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Thread: Ex Parte Rules - Site Visits

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    Cyburbian plankton's avatar
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    Ex Parte Rules - Site Visits

    What is your position/understanding/professional opinion on members of a Planning Commission (or other quasi-judicial board) conducting individual site visits to a subject property?

    Thanks.

  2. #2
    Cyburbian PlannerByDay's avatar
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    Quote Originally posted by plankton
    What is your position/understanding/professional opinion on members of a Planning Commission (or other quasi-judicial board) conducting individual site visits to a subject property?

    Thanks.
    I think it is a great idea and the only way for the PC members to really see what is going on.

    Other the taking the word of staff and the appeal of the applicant at the meeting how can the PC member ask logical questions and make a accurate decision in the best interest of the communtiy, if they don't even know what is really happening in the real world.

  3. #3
    Cyburbian Cardinal's avatar
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    If they decide to educate themselves about a property, I am all for it. There is nothing wrong with them going out to a property, individually, to look it over. They can truly understand the impacts of the proposed project much better than they can from a staff report, site plan, or photos.
    Anyone want to adopt a dog?

  4. #4
    Cyburbian SGB's avatar
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    two concerns

    1. Do not allow the planning commissioners to go in any group size that could be considered a quorum, thus requiring public notice as an official meeting of the board.
    2. Make sure both your land use code and application forms note that both commissioners and staff have the right to enter onto any land that has an application pending review.
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

  5. #5
    Cyburbian PlannerByDay's avatar
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    Quote Originally posted by SGB
    1. Do not allow the planning commissioners to go in any group size that could be considered a quorum, thus requiring public notice as an official meeting of the board.
    Good point however, I feel that commission should know the rules regarding this, and it would be alright if several members showed up at the site at all at the same time assuming that they do not discuss business in front of them.

    As long as they don't discuss business they should be alright. RIGHT?

  6. #6
    Cyburbian Tom R's avatar
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    Ex Parte

    It is my (non-lawyer) understanding of this situation is that there should be no discussion between the commission members regarding the site and NO decisions are to be made. If a sufficient number of commission members are there to consitiute a meeting, then the site visit should be advertized etc. I have heard of commissions opening a hearing taking a recess going to a site then returning reopening the meeting and having the discussion. ASK A LAWYER.
    WALSTIB

  7. #7
    Cyburbian SGB's avatar
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    Quote Originally posted by PlannerByDay
    Good point however, I feel that commission should know the rules regarding this, and it would be alright if several members showed up at the site at all at the same time assuming that they do not discuss business in front of them.

    As long as they don't discuss business they should be alright. RIGHT?
    Keep in mind that the appearance of impropriety can be as damaging as the real thing. Better safe than sorry, I say.
    All these years the people said he’s actin’ like a kid.
    He did not know he could not fly, so he did.
    - - Guy Clark, "The Cape"

  8. #8
    Cyburbian zman's avatar
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    Quote Originally posted by Cardinal
    If they decide to educate themselves about a property, I am all for it. There is nothing wrong with them going out to a property, individually, to look it over. They can truly understand the impacts of the proposed project much better than they can from a staff report, site plan, or photos.
    I second that. i wished they'd go and see the pending appeals I am bringing into them....
    You get all squeezed up inside/Like the days were carved in stone/You get all wired up inside/And it's bad to be alone

    You can go out, you can take a ride/And when you get out on your own/You get all smoothed out inside/And it's good to be alone
    -Peart

  9. #9
    Cyburbian plankton's avatar
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    Quote Originally posted by Tom R
    ASK A LAWYER.
    Nah, that's what y'all are for.

    Actually, I have discussed this issue with our legal counsel but (shhhhh don't tell) I am more interested in learning from this group, what works and does not work.

    Thanks for your timely responses. I understand, and agree, with all of the points that were made. One question for Tom R (or anybody else):

    When you wrote, "...there should be no discussion between the Commission members regarding the site.....", you mean during the site visit itself not during the public hearing , right?

  10. #10
    I think that if you don't visit the site as a commissioner you are not doing your job. I can always tell what PC members have been to a site and what ones are just reviewing their staff reports at the meeting. Once you vist the site you have an understanding of the property itself as well as the adjacent properties. It gives you a chance to look at the surrounding land uses, architecture, and signage. Too many times commissioners will look at a plan on paper and make comments about the layout and as dumb questions that would have been answered by just driving by the site.

    As for the ex parte concerns, I think that the commissioners should go on their own so they can formulate their own opinions without the influence of others. However in every one of the communities I have worked the commissioners were friends, neighbors, etc and they discussed things outside of the meeting anyhow.
    "I'm a white male, age 18 to 49. Everyone listens to me, no matter how dumb my suggestions are."

    - Homer Simpson

  11. #11
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by plankton
    What is your position/understanding/professional opinion on members of a Planning Commission (or other quasi-judicial board) conducting individual site visits to a subject property?

    Thanks.
    That depends on state law. When I was in California it was a common and legal practice (and a good idea, IMO). It was prohibited in Idaho (even telephone calls to an elected/appointed official were required to be reported before a public hearing started). Here in Florida...hummm, good question; I'll look into that tomorrow.

  12. #12
    Cyburbian The One's avatar
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    Ex Parte Ex Schmarte.....

