Zoning and planning board meetings fall into two broad categories. First is quasi-judicial, when the body acts to decide on a specific application, or the appeal of a decision already made. The second is legislative, as when a planning commission is in the process of adopting a new or revised code.

Procedures and standards for evidence introduced differ whether the public meeting is quasi-judicial, or legislative. But in particular, there are standards for developing what is called “the record.” I want to cite comments from two attorneys with background in planning and zoning law to help describe these issues of the record and satisfactory evidence.

NO DIFFERENCE WHO APPLIES

Eric Damian Kelly, a planner and attorney, reflected on zoning boards in a recent APA-sponsored continuing education session, “Well, I’ll start with what they should not consider, because that’s a big hazard area. First of all, it makes no difference who is applying, whether it is a criminal or one of the leaders of the most important church of the most important non-profit institutions in town. It just doesn’t make any difference.

“Who is opposed doesn’t make any difference. Who supports it doesn’t make any difference. How many people oppose it or support it—that’s rare—but how many people are there complaining has nothing to do with it. It’s what they have to say. It’s the substance of their comments that’s important.”

COMPETENT SUBSTANTIAL EVIDENCE

Another attorney, David Theriaque of Tallahassee, Fla., described the legal standard of evidence in his state, called “competent substantial evidence.” He quoted a Florida Supreme Court definition that competent substantial evidence “is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”

Theriaque said he should note what is “not” competent substantial evidence. “A petition is not competent, substantial evidence. The fact that 500 people have signed a petition to oppose a project or 500 people have signed a petition to support one or the room is packed with folks with shirts or signs with a circle and a slash through it. That is not competent, substantial evidence that a board member could rely upon such information to support his or her decision.”

(Note: the competent substantial evidence standard is used by Florida. Other states will have case law establishing their own standards for evidence in quasi-judicial hearings.)

WE WORKED FOR THOSE SIGNATURES

I guess one reaction to the above comments is to be deflated. What do they mean, we can’t pack the room for effect? We worked hard to collect all those signatures in support of our sign! That one commissioner and I go to church together—that counts for something, doesn’t it?

Another reaction would be to take seriously, very seriously, what is required of a public board to create a defensible record. (By defensible I mean a record that would stand up to a lawsuit by a defeated applicant.) 

The need to create a defensible record can play to our benefit in many instances. For example, consider the vast portfolio of USSC Foundation-sponsored traffic safety research, conducted by engineers at Pennsylvania State University. On the issue of the relationship between sign size and traffic safety alone, we have the research, we have the facts, and we have the algebraic calculations to justify appropriately sized signs.

On the other side of my hypothetical table? Opinions from a particular commissioner; he thinks it would be “nicer” if the community had only low monument signs. That board has to face the chance of eventual litigation if it clearly ignores on-point research. But it escapes from proper scrutiny if the USSC studies are not introduced. That is our responsibility, and our opportunity.

DIGITAL SIGNS UP; ACCIDENTS DOWN

Surely the headline above is a mistake. By any industry measure, there are now more digital/LED billboards and electronic message signs deployed in the United States than at any point since the technology was introduced. 

So square that information with this: U.S. highway deaths fell to their lowest level since the 1950s, with a nine percent drop in 2009 from the year before. How can that be? I thought “researcher” Jerry Wachtel had definitive proof that digital billboards create distractions. If that is the case (and you realize he has received “federal funding”) then would it not follow, with all the new digital sign installations that accidents would have increased? Back to the drawing board, Mr. Wachtel. 

TEXTING WHILE DRIVING: STUPID

Applause to the U.S. Department of Transportation for proposing a permanent ban on text messaging by drivers of interstate commercial trucks and buses. (And I note the Federal Register language does not include any language to the effect of “keep your eyes off those new-fangled signs.”)

A related agency, the Federal Motor Carrier Safety Administration, conducted research that shows that truck drivers sending and receiving text messages take their eyes off the road for 4.6 seconds of 6 seconds while text messaging. For comparison, the agency said, for a truck traveling at 55 miles per hour, a driver text messaging is traveling the length of a football field while not looking at the road.

At the state level, at least 20 states prohibit text messaging by all drivers. Jerry Wachtel and his ilk can conjure up as many scary scenarios as they want. But bottom line, it is text messaging and unrestrained cellphone use that comprises the vast majority of distracted driving. Let’s keep that in mind the next time one of these concern trolls starts to wax eloquently on the dangers of LED signs.