10-612 Submittal of Record for Judicial Review
(1) Within  days after entry of an order to submit the record, or within such further time as the court allows or as the parties agree, the local government shall submit to the court a certified copy of the record of the land-use decision for judicial review, except that the petitioner shall prepare at the petitioner's expense and submit a verbatim transcript of any hearings held on the matter.
(2) If the parties voluntarily agree, or upon order of the court, the record shall be shortened or summarized to avoid reproduction and transcription of portions of the record that are duplicative or not relevant to the issues to be reviewed by the court.
(3) The petitioner shall pay the local government the cost of preparing the record before the local government submits the record to the court. Failure by the petitioner to timely pay the local government relieves the local jurisdiction of responsibility to submit the record and is grounds for dismissal of the petition.
(4) If the relief sought by the petitioner is granted in whole or in part, the court shall equitably assess the cost of preparing the record among the parties. In assessing costs, the court shall take into account the extent to which each party prevailed and the reasonableness of the parties' conduct in agreeing or not agreeing to shorten or summarize the record, as authorized by paragraph (2) of this Section.
• This Section authorizes the transmittal of the record of the land-use decision to the court. It is based on Wash. Rev. Code 36.70C.110. There is no direct sanction to compel agreement on shortening or summarizing the record, but there is an indirect sanction in the court's authority to make allocation of record preparation costs depend on the willingness of a party to make such an agreement.
Commentary: Review and Supplementation of the Record
This Section authorizes a reviewing court, when presented with the record of the administrative hearing below, to either remand the case to the decision-making body or to supplement the record in proceedings before the court. Remand is the preferred method of resolving shortcomings in the record, as the grounds for supplementing the record under the model Section are limited, but judicial supplementation of the record has a place in a proper system of judicial review.
There are positive and negative effects from authorizing courts to supplement the record. Generally speaking, the benefits are:
(1) Time. It is more efficient to resolve all issues recognized by the court while the parties are before the court, as opposed to the delay involved in a remand to the local governmental body.
(2) Fairness. The court is a neutral arbiter, while the local governmental body may have a vested interest in, or be subjected to political pressure to make, a particular decision.
(3) The "Ping-Pong" Effect. If an administrative body or officer is determined (for whatever reason) to make a particular decision, regardless of the court's judgment, it can, upon remand, make minor adjustments to its findings while coming to the same basic decision. This could create a circle of remands, "new" decisions, appeals, and further remands.
(4) Politically-impaired fact-finding. Though a local body sitting quasi-judicially has a duty to make findings of fact in a neutral manner, political considerations may cause the body to make whatever findings are needed to achieve a particular outcome. And since reviewing courts are generally required to defer to administrative fact finding, judicial review with remand as the only remedy would not necessarily solve this problem.
Conversely, the potential negative effects of permitting judicial supplementation of the record are:
(1) Cost. Judicial proceedings are generally more expensive than administrative hearings.
(2) Experience. The local government is more familiar than the judge with the intent and content of its regulations and the land-development and socio-economic environment it faces, and thus has a better foundation upon which to make an informed decision.
(3) "Right Decision, Wrong Reason." There may be multiple facts or arguments supporting the local government decision, but the written determination addressed only one or some because the local government did not need to reach the others to make its decision. A remand would allow the local body or officer to consider these unaddressed arguments, while a court willing to go beyond the record may reverse the decision on the grounds that the stated basis in the written determination is not legally or factually correct.
(4) Local government autonomy. When a local body effectively loses its fact-finding power in a particular case because the court has retained the case for supplementation of the record, it loses the ability to consider the facts and circumstances in light of local policy in all its written and unwritten intricacies. The court is aware of the written policy but not necessarily of the uncodified interpretations and nuances the policy has amassed in its adoption and enforcement.
Provisions of the Model Section
This Section makes it clear that judicial review of factual issues is based on the record made before the body or official that made the decision. Paragraph (1) provides limited opportunity to introduce evidence to supplement the record. It is based on Wash. Rev. Code 36.70C.120 and is typical of authority found in other statutes allowing the review of land-use decisions. See Utah Code Ann. 10-9-708(5)(a)(i). This narrow authority to allow supplementary evidence is intended to allow additional evidence at trial only when exclusion of the evidence would be patently unfair. Except in such limited circumstances, the remedy for an inadequate record should be a remand to the local government for further proceedings.