    I used to work for a place that required staff drive either the Planning Commission or Board of Adjustment to all sites on the agenda (with lunch). And this one time at "band camp".....er uh....
    The BOA made the final decision on variances and special uses and the PC was only advisory and both were noticed before the meeting, but we never had public at the site....but that was a long time ago and haven't seen it since. I have advertised a site visit for the Planning Commission and residents did show up and it was very productive....taking minutes was difficult in the cow pastures.... Don't be afraid to advertise a meeting on a site, if its important enough....but lately, with digital photo's and imagery that may not be needed.
    Skilled Adoxographer

  13. #13
    moderator in moderation Suburb Repairman's avatar
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    Each of my P&Zers has a cliff's notes version of the Texas open meetings regs. I ask them to let me know when/if they plan on visiting the sites so I can either post the meeting or make sure they don't make the magic quorum.

    I think site visits are great and really help the Commission see for themselves what is going on. A map with contours doesn't say nearly as much as going to the site and seeing how much hilltop is about to be sliced off to accomodate a development proposal.

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  14. #14

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    What no one has mentioned is a true ex parte contact: a PC member visiting the site on his/her own and talking to the owner/proponent. That MUST be reported, and should be avoided. Organized, properly noticed site visits are hard to organize but they avoid the whole ex parte issue because everything everybody says is on the record.

  15. #15
    Cyburbian Emeritus Chet's avatar
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    I encourage individual on site reviews, but my commissioners all know to avoid a quorum that results in an illegal meeting.

    On occassion, we have wanted to tour a site as a group and have posted a scheduled site walk as a public meeting.

    RELATED: The use of email by Plan Commissioners to banter back and forth by "reply to all" about a pending agenda item. Avoid this at all costs or you will likely be in violation of your state's public meetings laws.

  16. #16

    What Lee said

    Lee hit the only rub in a site visit, do NOT discuss the issue with the owner/applicant. I thought site visits were required but on my board, I seem to be the only one with the time to at least drive by. Any ideas on how to improve this?

  17. #17
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by nighthawk1959
    ...., do NOT discuss the issue with the owner/applicant. ...
    That was not my experience in California with elected/appointed officials. Generally, they disclosed the contact. Nevertheless, come on, it goes on behind our backs.....

  18. #18
    Cyburbian Tom R's avatar
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    visits

    Quote Originally posted by plankton
    Nah, that's what y'all are for.

    Actually, I have discussed this issue with our legal counsel but (shhhhh don't tell) I am more interested in learning from this group, what works and does not work.

    Thanks for your timely responses. I understand, and agree, with all of the points that were made. One question for Tom R (or anybody else):

    When you wrote, "...there should be no discussion between the Commission members regarding the site.....", you mean during the site visit itself not during the public hearing , right?
    That's my understanding.
    WALSTIB

  19. #19
    NIMBY asshatterer Plus Richmond Jake's avatar
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    From Florida Statutes:

    "The substance of any ex parte communication with a local public official which relates to quasi-judicial action pending before the official is not presumed prejudicial to the action if the subject of the communication and the identity of the person, group, or entity with whom the communication took place is disclosed and made a part of the record before final action on the matter."

  20. #20
    Cyburbian mike gurnee's avatar
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    I have argued with attorneys for years about this topic. The quoted FL statute reflects my feelings. It is not ex parte if it is disclosed. You cannot stop a board member from driving by a site, you cannot stop one on one conversations. If it happens, disclose the conversation at the hearing. In a small town board members will see the applicant at the store, in church, on the golf course. They will talk.

    Train the board to say at the public hearing, "I went by the site, and while there the owner came up and said..." As Lee said, try to avoid it, but it is going to happen.

  21. #21
    Cyburbian plankton's avatar
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    Thanks again for all the good feedback and advice. I've gotta go do a site visit now......

  22. #22
    Cyburbian solarstar's avatar
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    Each member is polled before the applications are heard as to any ex parte communications - if they did site visits they will state it at that point. That covers the state statute to the attorneys' satisfaction. I agree that site visits are important, and are better than any photos or aerials that staff can provide.

  23. #23
    Cyburbian Plus Whose Yur Planner's avatar
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    Quote Originally posted by Chet
    I encourage individual on site reviews, but my commissioners all know to avoid a quorum that results in an illegal meeting.

    On occassion, we have wanted to tour a site as a group and have posted a scheduled site walk as a public meeting.

    RELATED: The use of email by Plan Commissioners to banter back and forth by "reply to all" about a pending agenda item. Avoid this at all costs or you will likely be in violation of your state's public meetings laws.
    I second what Chet said. We actually assign two members to visit the site. As to whether that actually happens......


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  24. #24
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    It is not just discussion between PC members

    In Michigan, the issue is not just a concern about a quorum discussion stuff outside of the posted meeting. It is also not discussing stuff with the applicant, or neighbor who sees you looking at the property and comes over to talk to you.

    A planning staff person, and a board member need to do everything they can to tell tha person to save their comments for the public hearing.

    The idea is what is said to a person, at the site, is not heard by others who may want to respond or take issue with what is said. In an administrative hearing (planning commission and appeals board) everyone has the right to hear what everyone said, and has to have to opportunity to respond. When stuff is said outside the meeting (like between the neighbor and member of the PC doing a site inspection) that undermines that fundamental idea of a "fair" hearing and review of a case before judgement is made.

    In Michigan we have had judges do really nasty things to communities that did not take into account their behavior with this concern.

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