public participation and environmental protection in the … · 2017-10-17 · simak (do not...

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[247]

FILIP ŠIMÁK*

Public Participation and Environmental

Protection in the Building Permit and Land Use

Process−Comparison of Oregon and Czech Law

Introduction ...................................................................................... 248 I. Why Public Participation Matters ......................................... 249 II. Building Permit and Process ................................................. 251

A. Oregon−From Legislative to Quasi-judicial Actions ..... 252 B. The Czech Republic−The Building Permit Process in

Context ........................................................................... 254 III. Particular Phases of Process .................................................. 256

A. Application ..................................................................... 256 1. Oregon Law−Broad Public Access to Information .. 256 2. Czech Law−No Public Access to Inspect the

Application ............................................................... 257 B. Public Notice .................................................................. 257

1. Oregon Law−Announcement as far as It Goes ......... 258

* Filip Šimák is a lawyer originally from Prague, Czech Republic, with practical experience in both Czech and American advocacy. He interned at Leahy, Van Vactor, Cox & Melendy, LLP in Springfield, Oregon, and litigated on behalf of private and public clients with special focus on environmental and development cases. Throughout his Ph.D. candidacy at the Charles University in the Prague School of Law, his research interest has aimed to assess environmental protection in land use, along with environmental justice, public participation, and democracy at all levels of government. As a Fulbright Scholar, Filip earned a LL.M. degree in Environmental and Natural Resources Law at the University of Oregon School of Law, where he received the Community Pillar Award for Leadership, Service, and Invaluable Contribution. He also holds an M.A. law degree with Honors from Masaryk University School of Law, where he received a Merit Scholarship. Filip is a lifelong clarinet player and permanent member of several Czech and American music ensembles. He also enjoys outdoor sports, ballroom dancing, and cultural diversity. He would like to thank the Oregon Law faculty, especially Kristie Gibson, Micheal Reeder, and Joseph Leahy, for guidance in acquiring proficiency in American land use, as well as the staff editors and managing board of JELL for general assistance.


248 J. ENVTL. LAW AND LITIGATION [Vol. 32, 247

2. Czech Law−Limited Notification and Insufficient Time to Act ............................................................... 260

C. Public Hearing ................................................................ 262 1. Oregon−Mandatory Dialogue ................................... 262 2. Czech Law−Optional Public Hearing and Limited

Comments ................................................................. 263 D. Findings and Decision .................................................... 263

1. Oregon Law−Substantial Evidence and Notice of Decision .................................................................... 264

2. Czech Law−Meeting Criteria Standard and Short Time for Decision ..................................................... 265

E. Appeals ........................................................................... 266 1. Oregon Law−Decentralized Appeals First-

Centralized Later ...................................................... 267 2. Czech Law−Disperse Appellative System and

Shorter Time for Appeal ........................................... 267 Conclusion ........................................................................................ 268

INTRODUCTION

Residential, industrial, and commercial buildings, traffic corridors and other development projects, in general, cause substantial long lasting impact on the environment. When allowing new construction, society needs to comprehensively evaluate every possible future scenario for how it may influence the environment in order to mitigate detrimental effects. A significant part of the decision-making process in the area of land use law concerns scoping development proposals on the environment in general and surrounding sites in particular. To secure a democratic outcome, environmental nongovernmental organizations, as well as local inhabitants, must engage in discussions because local stakeholders form the most vulnerable center of the impacted community. Hence, public participation plays an important role in land use decision making.

In order to sustain effective public involvement, the law provides access to comprehensive information and allows individuals to object to the proposed development. Due process, decisions based on objective criteria, impartiality, and the ability to review the outcome, are safeguards for ensuring sound development with respect to all environmental protections.

This Article aims to first introduce the purpose of public engagement in light of Oregon land use reform in the second half of


2017] Public Participation and Environmental Protection 249 in the Building Permit and Land Use Process−Comparison of

Oregon and Czech Law

the twentieth century, briefly analyzing the extent of contributions that public involvement provides to ensure sound decision making. The second part describes specifications and a comparison of requirements for public participation in particular phases of the building permit process, or the “quasi-judicial land use process,” as it is known in the Czech Republic and in the State of Oregon, respectively.

I WHY PUBLIC PARTICIPATION MATTERS

Civic engagement in decision making, on any scale, is widely regarded as fundamental to a healthy society.1 When citizens are directly involved in development matters, the process and outcomes are likely to be more democratic, without undue bias or an interference of corrupted interests.2 Thus, participatory land management requires legitimacy for decision making, enabling watchdogging and thus deterring both actual and potential violations of due process.3 Among other benefits, broad public engagement in any development project secures the protection of the environment and other public interests.

No matter where a person lives, by living in that location, one naturally becomes familiar to local land use issues to some extent.4 In other words, people embedded in certain areas care more about their immediate surroundings—houses to live in, streets to walk on, parks and gardens to relax in, roads and parking lots to drive and park on, etc.5 State administrators, bureaucrats, and decision makers are often too far removed from the concerns of everyday people.6 However, local inhabitants usually live around prospective sites, thus making them well-equipped to share any project development concerns.7 Engaged participants bring new ideas, knowledge, and insights, even

1 ROBERT J. MASON, COLLABORATIVE LAND USE MANAGEMENT: THE QUIETER

REVOLUTION IN PLACE-BASED PLANNING 52−53 (2007). 2 Id. at 52. 3 See id. at 53. 4 Id. at 46. 5 Id. at 81. 6 See id. at 46. 7 Id. at 46.



