Part II: Bylaws & Public Hearings

Part II: Planning Commission Bylaws & Public Hearing Procedures
March 10, 2008
1. Planning Commission Rules of Procedures or Bylaws:
The Planning Commission is required to adopt “rules for transacting business” under Section 3.03 (c) (1) of Article 66-B of the Maryland Annotated Code. These “rules for transacting business” are commonly known as the Planning Commission’s Rules of Procedure or Bylaws (PDF). For simplicity, they will be called bylaws. The Cumberland Planning Commission’s Bylaws were first adopted on August 29, 1972. Major revisions were adopted by the Planning Commission on July 14, 2008-a copy of which may be accessed from the Planning Commission’s web page. Since the bylaws govern the basic functions of the Board, each member of the Planning Commission should have a copy and be familiar with it.

In most local governments, the bylaws address more than just the fundamentals of how the Planning Commission conducts its meetings. They also can explain:
  • A. The officers of the board, their specific duties, how they are selected, and any specific limits on their terms
  • B. How many members constitute a quorum for the conduct of official business
  • C. Which members can vote on an issue before the Commission and under what specific circumstances
  • D. How the official minutes of the commission are kept and how communications with the media and public will be handled before the official minutes are adopted
  • E. How potential conflicts of interest may be addressed by the commission
  • F. How special / emergency meetings or work sessions can be scheduled and what public notification is required
  • G. How vacancies on the commission can be filled
  • H. How the commission will secure the staff support or create the special committees it may need, enter into contracts with consultants for special assistance, and manage its finances
  • I. How the Bylaws can be amended
Evolving Technology
As new communication technologies evolve, the Bylaws should be updated to provide for new means of participation in a meeting without attendance (like teleconferencing or video-conferencing). The Cumberland Planning Commission incorporated new provisions for this technology into its Bylaws in 2008. Limitations on the use of this technology for meeting participation are advised to insure that it remains an emergency option and not the norm. The Planning Commission must instill confidence in the public, and that can be very difficult to assure when a Planning Commission member is not present and cannot make eye-to-eye contact with the citizens at the meeting or “sense” the attitudes and feelings of the public. Despite our advanced technology, people still depend upon and demand face-to-face contact with the elected officials and representatives. That is 1 aspect of “public accountability” that we may never completely overcome with technology.

Maryland Annotated Code
The Maryland Annotated Code does not specifically dictate what must be addressed in the Bylaws, but it does directly govern a number of issues that are often included in the Bylaws for convenience of the Commission members. This creates a problem in deciding whether or not to repeat certain fundamental requirements of State law in the Bylaws or merely reference the appropriate governing Section in Article 66-B. It is often easier for Planning Commission members to refer to the Bylaws for guidance when needed than to flip back and forth between the Bylaws and a copy of Article 66-B to locate the appropriate rules. However, if provisions of the law are repeated in the Bylaws, the Planning Commission must make sure that the Bylaws are updated whenever the specific governing rules in Article 66-B are changed-which can be far too easy to forget or overlook.

Referencing State Laws
Perhaps the best way to resolve this conflict is to carefully choose which provisions of state law will be repeated in the Bylaws and include a reference to the specific Section of Article 66-B where they can be found. A clarifying statement can be included in the bylaws that states, “Whenever a conflict or discrepancy exists between the wording in these bylaws and the applicable governing Section of the Maryland Annotated Code, as may be amended, is found to exist, then the effective provisions of the Maryland Annotated Code shall govern and supersede the specific wording of these bylaws, until such time as the conflict or discrepancy is eliminated. Where such conflicts are discovered to exist, the Planning Commission shall proceed to update and amend the Bylaws to eliminate said conflict or discrepancy at its earliest convenience.” This statement, which can be placed at the beginning or end of the bylaws, should eliminate any confusion that may arise from a conflict of wording and protect the integrity of the unaffected provisions of the Bylaws.

Procedural Issues
A similar issue often arises when addressing procedural issues in the bylaws that are covered by Robert’s Rules of Order, which is a valuable standard reference guide for official meeting procedures. While Robert’s Rules of Order is very comprehensive, it can be cumbersome to use as a quick reference guide, because it covers so many rules and details of formal meeting processes that aren’t frequently needed. Nevertheless, some Bylaws refer to Robert’s Rules of Order for meeting procedures that are not specifically addressed in the bylaws. The challenge then becomes remembering to have a copy handy when an issue requiring clarification arises and having at least 1 person on the Commission who is knowledgeable with the book so that a mistake in procedure does not occur inadvertently.

2. Public Hearings:
Of the various activities and actions conducted by the Planning Commission during a normal meeting, the public hearing is the most critical in terms of interaction with citizens and instilling public confidence in the Planning Commission’s objectivity in the decision-making process. Legally speaking, it is also the most critical aspect of the decision-making process in terms of satisfying the public’s constitutional right to “due process.” A procedural error in public notification or the conduct of a public hearing can make the Planning Commission’s subsequent action on an issue vulnerable to intense legal scrutiny. The Planning Commission should take great care to insure that its public hearing procedures are adequately addressed in the Bylaws and that all hearings are conducted in a fair, appropriately formal and respectful, consistent, and open manner.

