An Equitable Approach to Zoning Notifications
Zoning Practice — May 2024
By Jenny Baker
In representative democracies, public notifications provide information about government activity so that citizens may make well-informed decisions. In the context of planning, state legislatures generally set the minimum requirements for local public notices, in support of open meeting laws, while allowing cities, towns, and counties to add greater detail or additional notification methods.
As long as zoning decisions are made in compliance with adopted ordinances, why bother issuing notice at all? Transparency is one concern, certainly, but due process is another: Citizens must be informed when the government is going to take action that affects them. Public notice also enables public participation, allowing citizens to state their opinions so that they may exert influence on their representatives to governing bodies. Unfortunately, as APA's Equity in Zoning Policy Guide notes, traditional notification practices for zoning decisions are inherently inequitable (§4.4.C). The good news is that planners and local officials don't have to accept the status quo.
This issue of Zoning Practice looks at increasing the equity of public notice practices by expanding upon the Equity in Zoning Policy Guide's recommendations. It examines key equitable or inequitable aspects of conventional notification practices and highlights potential new methods of notice that may enhance procedural and distributional equity.
A Quick History of a Long-Standing Practice
Historically, the practice of public notice dates back to the era before newspapers, when information was publicly posted in town squares. Newspaper publication of notifications dates back to 1665 in England, when the Oxford Gazette published notices from the king's court (Weber 2009).
This practice of notifying the public of government activity then carried over to the United States. Colonial newspapers published notices on various topics, and the practice became official in 1789, when the First U.S. Congress "required all bills, orders, resolutions, and congressional votes be published in at least three publicly available newspapers" (Acts of the First Congress §I-XIV-2).
State-level open meetings laws or zoning enabling statutes often prescribe minimum notification requirements. Typically, these requirements have focused on notifications published in newspapers and mailed to property owners.
A published notice — often described as that which is published in the "official newspaper or a newspaper of general circulation," both of which are precisely defined terms — is the standard required notification method for changes that affect large numbers of constituents, such as the adoption of a revised city- or county-wide zoning map. These are legislative actions that must be approved by elected officials on account of their widespread impact on many or all members of a community. In such instances, the advantage of a published notice (at least in the pre-internet era of more widespread newspaper circulation, when these laws were initially drafted) has been its capacity to reach a broad audience, particularly when individual mailings to widespread areas and large numbers of recipients would be prohibitive.
Alternatively, mailed notice is also a universal requirement, but its use applies in narrower circumstances, as when there are potential changes that would impact individual property rights, such as a change in zoning regulations that would create nonconformities. Mailed notice is also required when a proposed action on a property may impact adjacent or nearby properties, as in a rezoning. In such cases, mailed notice is normally sent to property owners (as listed on tax rolls) within a defined proximity of the proposed action. This proximity, or mailing notice radius, varies widely by community, and often also by the type of proposed action, based on the potential extent of impact. State statutes do occasionally describe the required mailing radius, but most often, that determination is left to individual communities.
Both published and mailed notices always convey the date and time of the public hearing on the proposed action, but it is normally left to the discretion of the jurisdiction to decide what other information must be included. Frequently, notices will also say what action is being proposed and where, but refer recipients to the planning department (historically, in person or by phone) for further detail.
Generally, state statutes allow communities to establish more extensive requirements (although subject to different establishment procedures for home-rule versus general-law communities). An example of this is the third common method of public notice, which is sign posting. Few state statutes mention posted notice as a requirement, but many communities describe this requirement in their zoning ordinance.
Equity Considerations in Public Notice
Regardless of the particular method of public notice, there are at least four distinct equity considerations to evaluate when establishing notification procedures and crafting specific notices: the information you share, the way you share that information, the steps you take to reach historically excluded or marginalized groups, and the opportunities for meaningful participation in decision-making processes.
Consider What You Say
Zoning can be complicated, but public notices need to be as simple as possible. The more complicated, legalistic, or technical the language used in any public notice, the fewer the members of the public who can, or will, take the time to understand it. Members of the public who receive a notice that is incomprehensible to them are less likely to have an opinion on the action described by the notice, let alone share it through written or in-person comments.