though they often represent multiple interests.8 Nevertheless, the standpoints of individual local residents coalesce in what is commonly needed—a livable environment.9 Ultimately, through local civic engagement, communities may effectively reach informed and ecologically sound land use decisions.10

The rise of environmentalism in the United States in the 1960s inspired the Oregon government to initiate programs to support more public participation in land use decisions.11 Oregon, being considered a natural paradise, thereafter emerged as an environmental and land use management leader.12 The region is known for its citizens’ vital interests in protecting not only its significant natural landmarks, such as the lush Willamette Valley, the diverse Pacific Northwest coastline, and the white mountaintop of gigantic Mt. Hood, but also the livability of Oregon’s green cities and residential neighborhoods.13 With a historically resource-based economy and rapidly growing urban centers, the fear of “Californication” moved Oregon legislators to adopt a hard-regulatory approach to its development and civic oversight.14 In the 1970s, legislators implemented a statewide regulation in the form of nineteen goals, which local decision makers were required to carry out while also managing land and controlling development.15 Among others, “State-Wide Planning Goal 1: Citizen Involvement” underscored the obligation of local governments to provide for “continuity of citizen participation and of information that enables citizens to identify and comprehend the issues” in all phases of the planning process.16 Accordingly, public audiences gained the right to review each proposal and application for development actions prior to the formal consideration of such proposals or applications.17

Oregon Governor Tom McCall, who initiated and subsequently shielded land use reform, later cofounded the most comprehensive land-use-watchdog organization of that time, 1000 Friends of

8 Id. at 53. 9 Id. at 57. 10 Id. at 50. 11 Id. at 54−55. 12 Id. at 181. 13 Id. 14 Id. 15 Id. 16 OR. DEP’T OF LAND CONSERVATION AND DEV., OREGON’S STATEWIDE PLANNING

GOALS & GUIDELINES, OR. ADMIN. R. 660-015-0000(1) (2017). 17 Id. at 3.




Oregon.18 Since its establishment in 1975, the organization has aimed to sustain effective participation in the legislative, bureaucratic, and legal arenas pertaining to land use.19 The statewide public interest organization has built up coalitions with local non-governmental organizations and together advocated for environmental justice, housing affordability, and sound transportation planning.20 Along with educating interested communities, the watchdog promoted Oregon’s land use program throughout the United States.21 As a public interest body, 1000 Friends of Oregon advocated for balancing traditional opponents of land use planning, such as the industry lobby.22 Ultimately, the organization “initiated and participated in a great many appeals of local and state actions during its early years, and was on the winning side of the great majority of the time.”23 This Oregonian environmental watchdog’s example influenced other organizations nationally, most importantly in the states of Washington and Hawaii.24

II BUILDING PERMIT AND PROCESS

Generally, a building permit is the authoritative land use decision of a statutory body, which allows a developer to commence physical construction while setting forth binding conditions on the project. The foregoing process covers a formal procedure in which an unbiased decision maker evaluates a proposal against applicable criteria. By delivering building permits after this formal procedure, statutory bodies decide the shape and sizes of individual lots, the appearance of buildings, and quite literally the living conditions of human beings in local areas for many years to come.

18 MASON, supra note 1, at 183. 19 SY ADLER, OREGON PLANS: THE MAKING OF AN UNQUIET LAND USE REVOLUTION

151 (2012). 20 MASON, supra note 1, at 183. 21 ADLER, supra note 19, at 151. 22 Id. at 159. 23 Id. at 168. 24 Id.



A. Oregon−From Legislative to Quasi-judicial Actions

Up until the 1970s, the Oregon legal system recognized land use decisions only as legislative actions.25 Local governments exercised full discretion over decision making without necessarily following a formal procedure, inviting public participation, or even anticipating future effects by looking at a fact-based justification of ultimate outcomes.26 Because of this, environmentalists considered land use management as having destructive consequences on the environment.27

The Oregon Supreme Court changed these practices in the landmark case Fasano v. Washington County Board of Commissioners.28 In Fasano, the court held that a zoning change that affects the interests of a few identifiable persons or specific properties is a quasi-judicial act rather than a legislative act.29 In quasi-judicial land use actions, the court further noted, interested parties must be allowed to participate with an opportunity to present and rebut evidence.30 Further, the Oregon Supreme Court ruling demanded that land use and building decisions be delivered by an impartial hearing body after a formal procedure with adequate findings substantiated by a record.31 State legislatures therefore integrated Fasano requirements into Oregon law, thus safeguarding an elementary legal framework for public participation and environmental protection in developing lands and managing construction.32

In the current legal system, building permits in Oregon fall into the category of land use decisions, namely as the “final decision or determination made by a local government . . . that concerns the . . . application of . . . land use regulations.”33 Land use decisions range from very simple to complex, differing vastly on how much discretion

25 JAMES MATTIS, FINDINGS IN LAND USE DECISIONS 1 (1982). 26 Id. at 2. 27 ADLER, supra note 19, at 121. 28 Fasano v. Washington Cty. Bd. of Comm’rs, 264 Or. 574, 588 (1973). 29 MATTIS, FINDINGS IN LAND USE DECISIONS, supra note 25, at 1. 30 JAMES MATTIS ET AL., THE IMPARTIAL TRIBUNAL REQUIREMENT IN LAND USE

DECISION MAKING 2 (1982). 31 JAMES MATTIS ET AL., QUASI-JUDICIAL LAND USE HEARINGS PROCESS 2 (1983). 32 See Edward J. Sullivan, Reviewing The Reviewer: The Impact of the Land Use Board

of Appeals on the Oregon Land Use Program, 1979−1999, 36 WILLAMETTE L. REV. 441, 442 (2000).

