A recent court decision is a good reminder of the importance of creating a record and properly raising issues during open record appeals of land use and environmental permit decisions. A “record” in the context of such an appeal usually consists of the documents and other evidence reviewed by the appellate decision maker when reaching its decision on an appeal. This record is created during an open record appeal of the decision. As with many land use and environmental appeals, following an open record appeal is a closed record appeal. A closed record appeal is based on the record created during the open record appeal of the same issues. That is, with a closed record, with very few exceptions, no new evidence is reviewed. So, generally speaking you have one opportunity to create your record. And, every subsequent appeal is based upon that record. As such, it’s important to support the decision you are defending or opposing with ample documentary and testimonial evidence.
It is also important to properly raise all of your appeal issues which will be considered during the open record appeal. Failure to do so can result in dismissal of the issue if raised for the first time during subsequent appeals. This dismissal is based on the doctrine of exhaustion of administrative remedies. Exhausting administrative remedies essentially means that all rights of administrative appeal have been tried and exhausted. The record must contain more than a hint or slight reference to the appeal issue. Some factors to consider when analyzing the sufficiency of properly raising appeal issues include the amount of time, clarity and legal support contained in the record of the issue. As such, it is a good idea to state your issues and also include evidence in your record in support of your position.
A good and complete record will help support your position on all your appeal issues at every level of appeal. So, taking the time and effort to create your record will serve you well.
Simi Jain, Attorney
Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
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