Paragraph (1) reflects the belief that the taking of evidence should occur at the local government level in the local hearing process, where it can form the basis for the local government's decision. Parties would not be allowed, under this view, to retry a case on the facts once it gets into court. Paragraph (2) applies when the record for review does not contain findings of fact. It authorizes the court to allow evidence of material facts that are not part of the submitted record. Paragraph (2) is based on Wash. Rev. Code 36.70C.120.
10-613 Review and Supplementation of Record
(1) When the [name of court] is reviewing a land-use decision by an officer or body that made findings of fact in a record to support its decision, the court shall base its review on the record and may remand the land-use decision for further proceedings, or may supplement the record with additional evidence only if that additional evidence relates to:
(a) grounds for standing, or for disqualification of a member of the body or the officer that made the land-use decision, when such grounds were unknown by the petitioner at the time the record was created;
(b) matters that were improperly excluded from the record after being offered by a party to record hearing;
(c) correction of ministerial errors or omissions in the preparation of the record; [or]
Optional Paragraph (d)
[(d) matters indispensable to the equitable disposition of the appeal.]
• Because judicial review occurs only after a hearing on the development permit application after which a decision is made based on findings in a record, supplementation of the record in judicial review should occur rarely. One instance, specified in subparagraph (a), occurs when information that would disqualify a decision maker was unknown by the petitioner at the time of the hearing. Another instance, specified in subparagraph (b), occurs when matters were matters were improperly excluded from the hearing. The Section gives the court the authority, in its discretion, to order supplementation of the record or to remand the case to the decision-making body so it can take additional evidence.
Optional paragraph (d) is based on Conn. Gen. Stat. 8-8(k), and similar statutes, that give the trial court some discretion on the decision to admit supplementary evidence or to remand. See also N.H. Rev. Stat. 677:15(III). This paragraph reflects the view that the court should have a limited amount of discretion to admit supplementary evidence because it, unlike the local government that makes the decision, is an impartial decision maker in the land-use controversy.
(2) When a court is reviewing a land-use decision by an officer or body that did not make findings of fact in a record to support its decision, the court may supplement the record by allowing evidence of material facts that were not made part of the local government's record.
(3) If the court allows the record to be supplemented, the court shall require the parties to disclose before the preliminary hearing or trial on the merits the specific evidence they intend to offer.
10-614 Discovery When Record Supplemented
The parties may not conduct pretrial discovery except with the prior permission of the court, which may be sought by motion at any time after service of the petition. The court shall not grant permission unless the party requesting it makes a prima facie showing of need. The court shall strictly limit discovery to what is necessary for equitable and timely review of the issues that parties seek to raise through the introduction of supplementary evidence as authorized by Section [10-613].
• This Section authorizes discovery when parties are allowed to supplement the record. It is based on Wash. Rev. Code 36.70C.120. A motion for discovery may be brought before the preliminary hearing. See Section 10-609(2). This Section is not necessary if discovery is covered by rules of court or another statute.
Commentary: Standards for Granting Relief
This Section provides the standards under which a court can award relief. The standards provided are similar to those contained in state administrative procedure acts, but the Section adds a requirement that the land-use decision must be consistent with the local comprehensive plan and must comply with the land development regulations. Paragraph 1(g) is intended to cover violations of both the state and federal constitution, and includes procedural and substantive due process, equal protection and takings claims. A court is not allowed to award compensation in the judicial review of a land-use decision under this Chapter. However, the petitioner can join claims for compensation, as well as claims under Section 1983 of the Federal Civil Rights Act, in a petition for judicial review. See Section 10-602(3). In these actions, a court can award compensation and other appropriate compensatory relief. Paragraph (2) implements Section 10-605(1), which authorizes a petitioner for judicial relief to reserve federal claims.
10-615 Standards for Granting Relief
(1) The court may grant relief only if the party seeking relief has carried the burden of establishing that one or a combination of the following standards has been met. The standards are:
(a) the officer or body that made the land-use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error did not do substantial harm;
• The term "unlawful procedure" is intended to refer to procedure that violates the local government's unified development permit review process, as required by this Chapter.
(b) the land-use decision is an erroneous interpretation of the law[, after allowing for such deference as is due the construction of a law by a local government with expertise];
• The bracketed language would require a court to defer to the agency's expertise in deciding questions of law. This language can be omitted if a state decides that a court should decide legal questions without being limited by this presumption.
