Date: January 2022
County commissioners wear many hats as elected officials. A board may sit and act as a ditch authority one day, a health board another day or a decision maker on a land use matter yet another day. When making board decisions related to land use, they generally fall into one of two categories: quasi-judicial decision maker or policymaker. Failing to appreciate the differences in the two roles may create issues and potential litigation for a county and its commissioners.
A legislative act can generally be said to be one that affects the rights of the public as a whole versus a decision affecting one person or making a determination as to one situation. When enacting ordinances, commissioners are acting in a legislative capacity. Such actions involve the exercise of discretion, where the commissioners are balancing competing concerns and choosing among various public policy alternatives. Commissioners may and often do advocate for a certain position or policy. Such advocating is part of the legislative process, entirely appropriate, and recognized as part of the function as a policymaker.
Contrast that with permitting decisions in land use matters. When making decisions about land use applications, a county board is acting in a quasi-judicial capacity. The decision affects the rights of one person or a small group versus the public at large. There are three components present when undertaking a quasi-judicial act.
First, there is some type of investigation into a claim—disputed or otherwise—involving a gathering of evidentiary facts, as well as a weighing of those facts. Second, those facts are then applied to a prescribed legal standard. Third, the county makes a binding final decision regarding the claim or situation, subject only to later judicial review.
When making a quasi-judicial decision in the land use area, a county board is undertaking an adjudicative process, gathering facts and applying specific standards in a zoning ordinance to the specific facts gathered, and then making a decision that applies solely to that set of facts. It is quasi-judicial because as a board member, the commissioner is acting as a fact finder (jury) would in a judicial setting, and as a judge in determining and applying the standards (the law) to the facts.
Because of that, different standards apply to commissioners as a quasi-judicial decision maker than when a commissioner acts as a policymaker, undertaking a legislative act. Premature decision making, bias and advocating for a certain outcome can, when wearing the hat of a quasi-judicial decision maker, result in a court determining that the individual in question did not get a fair and impartial decision maker.
Although several years old, one case that best illustrates how blurring the lines between policymaker and decision maker can create litigation and overturning of a land use decision is Continental Property Group, Inc. v. City of Minneapolis.1
This case shows how important it is for commissioners to understand the restrictions that may be placed on them when acting in a quasi-judicial capacity.
In 2003, Continental Property Group Inc. (CPG) purchased an option on property located in the Loring Park area of Minneapolis. To build its desired development, CPG applied to the Minneapolis Planning Commission for two necessary conditional use permits and two variances from Minneapolis’ zoning requirements.
In August 2004, the city’s Community Planning and Economic Development staff reviewed the application and issued a report that recommended that the Minneapolis Planning Commission deny the application. The commission did so later that month.
CPG appealed to the Minneapolis City Council in September 2004. The 13-member body consists of numerous subcommittees. The Zoning and Planning Committee is made up of five council members, including at the time Lisa Goodman. The proposed development was in Goodman’s district.
On Sept. 15, the Zoning and Planning Committee unanimously voted to deny CPG’s application. Then the complete council unanimously voted to deny CPG’s application Sept. 24.
Despite the city council’s decision, CPG exercised its option to purchase the property. The company later submitted a new conditional use permit application, which staff recommended that the Planning Commission approve. CPG later withdrew its application. The city imposed a development moratorium in 2005.
Two years later in March, CPG sued the City of Minneapolis alleging that its decision on the 2004 application and the 2005 moratorium were arbitrary and capricious, and violated the company’s due process and equal protection rights, entitling CPG to relief under the Federal Civil Rights Statute, 42 U.S.C. § 1983. CPG also exercised its right to judicial review under Minnesota Statutes, Section 462.361, Subdivision 1 (2010).
The district court granted the city summary judgment on CPG’s equal protection claim, but allowed CPG’s due process claim and judicial review of the land use decision under state law to proceed to trial. CPG asserted that Goodman’s conduct, relative to the proposed development, precluded CPG from having a fair and neutral hearing on its application. Therefore, it rendered the council’s decision arbitrary and capricious under both federal and state law.
At trial, evidence was presented that neighborhood opposition existed to the company’s proposed project and that Goodman was involved not only in an effort to assist and organize neighborhood opposition but also to sway the opinions of her fellow council members. Evidence showed that the opinion of the council member in whose ward a project is proposed is given substantial weight by other council members. CPG argued that Goodman acted as more of an advocate rather than as a quasi-judicial decision maker.
After reviewing the evidence, the district court found that the city violated CPG’s procedural due process rights. It also found that the city’s decision was arbitrary and capricious under state law. The court awarded CPG $165,369 in compensatory damages for out-of-pocket expenses and $357,523 in attorney fees and costs.
Both parties appealed. CPG’s appeal was based in part on the amount of damages awarded. The company sought approximately $11 million in damages.
Court of Appeals Decides
The Court of Appeals reversed the damage award for the alleged due process clause violation. The court found that because CPG did not have a protected property interest in either the conditional use permit or variance application process, it was not entitled to protections of the due process clause. However, the court upheld the district court’s decision that the council’s decision was arbitrary and capricious under state law.
In remanding the case, the court noted that a decision is arbitrary and capricious “if the decision maker relied on factors it is not permitted or intended to consider.”2 The council must also act in good faith.3
The court noted that although there was objective evidence in the record to support the council’s decision to deny the applications, Goodman’s conduct, as presented in the trial court record, established that the council relied on factors it was not intended or permitted to consider when denying CPG’s application. Therefore, the court concluded that the council’s decision was arbitrary and capricious.
Objectivity Is Key
Although this case is an unpublished Court of Appeals case and, therefore, limited in its precedential value, elected board members must be mindful of potentially partisan/advocacy conduct when sitting in a quasi-judicial capacity. Although elected officials need to be responsive to constituent needs and opinions, actions or statements evidencing bias or a prejudging of a matter before a hearing could potentially result in a court reversing the decision of the board.
When acting as quasi-judicial decision makers, elected/appointed board members must ensure that they are listening to the evidence presented in an objective/neutral manner and on the record before the board. Failing to do so exposes the board to having its decision overturned on appeal, even when the decision otherwise may have been supported by the record.
MCIT recommends consulting with the county attorney or other legal counsel when questions arise.
Which Hat Is It?
The role of a county commissioner requires making legislative and quasi-judicial decisions. Legislative decisions establish policies for future application, while quasi-judicial, or administrative decisions, are the application of those policies to a specific situation.
Examples of legislative decisions of a county board that establish a policy include:
- adoption of plans
- adoption of ordinances (or amendments to ordinances)
- passing budgets
Examples of quasi-judicial decisions wherein a county board applies previously established policies include decisions on:
- special exceptions
- subdivision plats
- zoning code violations
- site plan review
- employee terminations
The distinction between legislative and quasi-judicial decision making in zoning matters is important. In quasi-judicial proceedings, the decision-making body must follow stricter procedural requirements. As the name implies, quasi-judicial proceedings must be similar to those followed by courts. If the requirements are not followed, the decision could be invalidated by a court if it is challenged.