Procedural Due Process

Adoption of plans, ordinances and other legislative proposals related to land development standards are generally subject to intense public scrutiny because they affect private property rights, personal wealth and other closely held values. Our democratic system of government encourages public discussion of pending legislation. It is perfectly acceptable for individual community members and special interest groups to lobby elected officials for support or opposition of local legislative proposals. However, once proposed policies are adopted and become law, government bodies such as the plan commission must apply them in full view of the public following legal rules of fair play known as due process.

Quasi-Judicial Decision-Makers Must Follow the Rules of Procedural Due Process

Not all government actions require compliance with procedural due process principles. A rule or law that applies generally does not trigger due process guarantees. Instead, procedural due process requirements are demanded of government only in cases where the government makes an individualized determination affecting specific individuals or a limited identifiable class of people. In other words, the rules of procedural due process apply to quasi-judicial decision-makers.

Due process is a basic concept of fairness in legal proceedings that has its roots in the decision making processes used by the Greeks and Romans. It is also reiterated in the constitutions of the United States and Wisconsin. These constitutional provisions guarantee two distinct forms of due process: substantive and procedural. Substantive due process is concerned with the reasonableness of government action and focuses on assessing the rationality of a government decision. Procedural due process, the focus of this section, is concerned with the means employed to make a government decision.

When the plan commission makes a decision that affects specific individuals (i.e. conditional use, plat review, etc.), it must follow the rules of procedural due process. These rules include:

Providing adequate notice of pending decisions to affected persons.
Ensuring that each decision maker is impartial and unbiased.
Avoiding and disclosing ex parte contacts.
Providing an opportunity to present at hearings.
Basing decisions on clear, pre-existing standards and factual evidence in a record that is available for review.

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