Consider How You Say It
Nearly all notifications — save those delivered during neighborhood meetings — are written, and even publicizing in-person meetings is generally done in writing. For various constituents in any community, written communication may present significant barriers. Level of literacy is one, and the language used is another. While it is nearly impossible to eliminate all barriers associated with written notice, offering information in languages other than English when they are common in a community is important to fostering equitable participation. Avoiding literacy limitations is more difficult, as alternative options such as publicizing public hearings on radio, TV, or podcasts is not always possible, either due to cost or lack of availability. Where such options do exist in a community and their use is not cost-prohibitive, they should be pursued, even if they are not written into a zoning ordinance as official means of public notification.
Consider Who Is Missing
Planning staff have all heard the truism that you can spend 90 percent of your resources trying to engage the 10 percent of a community that is normally underrecognized and hard to engage. In the context of the public process related to zoning actions, the percent of disenfranchised is likely far higher than 10 percent. Efforts to include historically excluded or underserved groups in the public process often require the investment of time and the building of trust — merely sending a piece of mail won't suffice to secure their participation. But identifying whose voices are missing, and working to build contacts and relationships with them, might lead to greater inclusion and participation over time.
Consider Means of Participation
A notice generally invites the recipient to participate in the public process, by offering their feedback on a proposed action, either by means of written public comment or by providing public testimony at the advertised public hearing.
Requiring public comment to be provided in writing runs into the same barriers described above when notice is provided in writing: It disenfranchises those who cannot or do not feel competent providing feedback in this way. The requirement for public testimony to be provided in person at the fixed time and location of the public hearing also presents barriers to participation. In-person requirements exclude anyone whose schedule prevents them from spending an evening or afternoon at city hall, along with anyone for whom public speaking is difficult or impossible.
Pandemic changes to in-person public meetings gave rise to some positive alternatives to these practices, such as remote participation in live meetings and asynchronous commenting platforms, many of which have been carried forward into the present. This is a good development, with virtual participation options enabling more inclusive participation. Where such changes have not yet been deemed permanent, they should be.
Updating and Expanding Traditional Notification Procedures
There are potential opportunities to update and expand the three most common means of traditional public notice — published newspaper notice, mailed written notice, and posted sign notice. These changes can improve equity by adapting these methods to reach a wider group of potential participants, but each change requires some additional cost or effort for municipalities and counties.
Newspaper Notice
The Pew Research Center indicates that that people still read newspapers, even though the majority are no longer touching paper to do so, but rather looking at a screen (Figure 1). Regardless of the means of delivery, relying on published notice is subject to several significant limitations that impact the equity of this method of notification.
First, while people continue to read parts of newspapers, it is not necessarily the part that would have a legal notice. Most readers glance at headlines and click through to actual news (paywall permitting), but fewer people than ever before are paging or scrolling through the "classified" section, where a legal ad would appear. Other methods for communicating what used to be conveyed in classified ads — job openings, items for sale and, yes, legal ads for public hearings — have almost completely eclipsed classified advertising in newspapers. This is evidenced by the steep drop in advertising revenue: Between 2005 and 2022, advertising (including classifieds) revenue declined from nearly $50 billion annually down to just below $10 billion annually (Pew Research Center 2023b). And while legal ads are not, by any means, the sole source of that revenue, they have been a consistent and reliable one. However, the overall decline in readership combined with the even more precipitous decline in classified readership means that legal ads are reaching ever smaller (and, as it happens, older and less demographically diverse) audiences.
It is also true that, by choice or by necessity, the news that people consume in print is not necessarily local. This is due to the discouraging, but increasingly common, development that there is no longer a "newspaper of record" in a given jurisdiction: Over the past two decades, local news outlets have been disappearing at a rapid rate, to the point that in over half of the counties in the U.S., there is no local daily (Abernathy and Stonbely 2023). In some measure, this has contributed to increasing the readership of publications that remain, but often to the benefit of more nationally-focused news outlets like the New York Times (with 9.4 million digital subscribers and an average Sunday print circulation of 677,000), rather than regionally or locally-focused publications like, for example, the New Orleans Times-Picayune (with 77,565 subscribers) (NYT 2024; LNA, n.d.). Not only is this decline expected to continue, it is projected to disproportionately impact "[C]ounties...located in high-poverty areas in the South and Midwest, and many serv[ing] communities with significant African American, Hispanic and Native American populations" (Abernathy and Stonbely 2023).