Public hearings should always be conducted at a time during the meeting when it is most convenient for the public to attend without having to wait for a long period of time to speak. Adequate and specific advance public notification must be given in a reliable manner, as specified in state law, the governing codes or regulations, and / or the Planning Commission’s Bylaws. It is always good to have a sign-in sheet and to call citizens to speak from the sign-in sheet, as long as citizens who may not have had an opportunity to sign in prior to the beginning of the hearing are afforded an opportunity to speak before the hearing is closed. If such speakers do request an opportunity to testify, their names should be added to the sign-in sheet to insure that a complete record of the hearing participants is maintained.

The structure of the hearing process is important in establishing a fair and open public forum. The Planning Commission Chair should formally “open” the hearing with a brief explanation of the issue, the process, and the basic rules of participation. The basic hearing process and rules of conduct and participation can be outlined in the Planning Commission’s Bylaws. A good normal process to follow is the formal opening and introduction by the Planning Commission Chair, followed by a brief overview report by staff, a similarly brief presentation by the petitioner (if applicable), and testimony by concerned citizens. Some communities structure citizen testimonies into separate groups for those wishing to speak in favor of the issue and those wishing to speak in opposition. However, this practice can inflame or intensify public controversy during the hearing (when strong feelings are involved) and may intimidate some citizens in speaking freely on 1 side of the issue or the other (depending upon the passions displayed by those speaking in the first group).

On occasion, a question may arise regarding the need to “swear in” witnesses at a hearing. This issue can emerge when a public hearing may involve complex testimonies by expert witnesses (either for an applicant or a group of citizens) or when an applicant or a group of citizens is represented by an attorney. Since the Planning Commission does not act in a judicial or quasi-judicial capacity, the “swearing in” of witnesses is not necessary and may actually make some citizens feel intimidated to speak. However, the Planning Commission Chair can swear in witnesses at a public hearing, if it is felt that it would make citizens or the other members of the Commission feel more comfortable receiving testimony, but it should not be used as a standard course of action.

Rules of Conduct
Another important, but often overlooked, aspect of the public hearing process is the rules of conduct or participation. These rules should be stated at the start of the hearing by the Planning Commission Chair. The rules should begin with a statement regarding public decorum. The public should be instructed not to applaud, cheer, or make rude, disrespectful, or vulgar remarks or actions during the hearing. When such actions occur, they can intimidate citizens on the opposite side of an issue or make the hearing forum argumentative. If the tone of the hearing is not managed carefully, especially in controversial situations, the process can degrade into hostility and uncontrolled reactions. One way to know if the tone of the hearing is getting out of control is if the members of the Planning Commission are beginning to feel more affected by the emotions of the public than by the substance of the testimonies or the primary purpose of the testimony is to stir or express emotion rather than present a point of fact. When these situations begin to occur, a reminder of the need to follow the rules of conduct may be needed.

Another way to manage the “tone” of public testimonies is for the Chair to instruct the public that their testimonies should address the specific facts of the case and provide objective information that the Planning Commission can used to make a fair decision. The staff report should outline the pertinent facts for the public that pertain to the applicable regulations.

Time Limits
Finally, the issue of time limits for public testimonies at a public hearing can be an important issue. When a large crowd wishes to speak at a public hearing, it is clearly beneficial to limit the length of time each speaker is given to testify, both in terms of giving everyone an equal opportunity to speak and managing the length of the hearing. Most communities apply a time limit of 3 or 5 minutes. However, it often seems unreasonable to limit the length of testimonies when only a small number of citizens wish to speak. One way to resolve this dilemma is to include a provision on time limits for public testimonies in the Planning Commission Bylaws that can be used when the number of people testifying reaches a certain threshold number (perhaps between 10 and 20). Such a flexible limit could be instituted by the Planning Commission Chair at the outset of the hearing, based on the number of citizens who have signed in to testify. As long as the criterion for applying the time limit is specified in the bylaws, it can (and should) be applied consistently and fairly. It is important for any speaking time limit to be part of the ground rules for the public hearing and applied fairly to all those who testify. Participants who have too many comments to be presented within the allotted time period can be advised to summarize their comments and submit additional details in written form during the “extended open record.” An extended open record may not be necessary when time limits are not imposed.

Of equal importance to the hearing process is the conduct of the Planning Commission members during a public hearing. A public hearing should be viewed as an opportunity for concerned citizens to address the Planning Commission. Planning Commission members should not debate the issues with citizens during the hearing. The Planning Commission will have ample opportunities to discuss the merits of specific testimonies or issues after the public hearing (including any applicable extended open record) has been closed. Debating an issue or testimony during an open public hearing could be viewed by the public as a bias in the decision-making process. However, if a Planning Commission member needs clarification of an issue or concern raised by a citizen during a public hearing, it would be appropriate to request that clarification of the speaker. Such interaction may be important to ensure that a citizen’s testimony is not misinterpreted.

Closing the Hearing
Once the public testimonies have concluded, the Planning Commission Chair should formally “close” the hearing, which notifies the public that their legal opportunity to testify before the Planning Commission is concluded. However, if the Planning Commission wishes to allow citizens who could not attend the hearing an opportunity to prepare and submit formal written comments on the issue, a specific “extended open record” period can be established by an official vote of the Planning Commission prior to the official closing of the public hearing by the Chair. Such extended open record should have a precise closing date and time for the receipt of written comments to ensure that the citizens know when their comments must be received to be considered as part of the official record. They also must be told how and to whom they should submit their comments. The staff must make sure that all written comments received are available for public inspection during the extended open record period, and extreme care should be taken to make sure that comments received after the closing deadline are not included in the official hearing record. Otherwise, the integrity of the extended public record could be challenged.

Revised: August 21, 2008