33 OR. REV. STAT. ANN. § 197.015(10)(a)(A) (West 2016).




is vested in the decision maker.34 Ministerial decisions are decisions in which undisputed, measurable standards apply, and where a public official bears no discretionary power.35 Apart from the applicant and the administrator, no one else participates in these ministerial decisions.36 Conversely, where a certain degree of discretionary judgment over subjective criteria controls the decision, the public must be involved to react to problematic issues, which potentially may, and likely will, occur.37 In such cases, delivering a decision is the responsibility of a governing body or an entity to which exercising powers are delegated.38 The process of issuing a building permit is “quasi- judicial,” as the governmental body applies legal criteria in a strict procedural framework similar to that of a judge.39 Because of the complexity of the process and the broad range of potentially impacted stakeholders, Oregon law requires transparency, dissemination of information, public engagement, and scrutiny to maintain fairness in the final outcome.40 The aim of such assurances is to connect private and public interests, ultimately taking environmental protection concerns into account.41

Oregon adopted substantive and procedural rules in respect to the building permit process, which apply to all persons and entities in the state. Statutory provisions for building permits are covered in Chapter 215, County Planning; Zoning; Housing Codes, and Chapter 227, City Planning and Zoning, of the Oregon Revised Statutes.42 The minimal framework of the quasi-judicial land use process is referred to in Chapter 197.763, Comprehensive Land Use Planning: Local quasi-judicial land use hearings; conduct.43 While the statutes

34 BUREAU OF GOV’T RESEARCH SERV., UNIV. OF OR., PROCEDURES FOR MAKING

LAND DEVELOPMENT DECISIONS: A SUPPLEMENT TO THE MODEL LAND DEVELOPMENT

ORDINANCE 1 (Supp. 1983). 35 Id. at 1. 36 Id. 37 Id. 38 MATTIS ET AL., QUASI-JUDICIAL, supra note 31, at 1. 39 OR. DEP’T OF LAND CONSERVATION AND DEV., Understanding Oregon’s Land Use

Planning Program, Chapter 4: Making Land Use Decisions, [hereinafter Understanding Oregon’s Land Use], http://www.oregonlanduse training.info/data/4_index.html (last visited Feb. 17, 2017).

40 BUREAU OF GOV’T RESEARCH SERV., supra note 34, at 1. 41 Id. 42 See OR. REV. STAT. ANN. §§ 215.416, 227.175 (West 2016). 43 OR. REV. STAT. ANN. § 197.763 (West 2016).



prescribe a good deal of regulations, much of the detail and nuance in procedural law is left to local jurisdictions to be further fleshed out.44 In other words, each county and city may tailor its framework and certain conditions to its staff, time, and budget requirements.45 Regarding public participation, local jurisdictions may go beyond statutory regulation and grant more rights and better conditions to interested citizens and other stakeholders. But if disputes about maintaining minimal procedural rights in local ordinances occur, standards given by state rules must be followed.46

In short, a development proposal must be first mailed to a local government body in the form of a written application. Thereafter, all affected parties must be informed and shall be granted an opportunity for presenting and rebutting evidence, in writing and orally, before or during a public hearing. After collecting data, an impartial decision maker evaluates the application from the view of applicable criteria, including the relevant objections of affected parties and public participants. Finally, an initial decision is rendered, usually approving or denying the proposed development. Sometimes these initial decisions are appealed to a higher administrative body or challenged in the courts.

B. The Czech Republic−The Building Permit Process in Context

Unlike in Oregon, Czech Republic follows a two-step land use decision-making process. The first step is issuance of a “land location permit” allowing conditional placement of a certain building type on an individual land lot.47 The second step is the process of issuing a “building permit,” focusing primarily on whether the technical aspects of the building comply with technical norms and other statutory requirements.48 Among other things evaluated are materials used, construction technologies, operative methods, timelines, and protection measures towards the proximate environment.49 The decision-making bodies, which fall under local government

44 2 LAND USE 14-9 (4th ed. 2010). 45 MATTIS ET AL., QUASI-JUDICIAL, supra note 31, at 12. 46 2 LAND USE, supra note 44. 47 IVANA PRŮCHOVÁ ET AL., STAVEBNÍ ZÁKON A OCHRANA ŽIVOTNÍHO PROSTŘEDÍ

[The Building Act and Protection of the Environment] 101 (2011) (Czech). 48 JIŘÍ PLOS, NOVÝ STAVEBNÍ ZÁKON S KOMENTÁŘEM−PRO PRAXI [New Building Act

with Commentary−For Practice] 103 (2007) (Czech). 49 Id.




jurisdiction, are called “building administrations.”50 In sum, building administrations magisterially make decisions about rights and duties of persons pertaining to construction projects in the area of public building law.51

Two statutes predominantly incorporate procedural rules: the Building Act from 200652 and the Administrative Procedure Code from 2004.53 The Building Act contains specific procedural rules applicable to the building permit process; the Administrative Procedure Code covers general administrative regulations, along with gaps in the Building Act. Provisions of sections 108−118 of the Building Act, appearing within the chapter “Building Code,” detail procedural steps to be carried out by the building administrations and all concerned stakeholders. 54

In short, a developer initially submits a building permit application describing the proposed project.55 The building administration inspects the proposal, gathers all required documentation and data, and then notifies the potentially affected persons.56 Notified participants may access information from the administration’s record, and for a very limited time period, contest the proposal in writing.57 In some cases, when a public hearing is held, concerned stakeholders and members of the public may verbally express objections.58 Further, the building administration evaluates the relevant opinions and objections of nearby neighbors and other concerned citizens in order to secure the necessary environmental protections.59 After consideration, a decision is rendered that either grants a permit or

50 O územním plánování a stavebním řádu [town and country planning and building code], Zákon č. 183/2006 Sb. ve znění pozdějších předpisů [Act Coll. 183/2006, as amended] (Czech) [hereinafter Building Act].