All of this adds up to a list of considerations that do not reflect positively on the equity-related aspects of newspaper notice:
- Decline in readership is a decline in number of people reached by notice.
- Remaining readers comprise a limited demographic profile (i.e., older and whiter).
- There can be a cost to access, and certainly a cost to publish.
- Diminishing availability of newspapers complicates meeting current requirements.
Digital-Only Local News Sites
If there is a bright spot on the media horizon, it is the establishment of approximately 550 digital-only local news sites, most of which launched in the past decade (Abernathy and Stonbely 2023). These news outlets are mostly in larger metro areas and are free to access. While there are options for subscriptions, the sites are generally not restricted by paywalls. The neighborhood-oriented focus of the sites means they cover news related to local development, thus appealing to a readership with interest in this topic.
One example of such a site is Block Club Chicago, which covers the majority of the city's 77 community areas. The site has specific pages devoted to news about different city neighborhoods, some with associated sub-areas and sub-pages. There are newsletters associated with particular neighborhoods, an associated TV channel, and podcasts. The site reports newsletter circulation of 130,000 recipients, while the Chicago Tribune's print circulation reaches 73,000 readers (Block Club Chicago 2024; Majid 2024). This is an inexact comparison — just because someone receives the Block Club newsletter does not mean they open or read it. However, as an example of the potentially high reach, possibly more pronounced interest in local development, and zero cost, versus the Trib's ranking on those factors, the comparison is illustrative of the advantage of considering such venues for publishing public notice.
Under the current definition in most state statutes, publication of notice through Block Club Chicago would not count as official legal notice. However, given the advantages such sites offer where they are popping up, it may be worth considering an update, at both state and local levels, to the current narrow parameters that apply to legal notice.
Here are some equity-related considerations related to using digital-only local news media sites for public notice:
- There is a large and increasing readership, with demonstrated interest in locally focused news.
- There is no cost for readers to gain basic access, though some subscription services are fee-based.
- Such sites may not meet statutory requirements for legal notice.
Consolidated State-Level Notice Websites
The decline in the accessibility and availability of local newspapers of general circulation has increased pressure to allow online-only publication of notice. This has raised concern from governments about the independence and reliability of online venues where public notice may be published, and pushback from newspapers fearing legal ad revenue may disappear. An increasingly common compromise between the two groups has been the proliferation of state-level consolidated websites that publish public notices.
In some cases, the notice is originally still published in a newspaper, but that paper is required, generally at no additional charge to the entity publishing the ad, to pass on the ad copy for the notice to the central website. In Arizona, the central notice website is operated by the Arizona Newspaper Association (Figure 2). Similar industry associations are responsible for sites in other states like Colorado (Colorado Press Association) and Minnesota (Minnesota Newspaper Association). Alternatively, in Utah, the centralized site is part of the state government and hosted on the state's website. Though beyond the scope of authority of local municipalities to implement, it is nevertheless a positive development that such centralized sites are becoming more common.
Here are some equity-related considerations related to using consolidated notice websites:
- They avoid issues of significantly diminished circulation for paper publications reaching progressively smaller audiences and, with the online versions of those publications, limited access due to paywalls or reluctance of users to register to gain access.
- They are also a convenient and centralized way to access this information.
Mailed Notice
Mailed notice is the second common traditional method of notice. It is often limited to a certain radius from the boundaries of a property where a zoning action is proposed. Mailed notice is used more broadly than legal ads. It is not limited to legislative actions that entail public hearings, though those actions nearly always require mailed notice.
Historically, the requirement for mailed notice extended only to property owners listed on tax rolls, whose property fell within the defined notification radius. The inequitable aspects of this practice are evident: Renters are overlooked and disenfranchised from public participation, even though proposed changes impact them no less than they do a property owner.
While state statutes have not been changed to recognize either the discriminatory or exclusionary aspect of this practice, a growing number of municipalities are making changes to this requirement on their own. Zoning ordinances are being updated to specify that notice must be mailed to property owners and occupants, tenants, or residents within the notification radius.
