Public Participation and Fairness

• Author: Howard Epstein
• Pages: 397-431

397

CHA PTER 8

PUBLIC PARTICIPATION

AND FAIRNESS

A. PRELIMINARY

The materials in this chapter deal with issues associated w ith pub-

lic participation in the planning process and form an introduction to

Chapter 9, which covers appeals and judicial review. Many of the court

cases on land-use i ssues arise from dissatisfaction with t he nature of

public participation that ha s been afforded. The legal issue is fra med as

one of fairness. Disputes over what are the specif‌ics of public partici-

pation rights are the stuf f of much of administrative law issues in the

land-use context.

Public participation is such an important aspect of land-use plan-

ning law that it is focused on separately. Participation is a fundamen-

tal value of the process. Also, most citizens will ex perience land-use

planning and land-use planning law through thei r opportunity to be

involved in generalized policy decisions or in specif‌ic decisions about

particular parcels of land.

Some courts have character ized citizen involvement in governance as

a Charter-protected right, but this h as not prevented disputes over land-

use issues evolving into lawsuits framed in defam ation. In some instan-

ces, this can be seen as anti-democratic and be ch aracterized as a SL APP

(strategic lawsuit against public participation), discussed in Section L,

below in this chapter. Should there be any specia l controls over SLAPPs?

So far as judicial rev iew is concerned, questions th at arise frequent-

ly have to do with entitlement to notice of a decision being made, the

LAND-USE PLANNING398

adequacy of the notice, and the fair ness of the hearing proces s. The

courts are asked to assess these matters on the standard of what is set

out in statute, on the common law standards of due process, and in

some circumstances accordi ng to Charter norms. What this means in

any particular instance is not obvious, and a familiarity with t he set

of decided cases is neces sary in order to judge how to structure public

partic ipation appropriately.

Whether the processes should be different is an important policy

question. What efforts should be made to notif y tenants, or the illiter-

ate, or those who do not speak the local off‌icial l anguage, or the visual-

ly impaired? Are time limits for speakers at a hearing too restrictive?

So far as appeals are concerned, what limits should apply on who

can take an appea l (the issue of “standing”)? What decisions should be

subject to appeal? On what basis should an appellate body rev iew the

origin al decision?

Entirely apart from the actual mechanisms th at afford public par-

ticipation, there is the basic i ssue of political power. Analysis of partici-

pation should always be undertaken in a context that sees a full power

dynam ic.1

The political science understanding of public par ticipation is quite

broad. It extends to voting, to lobbying, to maki ng f‌inancial donations, to

organized advocacy.2 Burt says that, “[i]ts signif‌ica nce is due to its central-

ity in democratic theory and in understandings of citizenship, or mem-

bership of a community . . . and equality. Consequently, the notion of

participation allows us to d ifferentiate among types of political regi mes.”3

This is a signif‌ic ant claim. It suggests that we can measure how democrat-

ic a nation is by examin ing how freely citizens can participate in the ma-

jor communal decisions that are to be m ade. It echoes the classic analysis

of De Tocqueville in his 1835 work Democracy in America. Makuch et

al cite De Tocqueville’s observations on town meetings — the prototype

of small-community direct decision-making — as representing not just

something admirable in itself but as the necessar y educational founda-

tion for a free nation: “Town meetings are to liberty what prim ary schools

are to science. They bring it within t he people’s reach, they teach men

1 For general backgrou nd, see James A Draper, ed, Citizen Participat ion: Canada, A

Book of Readings (Toronto: New Press, 1971); Mary Louise McA llister, Governing

Ourselves? The Politics of Canadian Communit ies (Vancouver: UBC Press, 2004)

chs 3 and 12.

2 See, for example, Sa ndra Burt, “The Concept of Political Part icipation” in Joan-

na Everitt & Brend a O’Neill, eds, Citizen Politics: Research and Theor y in Canadi-

an Political Behaviour (Don Mil ls, ON: Oxford University Press, 20 02) 2 32.

3 Ibid at 232 .

Public Partic ipation and Fairness 399

how to use it and how to enjoy it. A nation may establish the government

but without municipal institutions it can not be said to have the spirit of

liberty.” They comment: “Thus it can be argued that the purpose of local

government is to foster a democratic spirit and to provide the means by

which democracy can be lear ned. Politicians and citizen s alike can gain

experience at the local government level in preparation for involvement

in the ‘serious’ matters of the federal and provincial governments.”4

B. PLANNING LITERATUR E ON PUBLIC

PARTICIPATION

Politicians, planners, and the public are t he main participant s in land-

use planning, according to most analysts. This takes a broad view of

the public (and leaves aside the legal system) in that it extends to de-

velopers and their staff or consultants (architects, lawyers, planners).

In general, there are expert professional participants and a lso the gen-

eral, varied public. The professionals are often tempted to v iew the pub-

lic and its participation as an inconvenience.

In an American Plan ning Association publication, The Planner’s Use

of Infor mation, the chapter on “Public Participation” starts:

Why Involve the Public? On the one hand, the a nswer to this ques -

tion for planners is an e asy one: “They make us do it”. “They” are

[agencies and local government s]. On the other hand, pl anners with

little or negative exper ience may be reluctant to undertake anyt hing

more than is legal ly required, under the mi staken notion that public

involvement is an impedime nt, not a help, to the planning proces s.

To the contrary, well-designed and wel l-implemented citizen par tici-

pation can provide ta ngible benef‌its to the enti re planning proces s

by: providing valu able insights into citi zens’ values and preferences;

developing and nurtur ing an environment of goodw ill and trust;

helping to avoid or mitigate protracted or cost ly delays and conf‌licts;

providing infor mation about public perceptions and concern s that

planners and polic y makers may have overlooked; prov iding citizen

support for a f‌inal project or strateg y; engendering a mean ingful,

two-way dialog ue between the public and the plan ners, leading to

understandable and con sensus-d riven decision maki ng; developing

4 Stan Makuch et a l, Canadian Municipal and Planning Law, 2d ed (Toronto: Thom-

son Carswell , 2004) at 2.