51 Id. § 132(1). 52 See generally id. 53 Správní řád [Administrative Procedure Code], Zákon č. 500/2004 Sb. ve znění

pozdějších předpisů [Act 500/2004 Coll., as amended] (Czech) [hereinafter Administrative Procedure Code].

54 Building Act, supra note 50, §§ 103−157. 55 Id. at § 110(1). 56 Building Act, supra note 50, §§ 111−112. 57 Administrative Procedure Code, supra note 53, § 38; Building Act, supra note 50, §

112(1). 58 Building Act, supra note 50, § 112(1). 59 Id.



denies the proposal.60 The outcome must be based on findings supported by evidence, and altogether meet the statutory criteria.61 Czech law allows appeals to higher decision-making administrative bodies and courts as additional control and review mechanisms.62 Ultimately, if the decision necessitates no further appeals, the developer can commence the construction.63

In the Czech Republic, the Ministry of Regional Development, an executive branch responsible for the area of development and building law, promulgates more detailed and technical regulations, called “Decrees,” within the limits of the statutes. Unlike in Oregon, local jurisdictions are not empowered to adopt additional specific procedures or grant more participatory rights, so they cannot tailor laws to suit local needs.

III PARTICULAR PHASES OF PROCESS

Permitting processes in the Oregon and Czech legal systems are somewhat similar. Procedural phases required by the statutes typically include the following: application, public notice, public hearing, decision (including findings), and appeal. However, both the Oregon and Czech systems have their own specificities concerning public participation.

A. Application

1. Oregon Law−Broad Public Access to Information

A developer or a landowner, often called an “applicant,” commences the building permit process by filing an application to the empowered local governmental body, a “Hearing Officer” or a “Planning Commission” for example.64 The applicant is required to submit all documents or evidence relied upon in the application.65 The

60 Building Act, supra note 50, § 115(1); Administrative Procedure Code, supra note 53, § 66(1).

61 Building Act, supra note 50, § 111(1); Administrative Procedure Code, supra note 53, § 66(1).

62 Administrative Procedure Code, supra note 53, § 81. 63 Building Act, supra note 50, § 115. 64 OR. REV. STAT. ANN §§ 215.020, 215.406 (West 2016) (explaining county

procedures); OR. REV. STAT. ANN §§ 227.090, 227.165 (West 2016) (explaining city procedures).

65 Id. § 197.763(4)(a).




statute further stipulates all documents submitted be available to the public.66 Thereby, any member of the public willing to participate, regardless of particular intent, is provided with all relevant specifications, including purpose and use, dimensions, and traffic accommodations of the proposed project.

2. Czech Law−No Public Access to Inspect the Application

The building permit procedure in the Czech Republic also starts with filing an application called a “Building Permit Request” with the respective building administration relevant to the particular type of project or structure to be constructed.67 Similar to the procedure in Oregon, the application contains significant detailed technical information about the proposed project. Additionally, an application submitted in the prescribed form includes mandatory addenda, inter alia a property deed, a schedule of construction control checkups, and the project documentation. The project documentation, which comprises a project drafted by an architect, has to be in compliance with applicable laws and comprehensive plans.68 As in Oregon law, all the submitted documents form the record, however, not every member of the public may inspect the record’s contents. That right is reserved for those who prove a legal claim or other significant need for inspecting the record.69 The statute also denies access to the record when such access may harm the rights of any other participant of the building process.70 Such regulations, if vaguely interpreted, often strictly limit civic engagement and public control over the course of project compliance with applicable criteria.

B. Public Notice

Parties and stakeholders in the building process are, to some extent in both Oregon and Czech Republic, informed about development proposals and upcoming public hearings through a dissemination of

66 Id. 67 Building Act, supra note 50, § 110; Administrative Procedure Code, supra note 53,

§§ 37, 45. 68 Building Act, supra note 50, § 110(2)(b). 69 Administrative Procedure Code, supra note 53, § 38(2). 70 Id.



public notices.71 Who receives the notice, on the other hand, in Oregon and in Czech Republic, depends usually on the proximity of proposed land and where the stakeholders permanently live. Furthermore, interested persons may decide to actively participate in the proceedings to address their own concerns. In this respect, public notice serves as one of the pillars of public participation, though these states approach this tool in a different manner.