This change can have serious implications for planning staffers who have to prepare and send these mailings: Imagine what happens when a small number of large apartment buildings are included in a notification radius. In the past, this may have required notification of four or five owners, now that can suddenly increase to include hundreds of residents. The increased cost of such a change may be borne by an applicant, but it is hard to avoid the increase in staff time that is required to implement this change. This is a difficult prospect for staffers who are often already stretched to capacity, but something that departments concerned with expanding equity in their procedures need to consider how to achieve.
A side note to mailed notice is the increasingly common practice of providing mailed notice to some members of the public about administrative decisions, even when there is no public process associated with such actions. This practice has been adopted in the interest of transparency and broader dissemination of information, but when there is little to no possibility of affecting the outcome of a decision regardless of recipient feedback, such notice may serve to frustrate recipients and breed cynicism. In such cases, communities could consider alternative methods of disseminating this information. Posting an informational sign on the site where a by-right approval enables action may serve the cause of transparency equally well as a mailed notice and may be less subject to misunderstanding regarding the purpose of the notification.
Here are some equity-related considerations related to mailed notice:
- Ownership bias in mailing recipients is discriminatory and exclusionary.
- Expanding requirements to include notifying tenants or occupants is important.
- Weigh the benefits of providing notice regarding ministerial decisions against possible frustration among recipients that there is no action they can take.
- Including tenants and occupants in mailings represents a greater draw — in some cases, possibly a significant one — on staff resources.
- Applicants typically bear the cost for expanding mailed notices.
Posted Notice
Posted notice — the posting of a sign on a site with a proposed zoning action — is commonly described in local zoning ordinances but seldom addressed in state-level requirements. This discrepancy is unfortunate, as posted signs offer numerous advantages that other notice types do not offer. Posted signs can reach a far greater number of people than either published or mailed notice.
The reach of a sign is not limited by (arbitrary) proximity radius or ownership status. Because of the democratic nature of a sign, it can reach a wider audience and can allow that audience to self-select based on their level of interest. Maybe a passerby has no interest in what might happen at the site where the sign is posted. However, if someone does, they can follow up to get more detailed information. This is related to one of the limitations that signs do have, however, which is limited "real estate." A mailed notice can include all pertinent details about a public hearing, the proposed zoning action, and how to get additional information, but there is only so much information that can fit on a sign.
One common way around this limitation is to include a website where the reader can get more information. This requires the viewer to remember the website URL, perhaps not an insurmountable barrier but an extra step nonetheless. The rise in popularity of QR codes during the pandemic offers a neat solution to this issue, provided that the reader has a smart phone (Figure 3). These codes can lead readers not only to more information but also to the presentation of the information in languages other than English.
Here are some equity-related considerations related to posted notice:
- Signs are "democratic" — anyone who passes by receives public notice.
- When it is a staff responsibility (rather than an applicant's) to maintain signs posted in good condition until a hearing is over, it can be a time-consuming draw on resources.
Requiring Newer Means of Notice
Planners and local officials can improve equity in notice by using additional means that can help them reach groups that may be excluded by or face barriers with traditional means. With each of the options below, it is important to consider the likelihood of whether these methods could become methods of "official notice," that is, whether they would likely be approved by governing bodies for inclusion in zoning ordinances. The potential for acceptance and adoption of each method likely varies from place to place. While not all will become means of official public notice, that does not mean there is no value in implementing multiple types of notice, even if they are not official. In many instances, communities are already employing some of these methods to expand the reach of their notice practices, but efforts to codify these practices are comparatively rare.
Public or Neighborhood Meeting
The requirement for a public or neighborhood meeting prior to an application proceeding to public hearing is not uncommon; many places already have such requirements. Recently, however, some cities have added additional provisions to the requirements for neighborhood meetings that may enhance equity.
