administrative hearing process and in the role of city attorney who is charged with ensuring the hearing body complies with the doctrine.  The doctrine only applies to quasi-judicial bodies hearing applications for land use entitlements such as site specific rezones, variances, conditional use permits, preliminary plats, etc.  Administrative land use decisions (where there is no hearing) and legislative land use actions (even where there is a hearing) are not subject to the doctrine. 

When we represent the hearing body, we guide the decision-makers through a methodical disclosure process.  This involves making an inquiry of each member before each new day of the hearing (open record or closed record) into factors that could cause bias in the decision-makers or lead to the appearance of unfairness.  These factors include the occurrence of ex parte communications or matters potentially indicating a conflict of interest.  When this pre-hearing inquiry reveals some need for additional disclosure, we assist in ensuring that the relevant facts related to the communication or possible bias are made part of the record.  Then we provide an appropriate opportunity for the applicant or members of the public to challenge members of the hearing body.  This step is key because challenges are waived if not raised in a timely manner. 

Our “checklist” approach, which is tailored to fit each circumstance, assists our clients in conducting quasi-judicial hearings smoothly and fairly and will minimize litigation risk.