1. Oregon Law−Announcement as far as It Goes

Influenced by Fasano, Oregon law72 requires that affected neighborhood associations, and enumerated landowners of lots abutting or in certain proximity to the prospective land, receive adequate notice of the development proposal and any upcoming hearings.73 Statutes prescribe the range of individuals to be served by notices in a precise manner, by distance of relevant properties from the proposed site or according to the action-radius of a local civic organization dealing with the community interest. More specifically, Oregon statute provides that notice shall be provided to owners of property located:

(A) [w]ithin 100 feet of the property which is the subject of the notice where the subject property is wholly or in part within an urban growth boundary; (B) [w]ithin 250 feet of the property which is the subject of the notice where the subject property is outside an urban growth boundary and not within a farm or forest zone; or (C) [w]ithin 500 feet of the property which is the subject of the notice where the subject property is within a farm or forest zone. (b) Notice shall also be provided to any neighborhood or community organization recognized by the governing body whose boundaries include the site.74

Aside from statutory requirements, notice regulations may also be governed by procedural rules controlled by local codes.75 For example, cities may extend the feet-radius of the notice-served area so more potentially affected neighbors are notified.76 Additionally, occupants of relevant lots, tenants, for example, are sometimes

71 Or. Dep’t of Land Conservation and Dev., An Introductory Guide to Land Use Planning for Small Cities and Counties in Oregon, 23−24 (2007), http://www.oregon.gov /LCD/docs/publications/introductory_guide_to_land_use_planning_in_oregon.pdf.

72 OR. REV. STAT. ANN. § 197.763(3)(f) (West 2016). 73 MATTIS ET AL., QUASI-JUDICIAL, supra note 31, at 5. 74 OR. REV. STAT. ANN. § 197.763(2) (West 2017). 75 MATTIS ET AL., QUASI-JUDICIAL, supra note 31, at 2. 76 Id.




included.77 Oregon statutes do not require the notice be placed directly on the site, allowing for options such as a billboard, but local jurisdictions are encouraged to include such provisions in their codes.78

The minimum time limit in which a notice must be delivered to prospective stakeholders is generally twenty days before the public hearing.79 Again, local ordinances may extend such a limit to allow participants more time to act.80 Adverse participants may use all the time given to object to and comment on the application prior to the public hearing.81

Because Oregon does not have a public registrar of property titles, or deeds, as is common in the Czech Republic, ownership of land, for the purpose of notifications, is deduced from the most recent property tax assessment rolls.82 The aim of this measure is to secure, as accurately as possible, the current ownership of each property along with any changes of address of current owners.83 Unfortunately, most counties only conduct the tax roll once a year and possess no obligation, and little incentive, to update it more frequently.84 Thus, the Czech Republic public registrar of property titles enables a more accurate assessment of who the current landowners are.

The jurisdiction must provide notice, the content of which must:

(a) [e]xplain the nature of the application and the proposed use or uses which could be authorized; (b) [l]ist the applicable criteria from the ordnance and the plan that apply to the application at issue; (c) [s]et forth the street address or other easily understood geographical reference to the subject property; (d) [s]tate the date, time, and location hearing; (and) (e) [s]tate that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the decision-maker an

77 EUGENE, OR., LAND USE CODE 9.7007(5)(b)(1)−(2) (requiring applicants in the City of Eugene, Oregon, to disseminate notices to owners and occupants of properties within 500 feet of the subject property and to city-recognized neighborhood associations whose boundaries are within 300 feet of the subject property).

78 Understanding Oregon’s Land Use, supra note 39. 79 OR. REV. STAT. ANN. § 197.763(3)(f)(A) (West 2017). 80 MATTIS ET AL., QUASI-JUDICIAL, supra note 31, at 3. 81 OR. REV. STAT. ANN. § 197.763(4)(b) (West 2017). 82 Id. at § 197.763(2). 83 2 LAND USE, supra note 44, at 14-31. 84 Id.



opportunity to respond to the issue precludes appeal to the board based on that issue.85

The provision under section (e) is commonly referred to as the “raise it or waive it” rule.86

Failure to deliver a notice renders a procedural error, which may result in remand on appeal if the omission prejudiced the petitioner’s substantial rights.87 The local government, however, might exclude such an error by demonstrating the notice was given by affidavit.88 In addition to a mandatory mailing, the content of the notice may also be distributed by other means, including posters, newspaper publication, radio, and television.89

2. Czech Law−Limited Notification and Insufficient Time to Act

Like the process in Oregon, after the Czech building administration receives the full and accurate permit application, it disseminates notices in an announcement phase. Besides the applicant, notices are sent to the following persons: (1) the land owner of the proposed site and the building standing on it, if the ownership rights of the landowner may be directly affected by the designed structure; (2) the landowner of the neighboring site or the building standing on it, if ownership rights may be directly affected by the designed structure; (3) a person who has the right to the neighboring ground corresponding to an easement, if this right may be directly affected by the designed structure; and (4) a person or an institution protecting special public interests, if interests could be affected and there was no prior land use decision pertaining to such interests.90 In comparison, in Oregon the list of persons and organizations treated as participants, and notified and granted various procedural rights is somewhat more defined.

Rather than basing participation opportunities on distance from a proposed site, the Czech Republic bases participation purely on the discretion of a building administration’s official, or in other words, that official’s current interpretation of statutory requirements.91 Such

85 OR. REV. STAT. ANN. §§ 197.763(3)(a−f) (West 2017). 86 2 LAND USE, supra note 44, at 14-73. 87 Seagraves v. Clackamas Cty., 17 Or. LUBA 1329, 1336 (1989). 88 2 LAND USE, supra note 44, at 14-33. 89 OR. REV. STAT. ANN. § 197.763(8) (West 2016). 90 Building Act, supra note 50, at § 109. 91 Id. at § 109(e).




discretion, often narrowly executed, has been subject to appeals and lawsuits brought up by persons who, despite living nearby, have not been treated as being directly affected, including a 2009 Supreme Administration Court decision that was a milestone in Czech jurisprudence.92 In this case, the court assessed the issue of whether neighbors can participate and object to proposed projects when the statute prescribed that such neighbors have to be owners of the neighboring site.93 The court denied the allegation that the statute meant only owners of sites that “have a common border with the site of proposed project.”94 It explained that even someone who lives in proximity of the proposed site, but does not have a common border with the site of the proposed project, can be in fact affected by such project, and should therefore have the right to participate in the permit process.95

