There are a few land use boards and commissions that continue their hearings until well after midnight. This practice must stop. It deprives the participants of a fair process.
The requirements of constitutional procedural due process are well-known: notice, the right to be heard, the right to challenge evidence, a fair and impartial decision maker, and a decision based on the record. Connecticut also has a common law right to “fundamental fairness” which is not coextensive with due process. The leading case of Grimes v. Conservation Commission of Litchfield, 243 Conn. 266, 274 (1997) describes it as requiring that the conduct in an administrative proceeding not violate the fundamentals of natural justice and, among other things, that participants have the right to produce relevant evidence and to cross-examine witnesses produced by an adversary or otherwise offer evidence in rebuttal.
There are reports of local land use hearings in some towns running to nearly 3 a.m. and later. Unless you are someone who stays up all night and sleeps all day, sometime after 10 p.m. or so, you are going to begin to suffer the effects of sleep deprivation.
One consultant who was at a Greenwich Inland Wetlands and Watercourses Commission hearing, and did not get home until 4:30 a.m. on March 13, 2012, had this to say about his diminished capacity: “I tried to make a point near the end and could not complete a sentence.” A lawyer at that hearing confirmed it ran until 2:45 a.m. According to the official minutes available online, the first and only public hearing that night started at 7:05 p.m. with the commission, staff, and approximately 100 others present. The minutes do not include a head count at 2:45 a.m.
Remarkably, and inconsistent with the usual practice, the minutes for March 12, 2012 do not give the date and time when the hearing ended. In contrast, the minutes on Feb. 27, 2012 state, “The meeting adjourned at 11 p.m.” The minutes for Jan. 23, 2012 end with, “The meeting adjourned at 12:30 a.m.” The commission ended its November 21, 2011 meeting at 12:15 a.m., according to its minutes.
Ask anyone in the land use business and they will regale you with tales of hard-fought battles waged long into the wee hours of the morning. They will tell you of the well-attended hearings in controversial matters that grind on for hours and what happens after 10 p.m. or so. The public attendees — not those paid to be there and not those on the board – those who must get up and go to work in the morning and get their children off to school, start to leave, slipping out the back like water running off a beach back into the ocean. It is at first almost imperceptible, but then those teams of combatants commanding the front-row need only glance back over their shoulders to see a landscape of empty seats. The insult added to this injury is that sometimes the public comment period is reserved for the end of the formal presentations and rebuttal, to those waning hours of the overly long hearing.
This is no way to conduct the business of local land use decision making. These late hearings take away the right of the public to be active participants and it is disabling to the experts and lawyers upon whom we depend to develop a complete and proper record. Some early morning, one of those people who stayed to the bitter end will die in an automobile accident when they fall asleep trying to get home.
The solution is simple. Each and every local board, commission, and agency should set a deadline by which local meetings and hearings must be concluded. They can almost always be continued to the next day or a day thereafter when people are fresh and alert and ready to re-engage. Let us suggest 11 p.m. for a curfew. And if it is a matter of great urgency, the local agency should be required to declare an emergency and to give substantive reasons for keeping the meeting open after 11 p.m.
We strongly encourage all municipalities to self-impose such a curfew and, if they do not act responsibly in taking the initiative on their own, the General Assembly should amend the enabling statutes to require that all such local land use meetings and hearings end by 11 p.m., except in the case of a declared emergency.•