(c) the land-use decision is not consistent with the local comprehensive plan as determined pursuant to Section [8-104], [if consistency is required by [name statute]], or does not comply with the land development regulations; or
• Subparagraph (c) is based on Ore. Rev. Stat. 197.835(8). It requires the land-use decision to be consistent with the local comprehensive plan and land development regulations and requires the court to make a legal judgment based on the textual provisions of the plan and regulations. The language contained in brackets should be inserted if the enabling legislation does not require all land-use decisions to be consistent with the plan. For example, it might not require site plans to meet a consistency requirement.
(d) the land-use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court, and any evidence submitted to the court, including such supplementary evidence as the court permitted under Section [10-613].
• The "substantial evidence" test is the standard test applied to the judicial review of findings of fact based on a record. This subparagraph modifies this test to include supplementary evidence introduced at trial. A court is not required to make findings of fact based on supplementary evidence submitted to it, but may rely on this evidence as a basis for granting relief to the plaintiff, if it believes that relief is justified.
(e) the land-use decision is a clearly erroneous application of the law to the facts;
(f) the land-use decision is outside the authority or jurisdiction of the officer or body making the decision; or
(g) the land-use decision violates the constitutional rights of the party seeking relief.
(2) If a petitioner has reserved a federal claim in a petition filed under Section [10-605], the court shall note in its decision that these claims are reserved.
10-616 Decision of the Court
(1) The court may dismiss the action for judicial review, in whole or in part, or it may do one or a combination of the following: affirm, modify, or reverse the land-use decision under review or remand it for modification or further proceedings.
(2) If the court remands a land-use decision to the officer or body that made the decision, it may require the officer or body to consider additional plans and materials to be submitted by the applicant for the development permit, and the adoption of alternative regulations or conditions, as the court's order on remand shall prescribe.
(3) If the court remands the land-use decision for modification or further proceedings, the court may make such an order as it finds necessary to preserve the interests of the parties and the public, pending further proceedings or action by the local government.
• Paragraph (1) is standard language governing the availability of judicial relief. It is based on Wash. Rev. Code 36.70C.140. See also Idaho Rev. Code 67-5279. Paragraph (2) is based on Pa. Stat. Ann. tit. 53, 11006-A, and authorizes the court to require the local government to consider alternative requirements and conditions on remand. Paragraph (3) is intended to give a court broad discretion in attaching conditions to a remand. For example, a court could condition a remand with an extension or stay of compliance or enforcement proceedings. This type of order is recommended by the American Bar Association. See the guidelines on judicial relief in House of Delegates, Amer. Bar Ass'n, Resolution No. 107B (Aug. 1997). The Resolution provides guidelines for decisions when stays should be granted, and recommends against granting stays in most cases. Although these guidelines are not an interpretation binding on the model law, they can be consulted for guidance on stay orders.
Commentary: Definitive Relief
Definitive relief is essential, in appropriate cases, to allow a petitioner to proceed with her development without going back to the local government for additional proceedings. Some courts, if they reverse a land-use decision, will order the issuance of a development permit to the petitioner rather than remand if issuance of the permit is justified on the record. A typical case is the denial of a zoning variance. This paragraph codifies this authority, but the decision on whether to issue a development permit is in the court's discretion.
Note that the court must find that definitive relief is "appropriate," and it is the intent that this determination should be based on the court's decision reversing the denial or conditional approval. Presumably, a court would not order definitive relief by compelling the issuance of a development permit unless it found, in its decision, that the applicant had complied with all the requirements on which the issuance of a development permit would be based, whether or not they were considered in the court hearing. It is intended that the court would call for a hearing on definitive relief, in which it would consider arguments on whether definitive relief is appropriate under the circumstances. For example, there may be issues not considered in the court hearing which would require consideration after a remand. See Section 10-616. This Section is based on 53 Pa. Stat. 11006-A(c)(e).
10-617 Definitive Relief
If the court reverses a land-use decision that is based on a record or record appeal, and if the land-use decision denied the petitioner a development permit, or approved a development permit with conditions, the court may grant the petitioner such definitive relief as it considers appropriate.
10-618 Compensation and Damages Disclaimer
A grant of definitive or other relief under this Chapter does not, by itself, establish liability for compensation or monetary damages, nor does a denial of definitive or other relief under the Chapter establish a presumption against liability for compensation or other monetary damages.
