But, that’s not Fair! Appearance of Fairness

Over the years, I’ve heard people protest that decision makers are improperly persuaded into making a land use decision. Persuading decision makers to make a specific land use decision can be both legal and proper for certain types of decisions.  In fact, decision makers consider public input when deciding land use issues.  One important legal doctrine in the land use arena, which helps to prevent improper bias or prejudice by a decision maker, is the Appearance of Fairness doctrine.

The Appearance of Fairness doctrine insures a certain amount of objectivity from our government when they make land use decisions and that the decisions are not improperly based on bias. This doctrine only applies to quasi-judicial decisions and is captured in RCW 42.36.  When a quasi-judicial decision is pending before a decision making body, members of that body are prohibited from “ex parte” communications with a proponent or opponent of the matter pending for decision.  As with most legal rules, there is an exception to this prohibition.  If there is an ex parte contact, the decision maker must place on the record the substance of the ex-parte communication, provide a public announcement of the communication, and allow for parties to rebut the communication.

In order to disqualify a decision maker for violation of the Appearance of Fairness doctrine, the challenge must be made as soon as the basis for disqualification becomes known. The result of violation of the doctrine is that the decision can be invalidated and a new hearing and decision will be required.  While the doctrine seems straightforward it is sometimes difficult to discern what land use decisions are quasi-judicial and also, at what point in the process it applies.  However, it is a good idea for applicants, the public and decision makers to keep the Appearance of Fairness doctrine in mind for quasi-judicial land use decisions as it helps keep the process fair for all engaged parties.

Simi Jain, Attorney