In addition, Czech notifications are directed not to individual addressees but to an entire group in situations where potentially affected neighboring sites are comprised of multiple individual landowners.96 Moreover, the announcement to such a group is merely placed on the official notice board in the local city hall.97 Chances to be effectively informed about proposed actions are therefore even lower. Like Oregon, Czech law does not demand local governments to post an appropriately-sized informative banner on the prospective site location so as to secure transparency for the general public. However, local Czech jurisdictions cannot mandate such easy-to-see notification based on their local codes the way local jurisdictions in Oregon can.

After obtaining notice, participants have a limited time to prepare their comments and objections in the Czech Republic.98 Like Oregon’s “raise it or waive it” rule, participants are informed in the notice that they have to address all issues, with local authorities required to respond to those comments no later than the public

92 Rozsudek Nejvyššího správního soudu ze dne 19.6.2006 (NSS) [Decision of the Supreme Administrative Court of June 19, 2006], 5 As 67/2008-111 (Czech).

93 Id. 94 Id. 95 Id. 96 Administrative Procedure Code, supra note 53, at § 144(6). 97 Id. at § 25. 98 Building Act, supra note 50, at § 112(1).



hearing.99 But, because notice is predominantly served only ten days before the public hearing or, in the absence of a public hearing, affected parties have only a ten-day comment period, the public engagement is severely curtailed. This applies especially in the case described supra, when potentially affected neighboring sites are comprised of multiple joint landowners who are not served by notices individually, but only as a group, and on the official notice board far from their residency.

From an environmental protection perspective, special governmental agencies that operate under various environmental-related statutes and are supposed to have environmental expertise must take a hard look at developmental proposals.100 In the process, the building administration notifies those special governmental agencies and requests a binding standpoint relevant to the particular case.101 But the short time limit of about ten days, given for issuance of the binding standpoints, instead promotes less detailed scrutiny and a barely sufficient assessment of all environmental impacts.102

C. Public Hearing

Public hearings, both in Oregon and in the Czech Republic, are usually the most effective platform for affected neighbors to address the permit applicant. During this hearing, the attendees may immediately react to comments and suggestions made by all parties involved.

1. Oregon−Mandatory Dialogue

The hearing officer or planning commission must hold at least one public hearing under Oregon law.103 Generally, the hearing takes place either at the local city hall or at the designated site. In the beginning, an empowered official first summarizes the case, including information about the proposed project and applicable criteria and then expresses his own views and recommendations.104 Building upon Fasano v. Board of County Commissioners, the applicant has full

99 Id. 100 For instance, urban environmental department. 101 Building Act, supra note 50, at § 112(1). 102 Id. at § 112(2). 103 OR. REV. STAT. ANN. § 215.416(3) (West 2016); OR. REV. STAT. ANN. §

227.175(3) (West 2016). 104 Understanding Oregon’s Land Use, supra note 39, at 2.




rights to present his or her case at the beginning of the public hearing. Thereafter, other participants may orally challenge the proposed project.105 One of the most important elements of public hearings is the right of any member of the public to present evidence and rebut evidence supplied by the applicant to suffice the permit criteria.106 The local governmental body may, however, set limits on the manner of oral presentations and rebuttals to encourage written submissions before the hearing.107

2. Czech Law−Optional Public Hearing and Limited Comments

The Czech building administration is not required to hold public hearings. According to the Building Act, the administration only joins local inquiry if purposeful, but can refrain from doing so if the site is well-known and all documentation is sufficient.108 In such cases, the building administration only notifies the statutory participants and local authorities about the timeframe, usually ten days long, in which they need to submit their comments and objections in writing.109 In comparison to Oregon statutory law, Czech law provides the general public with a narrower opportunity to show up and democratically object to the proposal at the public hearing, and in many cases the public hearing is not even held. In addition, participating neighbors do not typically have sufficient time to prepare arguments and send them in writing in such a short period. Ultimately, this makes the entire Czech process less transparent and less credible in the eyes of the public.

D. Findings and Decision

Generally, after a public hearing takes place and participants and local authorities express their comments and requests, the decision maker delivers a final decision based on the gathered facts and conclusions drawn from the law. Findings incorporated in the decision are meant to encourage the use of hard and clear reasoning, thus preventing the governing body from exceeding its lawful

105 See Fasano v. Bd. of Cty Comm’rs, 264 Or 574 (1973). 106 Understanding Oregon’s Land Use, supra note 39, at 2. 107 MATTIS ET AL., QUASI-JUDICIAL, supra note 31, at 6. 108 Building Act, supra note 50, at § 112(1)-(2). 109 Id.



authority.110 The final decision will be either to approve the application, approve the application with modifications, or deny the application.