The city of Tacoma, Washington, for example, has an interesting provision in their notice requirements. In addition to the fact that Tacoma requires both property owners and occupants to receive mailed notice, the code includes a provision that, at the request of five owner recipients, a public meeting on the proposal must be held (§13.05.070.G.3). Similarly, Albuquerque, New Mexico, not only lists five official means of public notice (email, U.S. mail, posted sign, published notice, and website posting), the ordinance includes a provision for notice recipients to request neighborhood meetings with an option for professional facilitation (§14-16-6-4(L)).
Here are some equity-related considerations related to public meetings:
- Though originating from written notice, such meetings are one of the few ways for the public to get more information that does not rely primarily on writing.
- Because the meetings are typically arranged by the applicant, there is not a significant draw on staff resources.
- Some locations have or require translators at these meetings.
Local Jurisdiction or Planning Department Website
Websites are a primary means of information dissemination, and zoning codes should be updated to reflect this. Since websites are the first place most people think to look these days when searching for zoning or development related information, designating them as official means of notice ensures that people looking for this information will be able to find it.
Websites are subject to the usual access limitations of written material — and further issues where technology access or proficiency is limited. These groups are, however, at least in some cases, those who can be reached by traditional means of notice, such as older constituents who may not use the internet but still read a newspaper every day. From a staffing perspective, there is a time investment to add information and keep it current, but there is no financial cost (beyond the existing, underlying cost of IT infrastructure that every municipality is already carrying).
Castle Rock, Colorado, is one community that does specify in their zoning code that the town's website is an official means of notice: "The Town shall post a notice of the hearing on the Town's website seven (7) days prior to such public hearing, in the usual and customary location within the website for such notices. For the purpose of this Section, website shall mean the Town's website www.CRgov.com" (§17.04.060.C).
Websites can be used not only as a method for disseminating information, but as a means for receiving it too. Witness another Colorado community, Lakewood, which has the Lakewood Speaks website, where both applications and recorded staff presentations are posted prior to public hearings, allowing people to leave their public comments that way (see "Digital Public Hearings in a Post-COVID World" in the July 2022 issue of Zoning Practice).
There are positive equity aspects to this arrangement that other methods of participation do not offer. It enables respondents to participate on their own time, rather than having to show up at a fixed time and date for a public hearing. It also allows the public to register official public comment without the need to show up in person and speak at a public hearing.
Here are some equity-related considerations related to website notice:
- Website notice is where common practice meets best practice and should be codified as official notice.
- This is likely the first source people seeking information will turn to; it has the widest reach.
- There is no cost barrier for staff, and the draw on staff time is likely moderate.
Email Distribution or Newsletters
Email is to mailed notice what a website is to newspaper notice: What was once a new and untested method for disseminating information is now as common and pervasive as air. In recognition of this, there are an increasing number of locations with zoning ordinances that reference email as the default method of communication, specifying U.S. mail as a backup method.
Some of the advantages of email are obvious: There is no cost to it (beyond the existing, underlying cost of IT infrastructure that every municipality is already carrying). It also has some of the same disadvantages: Just as people who receive avalanches of junk mail throw it straight to the recycling bin without so much as cracking open an envelope, those who receive many bulk emails often move them straight to the trash unopened. However, at least in the case of an email newsletter, the recipient can sign themselves up to receive it (or stop receiving it). Email addresses do not appear on tax rolls, as mailing addresses do, but they are probably about equally likely to be a stable means of reaching a person. They're also free to send and can often use the same copy as a social media post.
It is becoming increasingly common that zoning codes recognize the use of email as an official method of notice. This practice is, at first, often limited to registered neighborhood associations, as in Tacoma (§13.05.070) and Albuquerque (§14-16-6-4(K)(2)). Email receipt is the default in Albuquerque (unless a neighborhood representative does not file an email address with the city's Office of Neighborhood Coordination), whereas in Tacoma's code, the recipients of notice must agree to be notified by email, rather than first class mail.
Wilson, North Carolina, has an interesting option for the use of email as a notification method. The city maintains a "Sunshine List," which — in addition to requirements for posting a notice in a physical location in the city hall and on the city's website — distributes email notice to registered members of the media and any member of the public who "filed a written request for notice with the City Clerk" (§15.3.1). Members of the public may also request to receive this notice by U.S. mail; however, they must pay an annual fee if they wish "to receive notices by any method other than e-mail."
