Public Participation and Fairness

• Author: Howard Epstein
• Pages: 397-431

397

CHAPTER 8

PUBLIC PARTICIPATION

AND FAIRNESS

A. PRELIMINARY

The materials in this chapter deal with issues associated with 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 issues arise from dissatisfaction with the 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 stuff 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 experience land-use

planning and land-use planning law through their 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 has not prevented disputes over land-

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

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

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

below in this chapter. Should there be any special 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 fairness of the hearing process. 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 according to Charter norms. What this means in

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

of decided cases is necessary in order to judge how to structure public

participation appropriately.

Whether the processes should be different is an important policy

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

ate, or those who do not speak the local off‌icial language, 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 appeal (the issue of “standing”)? What decisions should be

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

origin al decision?

Entirely apart from the actual mechanisms that afford public par-

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

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

dynamic.1

The political science understanding of public participation 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 examining 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 necessary educational founda-

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

are to science. They bring it within the 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 Fairness399

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

but without municipal institutions it cannot 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 learned. Politicians and citizens 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 LITERATURE ON PUBLIC

PARTICIPATION

Politicians, planners, and the public are the main participants 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 also 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 Information, the chapter on “Public Participation” starts:

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

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

[agencies and local governments]. On the other hand, planners with

little or negative exper ience may be reluctant to undertake anything

more than is legally required, under the mistaken notion that public

involvement is an impediment, not a help, to the planning process.

To the contrary, well-designed and well-implemented citizen partici-

pation can provide tangible benef‌its to the entire planning process

by: providing valuable insights into citizens’ values and preferences;

developing and nurturing an environment of goodwill and trust;

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

providing information about public perceptions and concerns that

planners and policy makers may have overlooked; providing citizen

support for a f‌inal project or strategy; engendering a meaningful,

two-way dialogue between the public and the planners, leading to

understandable and consensus-driven decision making; developing

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

son Carswell , 2004) at 2.