1. Oregon Law−Substantial Evidence and Notice of Decision

Oregon statutes set forward requirements for findings, which should contain the following: a recitation of the applicable law; basic facts about the proposed use, permit, or land use change relevant to that law; the reasoning explaining how the decision maker relates the basic facts to the applicable law; and, finally, the ultimate conclusions of relevant facts and regulations.111 Adequate findings aim to safeguard decisions from being arbitrary and capricious. Moreover, they serve as a basis for review on appeal.112

The outcome of the decision, regardless of whether the application is approved or denied, must be supported by “substantial evidence in the whole record.”113 Substantial evidence is deemed “evidence on which a reasonable, prudent person would rely in reaching a decision.”114 Each decision must rest on standards and criteria, which are incorporated in the land use regulations from the state to local level. Cities can adopt their own subject matter standards and criteria in zoning ordinances, so long as they are in compliance with the comprehensive plan, for many structural elements. These can include, for example, setbacks, heights, operational hours, parking, noise, light, home occupations, drive-through uses, storm water drainage, water, gas, electric, etc.115 Such power enables cities to create unique, community-based and nature-friendly neighborhoods.

The final land use decision must be rendered within the statutory time period, which begins to run upon the filing of the complete application. If the site of a proposed building is located inside urban growth boundaries, the process must be finished within 120 days.116 For outside urban growth boundaries the statute prescribes 150 days.117 Once a decision is made, the “Notice of Decision” must be

110 MATTIS, FINDINGS IN LAND USE DECISIONS, supra note 25, at 4. 111 2 LAND USE, supra note 44, at 14-137. 112 Id. at 14-107. 113 OR. REV. STAT. ANN. § 197.835(9)(a)(C) (West 2016). 114 2 LAND USE, supra note 44, at 14-116. 115 Id. at 14-81. 116 OR. REV. STAT. ANN. § 227.178(1) (West 2016). 117 OR. REV. STAT. ANN. § 215.427(1) (West 2016).




given to all parties in the proceeding.118 Through the notice, participants and interested members of the public are notified about the final outcome, thus providing them with an opportunity to appeal.119 With respect to dealing with the objections of stakeholders, the planning commission covers all concerns in the final decision.

2. Czech Law−Meeting Criteria Standard and Short Time for Decision

According to Czech law, the building decision is comprised of an obligatory statement, reasoning, and specifications of the possible redress procedures available.120 In the obligatory statement, the building administration secures the protection of public interests according to binding opinions and statements of local authorities.121 In addition, the building administration sets forth conditions, technical norms, and operations for the proposed project.122 The legal standard to issue the building permit is simply to meet the relevant legal criteria.123

The essence of the reasoning section consists of dealing with the comments and objections from participants. However, according to the statute, neither the general public nor anyone other than statutory participants are eligible to submit comments to the building administration.124 The subject matter of comments must relate to the project’s documentation and to how the project will be constructed or used. It is up to the building administration to deal with every relevant comment and to include all responses in the explanatory part of the final decision. When resolving participants’ comments, the decision maker should prioritize settlements of discrepancies.125 However, when agreement cannot be achieved, the building administration

118 2 LAND USE, supra note 44, at 14-62. 119 Id. at 14-63. 120 See Building Act, supra note 50, at § 115; Administrative Procedure Code, supra

note 53, at § 67; Vyhláška, kterou se provádějí některá ustanovení stavebního zákona ve věcech stavebního řádu [Decree implementing certain provisions of the Building Act in matters of building regulations], 526/2006 Sb. (Czech).

121 Building Act, supra note 50, at § 115(1). 122 Id. at § 114. 123 Id. at § 115(1). 124 Id. at § 114(1) (stating participants may submit comments but leaving out any

mention of the general public or anyone else). 125 Administrative Procedure Code, supra note 53, at § 5.



makes its own discretionary decision based on its own set of considerations to settle disagreements or discrepancies, except in disputes over ownership rights.126

The building permit is legally valid for a period of two years.127 This timeframe provides the developer with greater flexibility to commence and finish the construction.128 The statute allows the building administration to prolong validating the permit repeatedly, even though the environmental conditions on which the initial permit was issued might change quite drastically.129 When an extension is granted the statutory period is suspended, so there is no new process of permit review.130 Because of this, participants do not have a chance to oppose an approved project even though it may, due to changed environmental impacts, cause harm to them or the environment.

The final decision must be rendered within a specific time period from the day the complete application is submitted. The Building Act prescribes that the building administration, in simple projects, should decide without hesitation.131 This section goes on to clarify that a decision should be no later than sixty days for simple projects, and no later than ninety days for more difficult projects.132 In comparison, Oregon law provides the decision maker with more time to thoroughly evaluate the applicant’s proposal, as well as participants’ objections, comments, and any possible environmental impacts.

E. Appeals

Systems of democratic values stand on the idea everyone has a voice, and every decision should be reviewable and rectifiable. Applying these democratic values to the building procedure, each participant of the building permit process should have the right to appeal if the final decision is flawed.

126 Building Act, supra note 50, at § 114(3). 127 Id. at § 115(4). 128 Id. 129 Id. 130 Id. 131 Id. at § 112(3). 132 Id.




1. Oregon Law−Decentralized Appeals First-Centralized Later

The Oregon legal system provides two levels of building permit administrative review, local decentralized and state centralized.133 On the decentralized level, any local government may enact an ordinance for establishing internal appellate review.134 For instance, the city planning commission may review decisions of the city hearing officer. The local review proceeding should always be held first, but jurisdictions may choose to not establish such a process due to budgetary restrictions.

