A fundamental concept of the American legal system is the right to "due process," or equal treatment under the law. When due process is applied in the courtroom, the court's procedures are open and applied impartially and equally to everyone. This standard of fairness also applies to commissions and their proceedings.

Due Process Standards

Commissions should apply due process standards to all public hearings and property decisions they make. They can do this by: 

• Following set policies and procedures
• Being impartial
• Making consistent decisions based on established guidelines
• Keeping clear and complete records

Commissions should strictly follow their local public hearing policies and provide ample public notice of hearings. This can be done through individual mailings, published notices in local newspapers, and posted notices. Individual mailings should be sent to people who are most directly affected, such as owners and residents of the property in question, and adjacent property owners. Commissions should also keep the State Historic Preservation Office informed with copies of notices, agendas, and meeting minutes.

Applying Due Process to Public Hearings

Public hearings should be held prior to governmental action affecting a property. Public hearings should be fair and efficient, and conducted in an orderly and business-like manner. It is helpful if at least one member of a commission has a good working knowledge of parliamentary procedures.

For the proceedings to be fair, the hearing must:

• Be held in a meeting open to the public
• Give fair notice of the proposed action and the grounds asserted for it
• Be conducted as an unbiased tribunal
• Provide an opportunity to present reasons why the proposed action should or should not be taken
• Provide an opportunity to present witnesses and relevant evidence
• Include a record of the proceedings with a statement of reasons

Public hearings have many of the same elements of courtroom proceedings, such as the presentation of evidence and testimony of witnesses. However, public hearings do not need to be as formal as courtroom proceedings as long as opposing interests have a reasonable opportunity to present their views. Most jurisdictions do not require that witnesses be sworn in at public hearings, but some municipalities have statutes that do require testimony under oath. Commission members should check with their local counsel to make sure they are complying with local laws.

Any interested parties have the right to be heard at a public hearing and should be given the opportunity. The commission can set reasonable time limits, but these limits must be applied equally to all parties. For example, the commission may allot a set amount of time to each party with a brief opportunity for rebuttal, and they may allow anyone to submit written comments for a period of time following the meeting.

It is important that commission members treat everyone fairly and impartially throughout a public hearing. Members should be polite, respectful, and give speakers their full attention. They should never express personal feelings about individuals. Commissions should always maintain control and decorum and not allow a meeting to get out of hand or become disruptive.

Good record-keeping of the proceedings is essential. Meticulous minutes will be helpful if questions arise later. In the case of an appeal, meeting minutes can help to support the commission’s decision. Hearings should be audio or video recorded, and transcriptions should be made available to the public.

• Preservation Commission Processes
• Defensible Decision-Making for Preservation Commission