On Duties of the Governing Boards of Regulatory Bodies
There is a doctrine being promulgated by some attorneys, members of regulatory/decision bodies, and others which we find to be deeply disturbing, and against the public good. Stated in it's usual form, the doctrine is "we have met the regulations, you must issue the permit or allow the action we requested".
We first met this doctrine at the St. Johns Water Management District. Members of the District Board quoted the doctrine in justification of issuing permits for development adjacent to an Outstanding Florida Waters. We were given to understand that this was a reflection of the position taken by the District's legal staff.
There a number of things wrong with this position. In the case of the Water Management district, some of the rules are based on the statement, "If 'A' is found to occur, then it is PRESUMED that 'B' is true. We have not found a discussion of the degree to which 'A' must be verified, nor of methods of checking that it is actually true. It seems that judgement must enter here.
It is not possible for a rule to cover all possible situations. Again, judgement must enter. Some of this is provided by staff, but their comments are almost invariably confined to physical facts. At this time there is no universally accepted yardstick for intangible factors. At one time there was a Federal concept which attempted to provide for such intangibles consideration. This was expressed as "Public Interest, Convenience or Necessity", often expressed as "PICON" for short. The concept allowed for such factors as opposition of a segment of the public, the increased cost to public bodies, and the factors of need and convenience or inconvenience. While the concept has merit, I have not seen it used much lately, a separate problem.
If an applicant or his attorney presents the "You must" as an argument, it is of course entirely self serving. Sometimes the presentation is "We have meet all requests of staff, so you (the decision body) cannot require anything more. No matter how presented, the discussion does not relate to the actuality of meeting the rules, but only to a promise that the rules will met. And promised are very difficult to realize, as recognized by the legal concept of "Breach of Promise". It can be very difficult to know that promises are kept to public bodies, because the enforcement staff is so small and overloaded that they must depend on occasional short visits. This is especially true for the promises made verbally when the matter is being heard. The promises would probably be different if they were required in writing.
It is even more disturbing to hear "We have to" quoted by a member of a regulatory or decision board. We are sorry to be blunt, but the matter is serious. Such a quote can indicate that the member has not read or understood the charter of his organization, especially the part which deals with goals and objectives. Or it can show that he has not taken the time needed to understand the proposed action and its ramifications, and is seeking as easy out. Or, worst of all, it can indicate an unwillingness to face up to the oath of office,"To Preserve and Protect", for fear that a courageous and forward looking decision will be politically or publicly unpopular.
We urge you to pay attention to the various decision processes. If you hear the words, "We Must", ask for the exact place in the charter of the organization which states this.
We haven't been able to find "We Must" anywhere.