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Zoning boards

Bill Huggins

I am looking for approaches that other jurisdictions take with ex-parte contact issues for Zoning Boards. Our attorney has informed us that staff should not "discourage" such contact by applicants with Board members. He argues that it's a freedom of speech issue, and I simply disagree. I'd like some thoughts and approaches on the issue.

Aiken, S. C.

Joe Iliff

Reformed City Planner
I'm not a lawyer, but here is my opinion.

It's not so much a free speech issue, as a right to participate issue, right to open government issue. Ex Partie contact can make a Board member prejudiced on an issue before the public hearing starts. The Board should make decisions based on the "evidence" and "testimony" presented in the public hearing on the matter.

Tell your lawyer it's the same as washing out a potential juror on a case where they've gotten a significant amount of knowledge on the case from outside the court, or a sequestered juror being removed for discussing the case with non-jurors. The applicants and the public have the right to have all the "evidence" presented in an open public forum.

I don't know that it's a crime to engage in "free speech" on the issue outside of the hearing, but it could very well invalidate the decision the Board makes if a court believes the contact undermined the open door laws most states have.

Linden Smith


I would agree completely with Joe, your lawyer is wrong about the free speech issue. A quasi-judicial body, such as a planning commission or board of adjustment is like a sequestered jury. The decision must be made based upon information given at the public hearing. Contact outside that hearing is not protected speech. It is very important to the public perception of integrity to the process that outside contact be prohibited. I would not even give out the names of the commission members, let the mayors office handle those requests.

Jerry Weitz

If the planning commission is acting in a quasi-judicial capacity, I too would disagree with the local attorney. I don't think it is a "free speech" issue as much as it is a "biasing" of planning commissioners and a "perception" of collaboration on the part of the planning commissioner with the developer (in other words, ethical and due process considerations).

Regardless of legal issues, I would recommend that the planning commissioners be advised to disclose any ex parte contacts, the information received, and state whether they are able to render an unbiased judgement on the subject case. If not, they should recuse themselves.

All of this changes if the matter being considered is "legislative." Jerry Weitz


A few little things to add:

1. Don't forget that taking a look at the property (e.g. driving by) is an ex parte contact -- it results in gathering evidence that isn't available to everyone in the hearing. It's a technical issue, but in all fairness the viewing should be disclosed.

2. Ex parte contacts aren't illegal or even bad, per se. Board members shouldn't be embarrassed about disclosing them. If anything, disclosure will make them look better, since they will be demonstrating concern with ethics and procedural rights.

3. Disclosure generally cures whatever problems there may be with ex parte contacts. Describe the nature of the contact (I talked to some concerned neighbors), describe the substance of the contact (who told me they didn't want another tall building in the neighborhood), and say whether you can make an unbiased decision. If you can, you can participate. If you can't you should step down.

I'm a lawyer as well as a planner. Tell your lawyer it's a due process issue, not a free speech issue.