On the state level, however, the legislature created a centralized appeal system, ruled by a state agency, the Land Use Board of Appeals (LUBA). LUBA reviews the bulk of land use decisions made by local governments.135 The agency consists of a three-member board appointed by the Oregon Governor, which is comprised of experts, some of whom are attorneys, in land use planning.136

In order for LUBA to hear a case, a petitioner must file a notice of intent to appeal within twenty-one days of “actual notice where notice is required.”137 The neighbors and public citizens may directly hold the position of a petitioning party or intervene on the side of the petitioner.138 To respond to the appeal, LUBA hears oral arguments from the parties on the issue and delivers a written opinion, which usually either affirms, reverses, or remands the decision for additional consideration.139

2. Czech Law−Disperse Appellative System and Shorter Time for Appeal

The Czech administrative appellate system is decentralized, but in a manner different from Oregon’s. For historical reasons, the Czech Republic’s governmental and development structure consists of three

133 See OR. DEP’T OF LAND CONSERVATION AND DEV., Predictability in Planning 2, http://www.oregon.gov/LCD/docs/publications/predict.pdf (last visited Feb. 8, 2017).

134 OR. REV. STAT. ANN. § 215.422(1)(b) (West 2017) (for counties); OR. REV. STAT. ANN. § 227.180(1)(b) (West 2017) (for cities).

135 MATTIS, FINDINGS IN LAND USE DECISIONS, supra note 25, at 1. 136 LAND USE BOARD OF APPEALS, Frequently Asked Questions (FAQ’s), https://www

.oregon.gov/LUBA/Pages/FAQ.aspx (last visited Feb. 17, 2017). 137 OR. REV. STAT. ANN. § 197.830(3)(a) (West 2017). 138 OR. REV. STAT. ANN. § 197.830(7) (West 2017). 139 Understanding Oregon’s Land Use, supra note 39, at 3.



levels: local, regional, and state. Accordingly, the local building administration decision can be appealed to the regional building administration, and the regional building administration outcome may be overturned by the state building administration, represented by the department of the Ministry of Regional Development. In total, there are fourteen regional building administrations, including the one for the city of Prague, the capital, and 700 total local building administrations in the Czech Republic.140 According to Czech law, parties of the proceeding only have fifteen days to file a motion of appeal after notification of the final decision.141

Comparing both administrative appellate systems in the Czech Republic, dispersed regional bodies interpret and apply building regulations in a rather diverse manner. Therefore, legal certainty for public participation or environmental protection in the Czech Republic may seem less achievable than in Oregon, where challenges of local jurisdictions gather in front of a united appellate body. Although the Ministry of Regional Development in the Czech Republic interprets and unifies regulations by decrees, only a few cases manage to secure appellate jurisdiction. In terms of the amount of time provided to appeal local decisions, Oregon law grants substantially more time, leaving participants to comfortably prepare and object to errors in the prior proceedings.

CONCLUSION

Civic engagement, especially on the local level, is the lifeblood of progressive democracy.142 The participation of environmental non-profit organizations is vital because their intent and expertise clearly relates to environmental protection. Even though the landowners try to advance their own personal interests, having multiple pertinent stakeholders participating in building permit processes ultimately achieves environmentally sound outcomes. Because of this, public engagement is indispensable for achieving environmental justice with regard to land development.

140 ÚSTAV ÚZEMNÍHO ROZVOJE [Institute for Spatial Development], in Data z dotazníků obecných stavebních úřadů−prvoinstančních včetně grafů [Data on Surveys of General Building Administrations−First-Instance Including Graphs] (Excel), http://www .uur.cz/default.asp?ID=4957, (2015).

141 Administrative Procedure Code, supra note 53. 142 See MASON, supra note 1, at 199.




Both Czech and Oregon laws provide the public with some degree of access to participation in the building permit process, or, as it is called in Oregon, the “quasi-judicial land use process.” Participants of the building permit process are generally eligible to submit comments, object to the proposal, attend the public hearing, and appeal the final decision. Nevertheless, there are many differences between Oregon and Czech processes, leaving the level of access of stakeholders substantially lower in the Czech Republic.

First, the array of stakeholders served by notice, and allowed to contest the project, is substantially narrower and less specific in the Czech Republic. The distance-approach in Oregon gives adjacent landowners automatic participation rights. This applies especially for local jurisdictions that provide access above the minimum laid out in statute. Czech building administrations, which decide on which landowners might be influenced by the proposal, possess broad discretion, leaving ample room for an arbitrary and capricious approach, and ultimately diminishes opportunity for public participation. This discretion negatively influences the range of persons eligible to submit comments and file an appeal to review final land use decisions.

Second, the amount of time to object to a proposal, either orally or in writing, differs from twenty or more days in Oregon, to about ten days in the Czech Republic. From the perspective of practice, even three weeks often presents an insufficient timeframe for a thorough proposal assessment. Thus, it is unlikely that less than half that period will secure effective preparation of arguments and ultimately encourage public oversight.

Third, public hearings are a vital component of the process as these allow stakeholders to directly meet other participants and orally challenge the developer. Such hearings in Oregon are always mandatory. Conversely, the building authority in the Czech Republic can decide to not hold any public hearing per its discretion and instead have a comment period only. That makes the Czech process less transparent and prevents civic engagement from flourishing.

Fourth, the appellate administrative body in Oregon serves as a centralized institute, interpreting and applying relevant laws in a unified way. In the Czech Republic, decentralized and multiple appellate bodies leave stakeholders uncertain of the thoroughness of decision making, more often calling for later court review. Such a



scenario, however, incurs additional time and money, and thus bars many organizations, especially environmental NGOs, from participating in civic involvement cases.

Even though participation in the quasi-judicial land use process is immensely important for sound decision making, Czech law does not provide public members with as many opportunities and rights as in Oregon. Thus, Oregon law should serve as a model for the enhancement of law in the Czech Republic.

public participation and environmental protection in the … · 2017-10-17 · simak (do not...

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