[OPINION] P&Z Candidate: What We Can And Can’t Say

John Bolton is an attorney, and a Republican alternate on the Planning & Zoning Commission. He’s running for a seat this election

Candidates for the P&Z — and other town boards like Finance, Education and the Representative Town Meeting — have fielded plenty of questions recently about their stances on important issues.

Some responded directly. Others have been oblique, or not answered at all.

Bolton explains today what he and his running mates feel they can — and cannot — say about these issues.

As candidates for the Planning and Zoning Commission, we have often been approached by constituents asking where we stand on 2 key issues this election cycle: Parker-Harding project (since withdrawn but not going away), and Long Lots School/Community Gardens.

Although we are less than a week away from the elections, the timing is right for our Republican slate of candidates to provide some clarity on these issues – as much as the law allows.

Planning & Zoning Commission candidates, at last month’s League of Women Voters debate. John Bolton is 2nd from left.

What the Law Allows

Any matter brought before the P&Z Commission must be received with complete impartiality. That means ultimately we will render our determination(s), and act with indifference in doing so.

As commissioners, our primary motive will always be to issue a proper decision under Westport’s Zoning Regulations. Where discretion is afforded to commissioners, our standard will always be what is best for Westport. Much of that standard will be predicated upon the input we receive from you, the voters.

The Planning and Zoning Commission is a quasi-judicial and legislative body where objectivity, evenhandedness and impartiality should always rule the day.

It is about equality, and will always be about equality for every applicant and stakeholder that comes before the commission.

When deciding on a specific matter we are limited to act on the evidence presented during a hearing. We do not pursue our own independent investigations of the facts presented or expected to be presented.

We will always entertain feedback and input from our constituents, but we cannot be swayed, guided, or influenced by anything not presented at a fair hearing.

We act as ambassadors and gatekeepers for economic development, environmental conservation, individual property rights, and every stakeholder in this town.

We also retain plenary power to review town projects that fall under the purview of Connecticut General Statute 8-24. which governs municipal improvements.

When improvements are proposed for a town property (like Parker Harding Plaza, above) the Planning & Zoning Commission holds an 8-24 hearing. (Drone photo/John Videler for Videler Photography)

At the very core of our democracy is the notion of equality. Every applicant and stakeholder that comes before our commission has an unalienable right to be treated fairly.

Predisposition and bias to a particular matter can be revealed in many subtle forms. “I really like the architect or the attorney representing the applicant” or “These folks have already done so much for Westport”.

While these examples are benign and likely have little relation to a specific application or text amendment, they could also be signs of a predisposition that undermines the commission’s impartiality in the treatment a particular applicant receives. We are mindful of the many forms for which bias can be revealed.

If we as candidates for Planning & Zoning were to opine or critique on a matter before a scheduled hearing, or before receiving an 8-24 application from the First Selectwoman’s office, or during the intervening time between a continued matter, we would place in serious jeopardy an applicant’s procedural and substantive due process rights.

What is Procedural Due Process?

Procedural due process requires a minimum standard of fairness during the process of making public decisions that impact private rights. Relevant standards include proper public notice; a fair hearing which allows for the presentation of all sides of an issue; reasonable and impartial standards for decision-making; accurate and accessible public records, and assurance that public decisionmakers act without bias or conflict of interest, including avoidance of ex parte contact.

While some aspects of procedural due process can seem overly detailed or a series of technicalities, the importance of assuring procedural compliance cannot be over-emphasized. Violation of procedural due process is the most common way that planning and zoning decisions have been successfully challenged.

What is Substantive Due Process?

Substantive due process invokes more conceptual and esoteric requirements for planning and zoning decisions. Substantive due process protects private citizens against arbitrary or capricious public decisions made administrative boards.

By the same token, it also requires that the regulations, limitations and safeguards we as a commission implement have a rational basis for their adoption, and are reasonably related to the public health, safety and welfare of our town.

The Planning & Zoning Commission will also discuss the Long Lots Elementary School project. (Drone photo/Brandon Malin)

A salient and hypothetical example of substantive due process is when the commission receives a master plan for remediating a large municipal parking lot. When a determination is rendered, and it’s based on the substance of that master plan, the central questions are:

Did Westport’s plan of remediation (in the hypothetical above) deprive any stakeholder of their life, liberty and property?

If the answer is “yes,” was this action justified by a compelling state interest and a sufficient purpose?

The Voters Want to Know

In relation to the Parker Harding project and the Community Gardens issue, the former was scheduled for a continued hearing on November 6. However, as of October 31 the First Selectwoman withdrew the 8-24 application from any consideration – for now.

Parker Harding is still a wide open issue that will ultimately come before the P&Z Commission in the near future.

As it relates to the Long Lots school, an athletic field and the Community Gardens, as of November 1 no 8-24 application has been presented to the commission. Rest assured, it will come — and not too far down the road.

For candidates to opine on both the Parker Harding and Long Lots/Community Gardens matters before November 7, and before any scheduled evidentiary hearings as noticed by the town, would patently imperil any notion of due process.

We understand why we are being asked about these matters before the election.

We encourage public participation, and the electorate doing its due diligence before voting next week.

We believe in transparency. We always will.

However, our refraining from offering an opinion on both matters is not a choice, but a legal obligation.

For those trying to elicit an opinion from your 4 candidates as merely private individuals as opposed to public officials, that distinction does not mitigate the risk of undermining due process. And it far outweighs any perceived benefit from a premature statement before all of the evidence has been submitted.

Bolton went on to note the importance of recognizing the multiple stakeholders who will be affected by both projects, including downtown merchants, children, gardeners, taxpayers and more. In fairness to all P&Z candidates, I have included here only his insights into due process and related issues, which apply to candidates for many offices.