Appendix — Literature on Administrative and Judicial Review of Land-Use Decisions
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Asarch, C.G., "Settling Land Use Disputes Under Rule 106 (a) (4)," Colorado Lawyer 26 (November, 1997): 97.
Ayer, J., "The Primitive Law of Standing in Land Use Disputes: Some Notes From a Dark Continent," Iowa Law Review 55 (1969-70): 344.
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Bornong, J.H., and Peyton, B.R., "Rural Land Use Regulation in Iowa: An Empirical Analysis of County Board of Adjustment Practices [Part 1 of 2]," Iowa Law Review 68 (July, 1983): 1083.
_____ and _____, "Rural Land Use Regulation in Iowa: An Empirical Analysis of County Board of Adjustment Practices [Part 2 of 2]," Iowa Law Review 68 (July, 1983): 1083.
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Brown, R.P., "Standing to Appeal Local Zoning Board Decisions," Michigan Bar Journal 61 (October, 1982): 826.
Brown, N.K., "Further Analysis of Judicial Review of Land Use Controls in Oregon," Willamette Law Journal 12 (Winter, 1975): 45.
Callies, D.L., "The Use of Consent Decrees in Settling Land Use and Environmental Disputes," Stetson Law Review 21 (Summer, 1992): 871.
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Cunningham, R.A., "Zoning Law in Michigan and New Jersey: A Comparative Study," Michigan Law Review 63 (May, 1965): 1171.
_____, "Rezoning by Amendment as a Quasi-Judicial Act: The New Look of Michigan Zoning," Michigan Law Review 13 (August, 1975): 1341.
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Dukeminier, J.D., and Stapleton, C.L., "The Zoning Board of Adjustment: A Case Study in Misrule," Kentucky Law Journal 50 (1962): 273.
Elias, E.A., "Rezoning: The End of Judicial Review?" Baylor Law Review 14 (Spring, 1962): 179.
Finfrock, W.P., "Trial De Novo — Panacea?" Baylor Law Review 14 (Spring, 1962): 135.
Ford, J., "Guidelines for Judicial Review in Zoning Variance Cases," Massachusetts Law Quarterly 58 (March, 1973): 15.
Forthman, C.A., "Resolving Administrative Disputes," Florida Bar Journal 71 (March, 1997): 77.
Freilich, R., "Missouri Law of Land Use Controls: With National Perspectives," UMKC Law Review 42 (Fall, 1973): 1.
Fuller, R.A., "Zoning and Planning Appeals to the Courts," Connecticut Bar Journal 52 (October, 1978): 416.
Gitelman, M., "Judicial Review of Zoning in Arkansas," Arkansas Law Review and Bar Association Journal 23 (Spring, 1969): 22.
Gomez, J.E., "Vermont Law Governing Standing in Zoning Appeals: An Argument for Expansion," Vermont Law Review 12 (Spring, 1987): 217.
Hagman, D.G., "Judicial Review of Local Land-Use Decisions in California," Land Use Law and Zoning Digest 26, 5 (1974): 8.
Healy, M.R., "Massachusetts Zoning Practice Under the Amended Zoning Enabling Act." Massachusetts Law Review 64 (October, 1979): 157.
_____, "Zoning Variance Trials in Massachusetts, Part I: Groundrules for Trials, Defenses, and Landowner Review of Decisions," Massachusetts Law Review 68 (September, 1983): 108.
_____, "Zoning Variance Trials in Massachusetts, Part II: Challenges to Variance Decisions," Massachusetts Law Review 68 (December, 1983): 154.
Hendel, W.A., "The 'Aggrieved Person' Requirement in Zoning," William and Mary Law Review 8 (Winter, 1967): 294.
Holman, M., "Zoning Amendments: The Product of Judicial or Quasi-Judicial Action," Ohio State Law Journal 33 (1972): 130.
Huynh, H.H., "Administrative Forces in Oregon's Land use Planning and Washington's Growth Management," Journal of Environmental Law and Litigation 12 (1997): 115.
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Karaskiewicz, T.R., "Municipal Standing in Illinois: The Courts Move Toward a Broader Perspective of Review for Local Land Use Decisions," John Marshall Law Review 17 (Winter, 1984): 145.