Here are some equity-related considerations related to email notice:
- Email notification is common practice, even if not official procedure.
- Since email is already used by staff and recipients, there is a low barrier to implementing this method of notice.
- There is no additional cost to using email as notification.
- A small amount of staff time needs to be devoted to keeping distribution lists current.
Social Media
Despite the widespread proliferation of social media over the past decade, few (if any) cities, towns, or counties have adopted this an official means of providing notice. Given concerns over the accuracy of information on social media, and the public vicissitudes of the platforms themselves, this is understandable, possibly even prudent. [No municipality had to face the embarrassing prospect of a public hearing to remove MySpace as an official method of notice and replace it with Twitter...er, X.] However, even if it is too early to include social media announcements in a zoning ordinance as a formal means of public notice, it is nevertheless a recommended practice to use these accounts this way.
Even if the popularity of particular social media platforms may change over time, reliance on social media as a means of accessing information will not. In 2023, a Pew Research Center survey indicated that 50 percent of U.S. adults relied on social media as a news source "Always" or "Sometimes." This number is even higher for younger adults: for those 18–29, the figure is 69 percent, and 55 percent for adults 30–49. Regardless of age, social media also reaches more than half of Asian, Black, and Hispanic respondents (Pew Research Center 2023c).
Many cities and counties, large and small, are growing more adept and comfortable with the use of social media as a means of disseminating information, though not, to our knowledge, to provide official notice for public hearings. This is not, however, much different or more difficult than the now-common practice of providing such notice on a website and could be a good possibility to consider to extend the reach of public notices to new groups and individuals.
Here are some equity-related considerations for social media notice:
- Posts allow for rapid, timely dissemination of information and easy updates.
- This is a good way to reach younger people from diverse backgrounds.
- Because recipients self-select to receive the information, there is a higher chance of reaching those who are interested in it.
- Through reposts and retweets, information may be disseminated far more widely than the original audience.
- There are no additional costs to the local jurisdiction and a relatively low draw on staff resources.
Conclusion
No method of public notification is perfect, and each has advantages and disadvantages in terms of advancing or impeding procedural (or distributional) equity. As a general rule, implementing a variety of methods is likely to be more equitable than relying only on traditional, official methods. Where a given method has become common practice, take the step of "making it official" by having the governing body approve its addition to the zoning code as official public notice.
After assessing advantages and drawbacks of new methods for providing notice, try out various options, and see what kind of response they generate, if any. When a particular method proves effective, not just in the short term but over repeated use, then consider codifying its use. Discontinue use of ineffective notice methods, but keep trying to find new ways to engage more of the community in the public process. Sticking with the minimum requirements for public notice, particularly when there are some obvious and well-known drawbacks to that minimum, is generally not the best way to prioritize more equitable outcomes from the public process.
References
Abernathy, Penelope Muse, and Sarah Stonbely. 2023. The State of Local News 2023: Vanishing Newspapers, Digital Divides, and Reaching Underserved Communities. Evanston, Ill.: Northwestern University Medill Local News Initiative.
Block Club Chicago. 2024. 2023 Annual Report.
Louisiana Press Association (LPA). n.d. Membership Directory: The Times-Picayune | New Orleans Advocate.
Majid, Aisha. 2024. "Top 25 US Newspaper Circulations: Print Circulations of Largest Titles Fall 14% in Year to September 2023." Press Gazette, February 19.
New York Times (NYT). 2024. 2023 Annual Report.
Pew Research Center. 2023a. News Platform Fact Sheet.
Pew Research Center. 2023b. Newspapers Fact Sheet.
Pew Research Center. 2023c. Social Media and News Fact Sheet.
Weber, Matthew. 2009. "Insult to Injury: The Disappearance of Public Notices in US Newspapers." Los Angeles: University of Southern California Annenberg Center on Communication Leadership & Policy.
About the Author
Jenny Baker
Zoning Practice (ISSN 1548-0135) is a monthly publication of the American Planning Association. Joel Albizo, FASAE, CAE, Chief Executive Officer; Petra Hurtado, PhD, Chief Foresight and Knowledge Officer; David Morley, AICP, Editor. Learn more at planning.org/zoningpractice.
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