Procedural due process requires that plan commission members acting in a quasi-judicial manner be impartial, that is, free of bias and conflicts of interest. Here are two examples of how the courts determined that a land use decision maker was not impartial:

• A zoning board member made negative comments about the applicant and her request, referring to it as a “loophole in need of closing.” The court determined the applicant was deprived of a fair hearing and required a rehearing without the participation of the member.
• A county zoning committee member, who was also a town board chair, co-signed a letter as town board chair expressing his positive opinion of a gravel company. The gravel company later applied to the county for a conditional use permit and included the town chair’s letter as part of the application. When the town board chair/county zoning committee member voted to grant the conditional use permit, the court determined he was an advocate who had demonstrated an impermissibly high risk of bias.

Local land use decisions are particularly vulnerable to concerns about impartiality because decision-makers are local residents with numerous social and economic ties to their community. It should be noted, however, that personal opinions about specific land use regulations or planning in general do not necessarily disqualify a plan commission member from participating in a matter.

Recusal

For each request before the plan commission, individual commission members must decide for themselves whether their relationships or interests could bias their judgment or present an appearance of bias. We recommend that plan commission members use the “sniff test” when determining whether they are biased or impartial. If it would smell fishy for you to vote on the matter at hand, recuse yourself. Another way to determine if you are impartial and appear impartial is to think about whether you would be comfortable if the headline in your local newspaper described your background, your personal and professional relationships, and your participation or vote on the matter at hand. If you are unsure, you should discuss the matter with legal counsel.

If, as a plan commission member, you do not feel you can be and appear impartial in a given decision, the best approach is to recuse yourself. To recuse yourself, do not vote and do not have any discussion or involvement in the matter in question. We recommend that you physically remove yourself from the table where the plan commission is seated while the matter is discussed to make it clear you are not serving as a member of the commission. The meeting minutes should reflect that you have recused yourself.  If you have recused yourself on the matter, you may offer testimony as a member of the public.

Apply Your Learning

What rules apply when faced with the rezoning of an individual property?

May a person vote on an issue twice when serving on both the plan commission and governing body?