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Raver, P.C., "Indiana Variance Proceedings and the Doctrine of Res Judicata," Indiana Law Journal 46 (Winter, 1971): 286.
Reps, J.W., "Discretionary Powers of the Board of Zoning Appeals," Law and Contemporary Problems 20 (1955): 280.
Reynolds, L., "Local Subdivision Regulation: Formulaic Constraints in an Age of Discretion," Georgia Law Review 24 (Spring, 1990): 525.
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Rosenzweig, R.L., "Curative Amendment Procedure in Pennsylvania: The Landowner's Challenge to the Substantive Validity of Zoning Restrictions," Dickinson Law Review 80 (Fall, 1975): 43.
Ruttger, M., "Judicial Remedial Action in Zoning Cases: An Emerging Standard for Review," Urban Law Annual (1973): 191.
Ryckman, W.E., "Judicial and Administrative Review in Massachusetts Zoning and Subdivision Control Cases," Massachusetts Law Quarterly 52 (December, 1967): 297; 53 (June, 1968): 129.
Sattler, T., "Variances and Parcel Rezoning: Relief From Restrictive Zoning in Nebraska," Nebraska Law Review 60 (Winter, 1981): 81.
Schwartz, C., "Exceptions to the Exhaustion of Administrative Remedies Under the Mexican Writ of Amparo: Some Possible Applications to Judicial Review in the United States," California Western Law Review 7 (1991): 331.
Scott, C.F., "Judicial Review of Zoning Decisions in Illinois," Illinois Bar Journal 59 (November, 1970): 228.
Shapiro, R.M., "The Zoning Variance Power — Constructive in Theory, Destructive in Practice," Maryland Law Review 29 (1969): 3.
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_____, "Conditional Zoning in Illinois: Beast or Beauty?" Northern Illinois University Law Review 15 (Summer, 1995): 585.
Siemon, C.L., and Kendig, J.P., "Judicial Review of Local Government Decisions: Midnight in the Garden of Good and Evil," Nova Law Review 20 (Winter, 1996): 707.
Smith, A.D., "Judicial Review of Rezoning Discretion: Some Suggestions for Idaho," Idaho Law Review 14 (Summer, 1978): 591.
_____, "Standing to Appeal Local Land Use Decisions in Oregon," Oregon Law Review 65 (1986): 185.
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_____, "Araby Revisited: The Evolving Concept of Procedural Due Process Before Land Use Regulatory Bodies," Santa Clara Lawyer 15 (Fall, 1974): 50.
Taylor, J.M., "Untangling the Law of Site-Specific Rezoning in Florida: A Critical Evaluation of the Functional Approach," Florida Law Review 45 (December, 1993): 873.
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Westbrook, M., "Connecticut's New Affordable Housing Appeals Procedure: Assaulting the Presumptive Validity of Land Use Decisions," Connecticut Bar Journal 66 (June, 1992): 169.
Wexler, R.L., "The Extension of Judicial Policy: Zoning Practice and Exhaustion of Remedies," John Marshall Journal of Practice and Procedure 3 (Winter, 1969): 44.
Winstein, S., and Galanis, D., "Challenging the Constitutionality of a Zoning Ordinance in a Declaratory Judgment Action: An Effective Method of Relief for the Landowner Burdened by Land Use Restrictions," Southern Illinois University Law Journal (1981): 393.
Wolffe, L.L., "Procedure Under the Pennsylvania Municipalities Planning Code," Duquesne Law Review 14 (Fall, 1975): 1.
Notes and Comments
"Administration of Zoning in Maine," Maine Law Review 20 (1968): 207.
"Judicial Review of Special Use Permits in Kansas," Washburn Law Journal 11 (1972): 440.
"Judicial Review of Zoning Ordinances in Georgia: The Court's Role in Land Use Planning," Mercer Law Review 41 (Summer, 1990): 1469.
"Land Use Law in Virginia," University of Richmond Law Review 9 (Spring, 1975): 513.
"Municipal Zoning in Alabama," Alabama Law Review 28 (Spring, 1977): 329.
"The State of Zoning Administration in Illinois: Procedural Requirements of Judicial Intervention," Northwestern University Law Review 62 (1967): 462.
"Within a Delicate Jurisdiction: The Rights of Parties Before Zoning Authorities," Mississippi Law Journal 41 (Spring, 1970): 271.